Stay at home – But which home?

ByAllison McFadden in Family Law, Child Custody March 31st, 2020

As Governor Hogan’s most recent amended Executive Order went into place at 8:00 p.m. on March 30, 2020, the question of where their child would be staying for the imminent future was certainly running through the minds of many separated parents in Maryland. 

Governor Hogan’s Executive Order is the latest effort to slow the spread of the COVID-19 virus.  The Executive Order expands upon prior Executive Orders, and is no longer recommending that individuals stay at home, but now ordering individuals to do so.  Individuals who violate the Executive Order may be found guilty of a misdemeanor, subject to imprisonment of up to a year and/or a fine not to exceed $5,000.00.  Governor Hogan has made it clear that local law enforcement will be enforcing the Executive Order.  The latest Executive Order can be found here: https://governor.maryland.gov/wp-content/uploads/2020/03/Gatherings-FOURTH-AMENDED-3.30.20.pdf

So what does that mean for families whose children who spend their time in more than one household?  Parents have been asking this question now for several weeks, as concerns about COVID-19 have grown and the government has issued increasingly stringent recommendations about social distancing and only leaving one’s residence when absolutely necessary. 

Generally, the guidance has been that parents must continue to follow any court order or agreement they have regarding custody.  This means that time-sharing schedules should continue to be followed.  Of course, for many families, adjustments are needed due to school and daycare closures, changes to employment, etc.  Additionally, for many families there may be additional, necessary precautions that should be followed to ensure the health and safety of the child.  As always, parents are encouraged to work together to reach an agreement that is best suited to their child.  If they are unable to do so, the court order will control.

Now with Governor Hogan’s March 30, 2020, Executive Order, parents are now are asking – am I in violation of the Executive Order if I leave my home for a custody exchange?  The Order specifically allows individuals to leave their homes for “essential activities” and includes a listing of such activities.  One activity specifically included is travel required by a “court order,” including the travel necessary to effectuate a time sharing schedule included in a custody order.  It is recommended that individuals carry a copy of their custody order with them as they do exchanges, in case they are stopped by law enforcement.  It is not clear whether the Executive Order allows for custody exchanges that are part of an agreement between the parties, where the agreement has not been incorporated into a court order, and interpretive guidance has not yet been provided on this specific issue.

Allison McFadden

As a Senior Counsel in the firm’s Family Law practice group, Allison McFadden focuses exclusively on protecting and enforcing the rights of spouses, parents and children involved in complex and emotional family law matters before courts in Montgomery County and throughout Maryland. Her practice covers every type of family law matter that impacts the lives of her clients, including the following:

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