By Carolyn N. Daly, Esq. of Daly & Associates LLC

We are in the midst of a serious crisis. Unfortunately, some parties are taking that only too literally, weaponizing the current pandemic and social distancing guidelines to restrict the other party’s parenting time and ability to see his or her children. This is particularly true among first responders or other “high risk” individuals who are continuing to work and risk exposure to the virus. This crisis should not be seen as an opportunity to withhold or prevent parenting time between a parent and child unless there is a demonstrable risk to a child. 

The American Academy of Matrimonial Lawyers (AAML) and the Association of Family and Conciliation Courts (AFCC) attempted to get ahead of this issue, and issued guidelines on March 17, 2020 regarding parenting time in the midst of our current “social distancing” which can be found here https://aamlnj.org/njresources However, stories continue to arise around the state of individuals who are going to the courts to attempt to suspend parenting time because of this pandemic or to seek the continuation of parenting time when one parent unilaterally stops parenting. 

This is a difficult situation, and every case has its own unique circumstances which must be considered. The consideration changes if, for example, you live with individuals older than 65 or someone who has respiratory issues – in other words, if you risk exposing not only your child to the virus, but an at-risk individual who has a higher mortality rate because of their pre-existing conditions. Generally, however, the first thing all parents must be aware of is that they really have only three options: (1) they can work something out amongst themselves, taking into account the best interests of the child; (2) they can hope that a judge will see things their way and apply to change or limit parenting time when necessary; or (3) they have to follow the Court Order currently in place. What is not an option, however, is to knowingly violate any court order in place and unilaterally change parenting time – courts have never looked kindly on self-help. Parents also risk running afoul of criminal law. N.J.S.A. 2C:13-4 provides that if you withhold a child for more than 24 hours you could be charged with interference with custody, a crime that is a second degree offense and carries with it a presumption of imprisonment. 

Work it Out 

The one way to ensure everyone is safe, healthy and happy is to work things out amongst yourselves, with mediators, parenting coordinators, attorneys, pediatricians or other members of the community, as necessary. In doing so, you can craft a plan that works best for you and your children, as opposed to hoping someone else will make the right decision for you based on what information they have had thrust before them. Parents can always modify parenting plans amongst themselves in order to ensure minimal transfers. If, for example, you have “50/50” custody requiring multiple back-and-forths per week, you could instead switch to a “week on/week off” plan temporarily if that works for you. Such a temporary plan would allow for fewer transfers and, therefore, less risk of exposure. If someone does become positive for COVID-19, you should work to ensure liberal access to the children via all of the video conferencing applications available 

today, as well as provide make-up parenting time once that individual is all clear. It is important to remember that central to any discussion should be what is best for the children – and that may not always be the same in each case. What matters is what works for your children and family. 

When it comes to individuals who are still working and potentially risking exposure, you only need to peruse local Facebook groups to find a myriad of opinions of what should be done, ranging from “keep the kids home” to “follow the court orders.” What’s important to remember is that as recently as March 30th, the government has said that social distancing guidelines will continue to be in place for a month and that the “peak” of cases could be weeks away. Simply cutting off contact with one parent for a month or more is not acceptable if based solely upon a parent’s employment responsibilities. 

Think of it this way: what if you were still living together? Would you think it reasonable to suddenly stop having contact with the children? What about a decision to move out and self isolate? In most cases, the answer is probably no, although there are some families who have done this or sent their children to live with relatives. Parents still living together would work cooperatively and take appropriate steps to minimize the risk of exposure; such steps might include completely disrobing in the garage and bagging clothes to go into the wash and then taking a towel and going right into a hot shower as recommended by some. Just because you’re divorced or living separately,the children should still be able to see both parents as long as there isn’t an emergent and clearly identifiable risk. 

Of course, on the other side of this, it is important that both parents remain as healthy and mindful as possible. Wherever possible, practice social distancing. Children should not be exposed to two sets of rules – one parent allowing friends over, treating this as an extended summer vacation, and the other practicing strict social distancing with no friends and a strict school-like schedule. This will only confuse the children, and the parent not practicing social distancing (in spite of all the guidelines) will not find themselves in front of a very happy judge if it comes to that. 

Parties also should remember that the other parent is not being “irresponsible” if they are continuing to visit with their new romantic partner, or exposing the kids to that partner. In fact, Governor Murphy’s Executive Order specifically allows visitation with “family or other individuals with whom the resident has a close personal relationship, such as those for whom the individual is a caretaker, or romantic partner. This also means that you are allowed to travel for purposes of picking up/dropping off children and would not be violating the Governor’s Order since this is a legitimate purpose. 

Again, the most important consideration is what is in the best interests of the child. How do parents work together to ensure this? The answer will be different for each family, as each family has unique circumstances that require additional consideration. 

The Right Solution for Your Children 

Co-parenting is of the utmost importance to the courts and decisions should be made by both parents to ensure uniformity and access. You should also remember that if you cannot come to a solution on your own, family law attorneys trained to handle these situations are here to help. At Daly & Associates, we have attorneys who are ready to help. Ms. Daly is a trained mediator and has been appointed as a parent coordinator and guardian ad litem by the courts to help in these situations. If you are a first responder in need of assistance, call and ask about our special rates for you to help you while you are putting yourselves on the front lines to help us. We may be working remotely, but we are still here for you during this difficult time.