It doesn’t happen often, but every once in a while there’s a terrible storm – or the threat of a terrible storm. When you have a parenting plan or a custody order in place, you’re supposed to follow it. But does a storm create an exception? Let’s talk about it.
Life is anything but predictable, right? Even though, most of the time, you have minimal issues following your parenting plan, every so often something happens that makes you wonder: is this an exception to the rule? Do I REALLY have to follow this parenting plan when it feels unsafe – or it becomes impossible – to do so?
I’m a ‘safety first,’ kind of person, so my general rule of thumb is that if it is truly unsafe, then you’re okay to do what you feel like you need to do to keep the kids home. That being said, though, you’re going to need to have REALLY good reason to deny parenting time, especially if you aren’t also offering some kind of makeup schedule or alternative.
If you’re claiming emergency, you should be able to document it.
As I write this, schools in my area are closed for inclement weather. Today, it’s the possibility of a tornado – apparently, the conditions are right. Sometimes, though, it’s snow or ice. In my area, where we’re connected to other land masses by a complex system of bridges and tunnels, sometimes even heavy wind can make roadways impassable. It could be a hurricane. Sometimes it’s a storm itself and other times it is the conditions AFTER the storm – power outages, trees down, roads flooded – that make travel difficult, unsafe, or impossible.
If there’s a weather emergency, this should be document-able. You should be able to say, well, the schools were closed on this particular date, this is the information that I had, and this is what, specifically, led to my decision to do what I did. If, for example, a bridge tunnel you’d need to access to transport the kids is closed, document that. If VDOT has issued a travel advisory, closed a road, or indicated unsafe conditions, document this. If a news station showed their traffic camera and it suggests unsafe conditions or shows an accident or backup already existing because of the weather or emergency conditions, document it. Whatever information you have – including the source from which you got it – should be documented.
It better stand up to scrutiny, too. You should be sure that, whatever you do, it’s what a reasonable person would do in these circumstances. You definitely don’t want it to look like you’re making excuses or just trying to be controlling – which is almost certainly the objection your child’s father will raise.
What if my house is just safer than his?
If, for example, the storm is in his area but not yours, that should still be something you can research and document.
If your home is safer – say, in the tornado scenario, yours has a basement and his is a penthouse apartment – that’s something to document and mention, too. If you have a generator and access to medical equipment or the ability to meet specific needs that he wouldn’t have, that’s also relevant.
It’s definitely going to be highly dependent on the specifics – what you can offer, what he can’t, and what the specific needs of your child(ren) and the storm or emergency situation require.
Obviously, in the wake of a mega hurricane with massive floodings and extended power outages, you might need to make specific safety choices that you wouldn’t need to make in other situations. It’s so hard to say because, ultimately, like anything else, it’s a judgment call.
Do I have to offer him make up time?
You don’t have to do anything. Technically, you have to follow the agreement or court order, and we’re already talking about specific situations where you might deviate.
I think it would be a good idea, especially if you’re worried that your child’s father will make a huge stink about it in court, to offer something else. You definitely don’t have to, but it might look good. Of course, it also depends on what, exactly, needs to happen to keep the kids safe. If it’s just one day, it might not make sense to offer a make up. If it goes on for longer than that, maybe a make up is enough to keep the court from feeling like your choices are suspect.
Will the court care that I kept the kids? It didn’t feel safe to send them!
If it happens all the time, I think you’re likely to attract attention and suspicion. If it happens once or twice, especially in extremely extenuating circumstances, I think the court is unlikely to do much. Chances are, if it’s only once or twice, your child’s father wouldn’t even file petitions. It’s just too expensive to file petitions left and right – and, in many cases, the court is reluctant to come down too hard on one parent. This, though, is why documentation is so important. You need to be able to point to what, exactly, led you to make the choices you made. It needs to feel like
It’s all case specific and will depend a lot on the facts involved. It’s definitely not something that should be happening all the time, but – if the circumstances are truly unsafe – safety has to come first.
For more information, to schedule a consultation, or to request a copy of our free custody book for Virginia moms, visit our website at hoflaw.com or give us a call at 757-425-5200.