Posted by: Kaleb Byars on Apr 23, 2020

Journal Issue Date: May 2020

Journal Name: Vol. 56 No. 5

Prior to issuance of any stay-at-home order, Little Johnny, a native of Tennessee,1 spent the weekend with Dad as he always does per Mom and Dad’s child custody arrangement. Mom asks Johnny about his weekend, and Johnny tells Mom that Dad took Johnny to every conceivable public accommodation in operation.

Dad and Johnny went shopping. They saw a movie. They even went out for ice cream after Johnny accompanied Dad to a wedding with over 500 attendees. 

Needless to say, Mom is furious. Given the COVID-19 crisis, Mom prefers for Johnny to minimize contact with the public to diminish the possibility that Johnny will contract the virus. Further, Mom believes that if Johnny lessens his contact with the outside world, it is less likely Johnny will transfer the virus to her after Johnny spends the weekend with Dad. 

What alternatives are available to Mom to ensure Johnny engages in social distancing while spending the weekends with Dad? Can she refuse to deliver Johnny to Dad unless he agrees that Johnny will stay home? Can she seek modification of her and Dad’s custody agreement in the interest of Johnny’s and her safety? This article provides an important alternative for Mom to consider. 

COVID-19 has spread rapidly throughout the United States during the past month.2 Indeed, the pandemic is projected to significantly worsen long before any meaningful improvement.3 Earlier this year, the novel coronavirus appeared as merely a distant threat, yet it has now reached and substantially affected Tennessee.4 

As COVID-19 spreads, it undoubtedly carries with it a host of legal issues.5 This article seeks to address one of those issues. Namely, it answers the following question: What options are available to a child’s parent when the child’s other parent who has shared physical custody of the child refuses to take precautions during a pandemic such COVID-19?6 

One alternative concerned parents may employ to protect their children and themselves is to seek a court order modifying their present custody arrangements. While parents might already have existing custody arrangements (set, for example, upon dissolution of the parties’ marriage), parents may seek modification of child custody arrangements in light of “changed circumstances.”7 Markedly, a showing that the initial “parenting plan [is] no longer in the best interest of the child” constitutes sufficient changed circumstances such that a party may be able to file a petition to modify the initial custody agreement.8 Thus, in our hypothetical case, if Mom can show that Dad’s behavior severely harms Little Johnny’s interests such that it is in Johnny’s best interests to reside with Mom during the COVID-19 crisis, Mom could seemingly secure a court order modifying Mom and Dad’s custody obligations and granting Mom custody of Johnny during the crisis.

One may be skeptical that this solution is not practical given that the Tennessee Supreme Court recently filed its “Order Suspending In-Person Court Proceedings.”9 However, the Order specifically excepts “[p]roceedings related to emergency child custody orders” from its general postponement of in-person proceedings.10 Arguably, a mother seeking to protect her child and herself from the pandemic would (or at least should) constitute an emergency child custody proceeding. This is especially true if Dad himself becomes infected with the virus.11 Moreover, this option provides a pragmatic solution because, if necessary, parents can remodify their agreements after the COVID-19 crisis based on new changed circumstances. Even more, courts can frame their opinions to mandate temporary rather than permanent modification of child custody. 

Undoubtedly, seeking modification of child custody is an extreme solution to a temporary problem. Thus, it is important to consider less extreme alternatives. Most notably, the parents could simply consent to a modified custody agreement. Of course, that solution might not be practicable where one parent persists in irresponsible behavior that subjects the child to the risks associated with failure to practice social distancing.

In conclusion, the COVID-19 crisis has severely impeded daily life, the legal profession, and society at large. Nevertheless, Tennessee lawyers and parents must remain aware of their options in the event that a parent wishes to take actions to shield his or her child from the child’s other and perhaps more irresponsible parent in the COVID-19 climate. While it may appear to be an extreme solution, and while less severe measures may be preferable, lawyers and parents should be aware that seeking a modification of their existing child custody agreements is an option that remains viable to keep Little Johnny safe.

KALEB BYARS is a juris doctor candidate at the University of Tennessee and current editor-in-chief of the Tennessee Law Review. He earned his bachelor of science in business administration, summa cum laude, in economics and finance at the University of Tennessee at Martin in May 2018. He expresses sincere and special thanks to Professor Michael J. Higdon for spurring the idea for this article.



NOTES
1. See Nick Gray & Yihyun Jeong, “What We Know, Don’t Know about Tennessee’s Stay-at-Home Order,” The Tennessean (Apr. 2, 2020, 3:31 p.m.), https://www.tennessean.com/story/news/politics/2020/04/02/tennessee-state-at-home-
order-what-we-know-coronavirus/5115350002.

2. The Visual and Data Journalism Team, “Coronavirus: A Visual Guide to the Pandemic,” BBC News (last updates Mar. 31 6 p.m.), https://www.bbc.com/news/world-51235105 (noting that the United States has reported 174,159 cases of COVID-19 as of March 31, 2020).

3. See Rick Noack et. al., “Live Updates: White House Task Force Projects 100,000 to 240,000 Deaths in U.S., Even with Mitigation Efforts,” Washington Post (Mar.31, 2020 9:16 p.m.), https://www.washingtonpost.com/world/2020/03/31/coronavirus-latest-news.

4. Joel Ebert and Brett Kelman, “Facing Pressure over Transparency, Tennessee to Begin Listing Coronavrius Deaths by County, Governor Announces,” The Tennesseean (Mar. 31, 2020, 3:17 p.m.), https://www.tennessean.com/story/news/politics/2020/03/31/transparency-
tennessee-begin-listing-coronavirus-deaths-county-governor-announc/5095718002 (noting 2,239 residents of Tennessee were infected with COVID-19 and 23 Tennessee residents had died from the virus as of March 31, 2020).

5. See, e.g. Bailey D. Barnes, “Estate Planning During COVID-19: Easing Will Formalities to Allow Virtual Execution,” Mitchell Hamiline L. Rev. Amicus Curiae Blog (Apr. 1, 2020) (arguing that traditional will execution formalities should be relaxed to permit virtual execution of wills).

6. This issue is exacerbated by court orders that provide that parties are to continue to comply with physical custody arrangements during the COVID-19 crisis. See Scott Broden, “All Parents Must Adhere to Custodial Conditions While Schools Are Out, Court Order Says,” Daily News Journal (Mar. 27, 2020, 1:29 p.m.), https://www.dnj.com/story/news/2020/03/27/court-orders-parents-follow-custody-conditions-while-schools-closed/2927335001.

7. Tenn. Code Ann. § 36-6-101(a)(2)(B)(i) (2020).

8. Id.

9. See generally In re COVID-19 Pandemic, No. ADM2020-00428 (Tenn. 2019).

10. Id.

11. Indeed, some judicial districts have already issued emergency standing orders addressing the consequences of a parent or child’s contracting of COVID-19 and the corresponding effects to parenting plans. See “New Emergency Standing Order Regarding Tennessee Custody Orders and Parenting Plans,” Grimes, Sensing & Clemons PLLC, (Mar. 20, 2020), https://www.jeffrygrimes.com/clarksville-criminal-defense-blog/2020/march/new-emergency-standing-order-
regarding-tennessee.