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Governor Kemp Clarifies Shelter in Place Order’s Effect on Custodial Arrangements

Posted by on April 17, 2020 in Blog, Child Custody and Visitation | Comments Off on Governor Kemp Clarifies Shelter in Place Order’s Effect on Custodial Arrangements

On March 14, 2020, Governor Kemp issued Executive Order 03.14.20.01 declaring a public health state of emergency in Georgia to stop further spread of Covid-19. He then issued Executive Order 04.02.20.01, directing all residents and visitors of the state of Georgia to practice social distancing and to shelter in place in their homes. As with most shelter in place orders nationwide, there was a great deal of confusion and concern over its exact scope. One of those concerns was what the order meant for joint custody arrangements and whether transporting children between homes would be prohibited. Governor Kemp subsequently clarified in Executive Order 04.03.20.01 that the shelter in place order would not prohibit such travel. For more detailed information about Governor Kemp’s executive orders and what they mean for child custody and visitation, please contact an Alpharetta family lawyer

Georgia’s Shelter in Place Order

The original shelter in place order directed Georgia residents and visitors to shelter in place in their primary place of residence and to minimize social interaction to prevent the spread of Covid-19. Residents are not to leave their homes unless they are: 

  1. Conducting or participating in Essential Services
  2. Performing Necessary Travel
  3. Are engaged in the performance of, or travel to and from, the performance of Minimum Basic Operations for a business, establishment, corporation, non-profit corporation, or organization not classified as Critical Infrastructure, or 
  4. Are part of the workforce for Critical Infrastructure and are actively engaged in the performance of, or travel to and from, their respective employment. 

“Necessary Travel” is limited to travel that is required to conduct or participate in Essential Services. The order defines “Essential Services” as: 

  1. Obtaining necessary supplies and services for family or household members, such as food and supplies for household consumption and use, medical supplies or medication, supplies and equipment needed to work from home, and products needed to maintain safety, sanitation, and essential maintenance of the home or residence. 
  2. Engaging in activities essential for the health and safety of family or household members, such as seeking medical, behavioral health, or emergency services. 
  3. Engaging in outdoor exercise activities so long as a minimum of six (6) feet is maintained during such activities between all persons who are not occupants of the same household or residence. 

Furthermore, the order prohibits the reception of visitors, except in the following situations: 

  1. Visitors providing medical, behavioral health, or emergency services or medical supplies or medication, including home hospice;
  2. Visitors providing support for the person to conduct activities of daily living or instrumental activities of daily living;
  3. Visitors providing necessary supplies and services, such as food and supplies for household consumption and use, supplies and equipment needed to work from home, and products needed to maintain safety, sanitation, and essential maintenance of the home or resident; or
  4. Visitors received during end-of-life circumstances. 

Violation of any of the provisions of the order is a misdemeanor, and the order authorizes officials to enforce it by issuing citations and making arrests. 

The Shelter in Place Order Does Not Limit Judicial Orders, Including Custodial Arrangements

Transporting children between homes for visitation purposes — such as that required by many custodial arrangements — is not specifically listed as an Essential Service. Even in the absence of a specific mention, visitation-related travel does not fall under any of the other categories of Essential Services, as it does not involve the obtaining food or household goods, seeking medical help, or exercising. This absence led many parents to wonder whether engaging in such travel would subject them to citation or arrest. In response to these concerns, Executive Order 04.03.20.01 clarifies that the shelter in place order has no effect on any judicial order, including custodial arrangements: 

…no provision of Executive Order 04.02.20.01 shall limit, infringe, suspend, or supplant any judicial order, judgment, or decree, including custodial arrangements, created pursuant to the laws or constitution of this State or the laws or constitution of the United States, nor shall any person use any provision of Executive Order 04.02.20.01 as a defense to an action in violation of a judicial order, judgment, custodial arrangement, or decree by any court created pursuant to the laws or constitution of this State or the laws or constitution of the United States. (emphasis added)

Not only does the shelter in place order not apply to custodial arrangements, but it also prohibits any person from using the shelter in place order as a defense for not complying with a judicial order. For example, a situation could arise in which one parent refuses visitation to the other parent in violation of a custodial order on the grounds that they have been ordered to stay at home. This executive order prevents such behavior. 

The order also clarifies the scope of Essential Services to include the care of children and the elderly: 

…the phrase “[e]ngaging in activities essential for the health and safety of family or household members…” included in the definition of “Essential Services” in Executive Order 04.02.20.01 includes any and all activities that may preserve the health and welfare of persons within this State. In addition to the description of actions included in Executive Order 04.02.20.01, “Essential Services” shall also include the transport, visitation, regular care of family members and persons dependent on the services of others, and similar actions that ensure the welfare and best interests of persons in the State of Georgia, specifically including the elderly, children, and disabled populations. (emphasis added)

It is notable that the order uses the term “best interests,” as the “best interests of the child” standard is what courts apply when determining custodial arrangements, and courts almost always find that the love and affection of both parents is in the best interests of the child.

For More Information About Child Custody and Visitation, Please Contact an Alpharetta Family Lawyer 

For more information about child custody and visitation issues, including custodial orders, please contact an Alpharetta family lawyer at Hait & Kuhn by using our online form or calling us at either of our metro Atlanta locations: Alpharetta (770-517-0045) or Woodstock (678-888-0198).