Governor Mills has issued dozens of Executive Orders since early March, and all of them in some way or another have something to do with the government's response to the COVID-19 pandemic. Most of them won't effect most people but the ones that you have heard about on the news, particularly the statewide stay-at-home order (28 FY 19/20) and the 14-day quarantine order for out-of-state travelers (34 FY 19/20) and now the facemask order (49 FY 19/20) have had widespread effects on the way people live their lives.
One category of persons particularly affected by the first two orders mentioned are parents of children who are separated and do not live together. Our office has been inundated in recent weeks with phone calls from parents who are having their children withheld from them by the child's other parent under the guise of following the Governor's executive orders or fearing infection from coronavirus. I have no reservations in telling you that in all or most of these cases the only reason a child is being withheld is to hurt the other parent.
In this way, some people have weaponized the fear of COVID-19 and have put their children in the middle of the acrimony. Even as Chiefs of Police and Sheriffs across Maine tell the public that they do not intend on enforcing the Governor's executive orders in a manner that is overly strict or oppressive, some parents have suddenly found their inner street-lawyer and are choosing to interpret these orders in the strictest fashion possible so as to deprive their children's other parent of contact.
The following information is intended as a short guide for any of you out there struggling under these circumstances.
The Stay at Home Order (28 FY 19/20)
The simplest issue to address first is the Governor's so-called “stay at home” order, which requires Mainers to remain in their homes unless engaging in “essential” activities. This order remains in full force, despite the loosening of restrictions against non-essential functions put in place by the Governor's economic restarting plan. We have seen multiple instances, and heard of many others, where a parent has retained physical custody of a child and refused to abide by the court-ordered contact schedule out of an abundance of caution in following this order, or otherwise by invoking the very fears and concerns that drives the policy behind this order.
If you are a parent who has been confronted by this situation, I first want to tell you something that you might need to hear: you are not a bad parent for wanting to be with your child. Despite the fear and uncertainty prevalent during this crisis, anyone telling you that your are a bad parent for insisting on having contact with your child is being, at best, well-intentioned and ignorant and, at worst, is being dishonest and manipulative.
If you are worried about your children becoming infected, then be responsible and take precautions. But you are no less their parent during the outbreak than you were before. And that goes double for you parents who are working in an essential function.
Next, you should know that the Governor's stay at home order has explicitly stated that “essential activities” includes “travel required by a law enforcement officer or court order” and that such travel includes travel required to make child exchanges in accordance with a parental rights order. To put it simply, your contact schedule is court-ordered. Follow it.
The 14-day Traveler Quarantine (34 FY 19/20)
The question of travel leads us directly into our next topic: the 14-quarantine required for our-of-state visitors. To first address the simplest issue here, if you and your child's other parent live in separate states, then yes that travel is still allowed. The Quarantine order is not a total prohibition on travel, and both of you may still cross state lines to transport the child back and forth according to your schedule.
Now you may be wondering, “am I required to quarantine my child if he or she returns to Maine from New Hampshire?” I think you will find that this question does not have a concrete answer from either the courts or the Governor's office. The interpretation of this author however, is that a solid argument can be made for saying that your child is a resident of Maine, even if he or she spends half or more of his or her time in New Hampshire and is therefore exempt. And if a Court should disagree with that, the response is that it would be unconstitutional for holding you liable, because the “laws” in place are to vague to give you adequate notice of when you are breaking it. Not to mention I would be shocked in the first place to see a Court apply the requirement to children under the circumstances, but as I said there is no specific guidance as of yet.
Recently, our office encountered a scenario which was clearly not anticipated by the Governor's office and is one which I hope does not affect too many more people for their own sake. A client who lives out of state came to Maine for an extended visit to be closer to her daughter. She wanted her daughter's father to follow the contact provisions and allow her daughter to come see her on Mother's Day. The Father, however, insisted that it would be illegal and unsafe to send the daughter to see her Mother, because Mother's Day fell within the duration of her 14 day quarantine.
Upon examination of the relevant executive order (34 FY 19/20 “An Order Establishing Quarantine Restrictions on Travelers Arriving in Maine”) it appeared that he was right, and that there was no exception that could be applied to the order that would allow her to violate quarantine even if it was necessary to effectuate court-ordered visitation.
At least until we asked the seemingly obvious question, what is a quarantine? Lo and behold, it turns out that Executive Order 34 contains a provision which states “Guidance for self-quarantine may be made available by the Maine Center for Disease Control and Prevention.” A review of Maine's CDC website revealed guidance on what a quarantine is, which can be found here on page 12. According to the Maine CDC, whether you are quarantining or self-isolating, you should:
- Stay home
- Limit the number of visitors in your home
- Avoid contact with others, especially those who are at high rise of severe COVID-19 illness
- Keep a distance of 6 feet from other people
Given the language contained above, particularly the part about limiting rather than eliminating visitors, we determined that the client's daughter could indeed legally come visit her for Mother's Day. Not to mention, when employing proper precautions, it could be done so safely as well.
What About the Other Parent?
Unfortunately, even armed with the knowledge contained above, the other parent may still choose to not cooperate with you. In such a situation, you are completely dependent on the Courts to enforce the law. The problem there, is that the Courts thus far have proven to be completely unwilling to enforce justice for Maine's parents. More on that later.