Will Visitation Rights Be Affected by the “Shelter in Place” Order in Georgia?

Apr 4, 2020 | Co-Parenting, Custody, Divorce

Since the issuance of several “Shelter In Place” Orders by various governmental units, there has been a great confusion as to whether non-custodial parents will be able to exercise their parenting time with their child(ren). Some custodial parents have taken the “Shelter In Place” Orders to mean that the non-custodial parents do not get to see the child(ren) until the expiration of the “Shelter In Place” Orders. On April 3, 2020, Governor Kemp issued the attached Executive Order specifically states that custodial arrangements are not limited by any “Shelter In Place” Order, and further sets forth that “’Essential Services’ shall also include the transport, visitation, regular care of family members, … specifically including … children[.]”

If you are having difficulty exercising your visitation during the COVID-19 pandemic and need legal advice or assistance, please do not hesitate to contact us at: www.marplerubin.com or (770) 796-4000.

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THE STATE OF GEORGIA EXECUTIVE ORDER BY THE GOVERNOR:

WHEREAS:
Executive Order 04.02.20.01 requires visitors and residents of the State of Georgia to shelter in place; and

WHEREAS:
Some persons have sought clarifying guidance on the provisions of Executive Order 04.02.20.01; and

WHEREAS:
The Judiciary of the State of Georgia is a separate branch of government and “shall forever remain separate and distinct; and no person discharging the duties of one [branch of government) shall at the same time exercise the functions of either of the others. . .” GA. CONST. art. I, § 2, (III; and The Judiciary of the State of Georgia has independent authority to declare a state of emergency pursuant to Code Section 38-3-60 (see Chief Justice Harold Melton “Order Declaring Statewide Judicial Emergency,” SUPREME COURT OF GEORGIA, Mar. 14, 2020); and Powers not expressly suspended by Executive Order 04.02.20.01 are still in effect, including statutes as well as the orders and decrees of the Judicial Branch of the State of Georgia; and

WHEREASWHEREAS:
Pursuant to Code Section 38-3-51, no statutes carrying a criminal penalty have been waived or enforcement of such laws suspended by executive order.

NOW, THEREFORE, PURSUANT TO CODE SECTION 38-3-51 AND THE AUTHORITY VESTED IN ME AS GOVERNOR OF THE STATE OF GEORGIA, IT IS HEREBY

ORDERED:
That 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. This paragraph does not attempt, nor shall it be construed, to imply that the Governor, in any instance, has the unilateral authority to overturn any judicial order, judgment, or decree.

IT IS FURTHER

ORDERED:
That 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. The term “Essential Services” shall also include children obtaining public internet access to fulfill educational obligations. In engaging in Essential Services, persons should use care to observe social distancing as much as possible when interacting with non-cohabitating persons.

IT IS FURTHER

ORDERED:
That no provision of Executive Order 04.02.20.01 limits the ability of law enforcement officers to enforce the laws of this State. Particularly, the provisions of Code Section 38-3-4 remain in effect and all law enforcement is authorized to enforce the Orders issued pursuant to Title 38, Chapter 3. However, in Executive Order 04.02.20.01, only those officials deputized by the Governor or the Georgia Emergency Management and Homeland Security Agency are “authorized to mandate the closure of any business, establishment, corporation, non-profit corporation, or organization…” found not to be in compliance with Executive Order 04.02.20.01.

IT IS FURTHER

ORDERED:
The Office of the Governor may continue to issue guidance on the scope of “Essential Services” as needed through communication media, including social media, without need for further Executive Orders.

IT IS FURTHER

ORDERED:
That if one or more of the provisions contained in this Order shall be held to be invalid, in violation of the Georgia Constitution, in violation of Georgia law, or unenforceable in any respect, such invalidity, violation, or unenforceability shall not affect any other provisions of this Order, but, in such case, this Order shall be construed as if such invalid, illegal, or unenforceable provision had never been contained within the Order.

IT IS FURTHER

ORDERED;
All provisions of the Order shall be effective for a period beginning at 6:00 P.M. on Friday, April 3, 2020, and expiring at 11:59 P.M. on Monday, April 13, 2020.

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