Are you part of a parenting plan? If so, the question as to whether you should be observing the parenting order in place and continuing to make parenting exchanges during this COVID-19 global pandemic has surely crossed you mind. Over the last three weeks one of the main questions faced by family law attorneys across the state of Colorado has been whether traveling for the purpose of adhering to parenting schedules is considered “Essential or Necessary Travel.” The short answer is Yes!

Defining “Necessary Travel”:

On March 25, 2020 Governor Polis issued Executive Order D 2020-017, “Ordering Coloradans to Stay at Home Due to the Presence of COVID-19 in the State” and the Colorado Department of Public Health and Environment (CDPHE) issued Amended Public Health Order 20-24, “Implementing Stay at Home Order Requirements.” These orders, among other things, state what activities are designated as “Necessary Activities.”

The underlying requirement states “All individuals currently living within the State of Colorado are ordered to State at Home whenever possible. Individuals living in shared or outdoor spaces must at all times, to the greatest extent possible, comply with Social Distancing Requirements, and may lease their residences only to perform or utilize Necessary Activities.”

The remainder of the order goes on for several pages, outlining what activities and businesses are designated “Necessary,” which includes the following;

  • “Necessary activities” such as leaving home to obtain medical treatment, household supplies, items necessary to work from home, engaging in outdoor activities (observing social distancing), or performing work for a critical business or governmental function.
  • “Necessary travel” includes travel for a necessary activity, or for our purposes, “travel required by law enforcement or court order” (paragraph III.B).
  • “Critical Businesses” include health care operations, critical infrastructure or manufacturing, critical retail (grocery stores, gas stations, and, oddly, liquor stores and marijuana dispensaries), various critical services (e.g. trash, utilities, day care, laundromats), media, and others.
  • Some legal work is also excepted. Paragraph III.D. authorizes: “Judicial branch operations, including attorneys if necessary, for ongoing trials and required court appearances, unless appearances can be done remotely.”

A Parenting Plan is A Court Order:

A parenting plan is a court order (including a signed stipulation) and remains enforceable even in this uncertain time. Most parenting plans have provisions regarding parenting time exchanges that dictate when the child is to be exchanged, where a child is to be exchanged and who is to provide the transportation. These are court ordered travel provisions that are permitted even in the face of the “stay at home” orders. Adhering to this order is essential to ensure the best interest of the child and to mitigate potential new conflicts between former spouses. Travel necessary to comply with a court order is explicitly authorized and deemed Necessary Travel.

Governor Jarred Polis further clarified this understanding on March 27, 2020 in his Friday news conference on COVID – 19. Polis's stated:

"It's also important to clarify that parents transporting children to comply with parenting plans is, of course, allowed. Those are not exempt, if you share custody, those need to continue." (Colorado (Governor Polis - Conference On Covid-19 in Colorado, March 27, 2003, 07:12) .

Additionally, some districts have individually issued orders regarding court operations during this time, reiterating Polis. For example, on April 3, 2020 Chief Judge Bain of the 4th Judicial District issued Chief Judge Order 20-16 Regarding Court Operations Under The Novel Coronavirus (Covid-19) Advisory Effective April 3, 2020 Through May 1, 2020. It is clearly stated, in bold print, that coronavirus does not affect parenting exchanges:

“All Parties are advised that all existing court orders, including parenting time and parenting exchange orders, are not suspended by the Stay-at-Home Order issued by Governor Jared Polis, and shall continue to be followed unless otherwise modified by the court or agreement of the parties.”

Adjusting or Modifying Parenting Plans Without the Use Of The Courts:

During these uncertain times it is important to stay up-to-date on the various orders, their implementation and what that means. It is understandable to worry about your children and to not want to expose them to additional risk. Addressing potential parenting time issues before they occur is lucrative--this may mean adjusting a parenting plan on a temporary-bases. However, this cannot be done by one parent, both parents must be on board. Co-parenting is ever so important and co-parents must communicate and work together to adjust parenting plans in ways that meet their children’s individual needs, including among other important matters, making sure everyone is on the same page about your child’s academic progress, physical needs and mental health.

Everyone is scared and everyone’s routines have been completely interrupted. A temporary change in the plan may be best for all parties involved. In order for a temporary adjustment to work parents must establish a common ground and rules. If parents are unable to agree on modification to the current parenting plan or meet on a new temporary parenting plan, then the existing plan remains in full force and effect and must be complied with. We know it’s not always possible for co-parents to work amicably together, and although your first instinct may be to take matters into your own hands, whether through the court or otherwise, it is important to consider the impact those decisions may have on your child and your ability to successfully co-parent in the future.

The attorneys at Feldmann Nagel Cantafio are here to help you. We are committed to doing everything we can to ensure our clients are updated as new developments surface and have the support needed to navigate these uncertain time.