Q: Mom is denying parenting time from dad due to virus because mom has asthma. Can father win if he files emergency motion?
Can one parent deny the other parent parenting time because of the virus if the other parent has been acting responsibly?
A: There is an insufficient factual basis to determine the answer to your question. You really need to have a virtual consultation with an experienced NJ matrimonial attorney. I have asthma and underlying health conditions, but I take the proper precautions and I am able to handle a great deal of things. But asthma alone without more is unlikely to have a Judge rule in your favor.
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A: In theory, dad should win. In reality, any lawyer who tells you that he / she can file an emergent application at this time and can tell you how the judge assigned to handle this issue will response, is being disingenuous with you. To begin with, emergent parenting time applications are being handled differently in every county because of differences in available resources. Next, when the court asks the mother as to her reasoning for seeking to prevent the physical contact, she is going to allege that dad works and therefore is exposed to a greater potential for the virus and her fear is that the children can then contract it from dad and bring it home to mom, causing her to become seriously ill, given her compromised immune system. Now, place yourself in the position of that judge, ordering the parenting time and then mom becomes violently ill and dies from the virus. Most likely will not happen but the issue will focus on what dad does for a living, his social distancing efforts and the courts confidence that the children will not be exposed to the virus while in dads care. In a recent matter, the court addressed the setting where the mother was an emergency medicine doctor treating virus patients in a hospital setting and the father had a compromised immune system and he was fearful that permitting the exchange would result in him being exposed and potentially becoming seriously ill. Ultimately, an agreement was worked out where the mother agreed not to work in the hospital setting with virus patients to ensure that the children and father were safe. My suggestion is to contact the other parent and agree to retain a family law specialist to act as a mediator and work with both of you on an interim plan for parenting time. He/ she may be able to come up with a suggested solution acceptable to both parties and the children.
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Thank you for your question. Unfortunately this frustration is becoming very common. Many courts in New Jersey have ruled that absent a credible threat of the virus, i.e. someone in the household testing positive, parenting time should continue per the most recent court order. That being said, every case is unique.
Father might be able to prevail in an Order to Show Cause, but he should first consult with an experienced family law attorney. It is no longer possible to go to the courthouse and file something, or even to mail a copy. Therefore assistance of counsel is even more important at this time.
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