By Brian Karpf, Esq. and Andrew Wilson, Esq.

It goes without staying that the COVID-19 pandemic has very quickly upended day-to-day life across South Florida and around the globe.  On April 2, 2020, the State of Florida issued Executive Order 20-91, which in short required all Floridians who are not engaging in limited “essential activities” to remain at home.  For the thousands of parents across South Florida, COVID-19 has raised many questions about timesharing, exchanges of children, and how to adapt court-ordered parenting plans to the uncertainty of this pandemic.  Many parents are asking – “if I’m in lockdown, do I have to turn my children over to my co-parent?”  And the answer to that question thus far is sometimes YES and sometimes NO. How can that be? Read on.

Miami-Dade County’s Administrative Order 20-06 and Broward County’s Administrative Order 2020-30-Temp address this issue and other parenting-related issues, and it is likely that other jurisdictions will follow suit with the spirit of their Orders.  “[R]egular timesharing as set forth in a Parenting Plan shall continue until the date the School District…announces the last day of school at which time summer timesharing shall begin.”  This means that even if school isn’t in session, parents need to operate as though school remains in session through the end of the school year.  The Order notes that parents should be flexible with each other on the exchange location if, for example, the exchanges were at a school which is closed.  Broward County’s order contains similar language.

If either parent’s local jurisdiction, or the Governor, issues a “stay at home” or “shelter in place” order that prohibits movement, parents need to follow their jurisdiction’s laws.  However, Broward County’s Order states that if regular timesharing can still occur consistent a “stay at home” order, timesharing – and thus exchanges – should still occur. 

As of the present time, different Judges across the tri-county area have reached different conclusions. Some Judges continue to enforce timesharing exchanges; others have decided that the exchanges should stop (or, at least, they will not get involved in such disputes) until the COVID-19 restrictions are lifted. Parents need to understand that the result of their dispute will depend upon their Judge; just because they have a friend or “know somebody” who was able to stop exchanges – or continue them – does not mean that their Judge will rule the same way, even on similar facts.

Regardless, parents should ensure that “video-conference and phone contact” continues pursuant to a parenting plan “and should be increased to ‘regular and consistent contact.’”  The county Orders provide for this.  What does this language mean?  If your parenting plan says that the children speak to the other parent once per day, the parent who has the children should make sure the children have more frequent access to the other parent if they wish.  That may mean two or three calls per day if the children are particularly scared or require alleviation.  Again, the best practice is to be flexible and make sure the children hear from both parents on a daily basis at a minimum. Remember, this is not about control; it is about fear and love during an uncertain and scary time.

Also, if timesharing exchanges do stop, remember that makeup timesharing will generally be ordered. So, if a party withholds the children from the other parent for, say, a full month and their presiding Judge does not deem the exchanges necessary at this time, that same parent will later lose a month with the children. Thus, it is important for both parents to think about their children’s best interests while also putting themselves in the shoes of the other parents.

The best approach is to be reasonable and flexible during this uncertain time.  It is the public policy of the State of Florida that children get to enjoy time with both parents.  Both Miami-Dade and Broward County’s Orders require communication and putting the children’s interests first.  Even if you and your co-parent have a difficult relationship, those difficulties should be shielded from the children and they should continue to enjoy time with each parent.  If that means that a temporary pickup location change, parents should “take the high road” – Broward County’s Order requires parents to exchange at a police station if they can’t agree on a new pickup location.  Certainly children shouldn’t have to see their parents exchange in front of police officers if it can be avoided.

Why?  Because both Miami-Dade and Broward explicitly warn of sanctions for parents who engage in “unreasonable” behavior, with Broward County’s Order advising that makeup-time for a parent who lost time – even if the other parent acted reasonably – should be presumed.   Further, “each parent is prohibited from unreasonably restricting access to the child(ren) to the other parent.”  In other words, the courts are sending out a warning shot that parents who weaponize the societal limitations imposed on us by the COVID-19 pandemic to prevent their children from seeing one of their parents will have consequences. 

During this uncertain time, children should continue to enjoy a routine with both parents as much as possible.  Now that Florida’s judiciary has issued guidance about how parents are expected to conduct themselves during the COVID-19 pandemic, parents are advised to heed closely to these orders and be reasonable and flexible to ensure that their children enjoy time, both in person and over the phone, as much as possible. 

Remember that we are all human beings. Be reasonable, think smart, act with love, stay safe, and keep washing those hands.