Can I make up lost parenting time due to quarantine during the COVID-19 pandemic?
I practice law in the state Ohio. Unless you live there, I cannot inform you as to the specific laws of your state, but I can provide you with general tips in divorce and child custody, as it relates to the COVID-19 pandemic.
Ohio courts have been very clear on this point. They have indicated that all parenting exchanges and schedules continue to be in full force and effect. If your child has not been on spring break yet, any time off due to the pandemic would be deemed regular parenting time, and the scheduled spring break would still be treated separately under the holiday schedule of your county or orders governing your parenting time currently in effect.
However, if parenting time is missed, the courts will most likely grant make-up time after restrictions have been relaxed. I have been recommending agreement on the make-up time before forgoing the parenting time itself to all my clients.
While it is clear the courts will still expect people to follow the current orders, it is unclear whether such denials of parenting time will result in findings of contempt. Under Ohio law, if there is a finding of contempt, you can be entitled to receive a portion or even all your attorney fees spent to prosecute the action.
However, the court has a lot of discretion in making those awards. As such, I have concerns that the courts will likely find the denial of parenting time during the pandemic a reasonable reaction, and thus, not egregious enough to result in an attorney fee award. While this assessment may be incorrect, it has been my experience that you only receive a portion of attorney fees, never the whole amount even in the strongest of cases. Therefore, I suggest establishing the make-up parenting time dates prior to conceding parenting time.
I want to stress that this is in relation to the Ohio laws and orders currently in effect. These health measures change almost daily, so you need to be sure you are following up with the numerous resources offered through your state to check and see what the current orders are. Many states that have taken such measures still have carved out exceptions that include parenting time exchanges, so again, be sure to carefully read the current orders in effect.
Finally, if there is a lockdown and parenting exchanges are not excluded, I would still expect courts to grant make-up parenting time for any time missed during the pandemic.
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