Q: I have a parenting plan with my ex husband, I am concerned about travel from home to home due to COVID-19.
I have offered to give him days if I hold onto the kids until COVID clears, he declined and wants to pass them from house to house. What are my rights? He and his wife are currently working, his wife works in healthcare, and they have 2 additional daughters who attend daycare. I have a daughter and fiance to think about as well. How can I receive an immediate order to override the current parenting plan. Additionally, the children are attending home school, which he does not have the equipment nor time to home school them. This would be severely disruptive to their schooling. He has not paid child support since January 2020.
A: To answer your question, you have a right to seek an Emergency Protective Custody Order that may or may not be granted.
Once filed, you would be set for an Emergency PCO hearing. At the hearing you would need to establish that the facts and circumstances are sufficient to lead an ordinarily prudent person to believe the child is at risk of suffering immediate harm if the current custody and visitation order is not modified appropriately.
If you are successful in showing the child is at risk of immediate harm then the court will schedule an adjudication and disposition hearing on a later date, where the burden of proof changes. At that hearing you would need to establish that the facts and circumstances show "clear and convincing" evidence that the child would be at risk of harm if the custody order is not changed. If successful, a new custody and visitation order would be issued.
Currently, only emergency hearings related to custody are being heard by the courts right now. Also, it is likely that the later adjudication hearing would happen only after the Tennessee Supreme Court determines it is "safe enough" for the courts to be open for in-person proceedings. At that time, I fear you would be less likely to prevail based on your initial argument asserting an immediate risk to the child.
Note: You need to know this information - Nonpayment of child support is not relevant to a custody and visitation modification based on an immediate risk of harm to the child. It is however relevant to show that it MAY be your motivation in filing for the modification in the first place as a way to "punish" the father.
You need to consult with a child custody/visitation lawyer if you wish to pursue this matter.
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