By Carolyn N. Daly, Esq. of Daly & Associates LLC
Many parents have questions about custody and parenting time during this pandemic. The problem is there is no one answer to any of those questions. The one thing that professionals and judges do seem to agree on is that this is an overwhelming situation for everyone and that during this time, when anxiety levels are high, it is important that children are reassured by their parents and caretakers that “everything will be ok.” Most of them also agree that children need to see their parents in order for this to happen and children need to see their parents working cooperatively and responsibly during this time. Our children are understandably watching all of us for how to react.
That having been said, COVID-19 is unprecedented and many are working quickly to respond to concerns with as much information they have and with thoughtfulness. It would appear that a consensus is emerging in cases where there is an existing custody and parenting time order. In those cases, unless and until there is an order or agreement altering the current parenting schedule, then the existing order or agreement, including holiday time, is to be followed during the pandemic.
The Case for Changes in Custody Agreements During COVID-19
When faced with a request to alter custody or parenting time, the courts are looking to see if one parent can show that the other parent has COVID-19, the child has COVID-19, the other parent or child has been exposed to COVID-19 (or is at a substantial risk of exposure), or the other parent is engaging in behavior which is inconsistent with COVID-19 protocols. A parent seeking to alter the custody or parenting plan for any of these reasons should be prepared with specific evidence, or examples of the other parent’s behavior which support their request to alter or end parenting time or custody. These factors also apply to cases where one parent, a child, or member of a parent’s household has a serious medical issue or pre-existing condition making them more susceptible to the virus. If that parent can demonstrate their medical issue and provide specific examples or evidence of how the other parent is not taking precautions or following COVID-19 protocols, a court may alter the custody or parenting time of the other parent.
There are some important things to consider if there is a change in custody or parenting time by agreement or otherwise. A parent who is not going to have parenting time should absolutely be afforded an opportunity to not only have phone calls, but to video chat by FaceTime, Skype, What’s App, Zoom, Microsoft Teams, etc. This time should be in a room or place where the child is alone with the other parent. The other parent can help with homework, e-learning, watch a movie, play a game, read a book or do hundreds of other things with the child(ren) that I am sure others have already suggested. If there is more than one child, then maybe there should be one video session for each child so that they can have time with the other parent. Additionally, the parties should absolutely agree, or the court should provide, that there will be make-up parenting time as soon as the stay at home mandate has been lifted, provided both parties are prepared to abide by any COVID-19 protocols that exist at the time, or any other protocols that the parties themselves agree are appropriate.
Parents can also consider alterations to their current parenting plans if they are going to continue exchanging the children during this time, such as the location of pick up and drop off. If it was previously in a public place or at school, then you may want to change it to somewhere more private or accessible. If there is restraining order in effect, or other concern, then the parties could alter their location for exchange to curbside at each other’s residence or a police station convenient to both.
If the parties’ parenting time provides for frequent exchanges of the children each week, for example if one parent has one overnight each week and every other weekend from Friday night to Monday morning then maybe the every other weekend should be extended to being from Thursday night until Monday night at 5 pm and the mid-week overnights suspended until the stay at home mandate has been lifted. For parents with 50-50 parenting that isn’t on a week on\week off basis, perhaps they should consider moving to that schedule on an interim basis so that there is an exchange only once per week. The children are all e-learning and have no extra-curricular activities they are attending in person so this might be a perfect opportunity to try other parenting schedules.
Making New Co-Parenting Decisions as a Family
What parents should always remember is that these are your children and your family and a court will never be upset if you reach an agreement on how to handle these issues amongst yourselves. In fact, they welcome it. With that in mind, parents should be aware that the courts have limited resources and these are only a few of many issues being raised to them on an emergent basis. Therefore, it would be wise to reach out to the other parent with concerns and attempt some simple problem-solving before initiating court proceedings. If the parents can’t resolve the issue amongst themselves, there are also a number of mediators, statewide, who are ready to assist them, by phone or video conference, from anywhere, to resolve this issue quickly.
The bottom line is the courts will address these issues on a case-by-case basis and what is needed now for families is more cooperation and less litigation. This situation should not be seen as an opportunity to withhold or terminate parenting time from a parent, absent truly emergent circumstances. The American Academy of Matrimonial Lawyers has put up guidelines for parenting during this time, which can be found here. A very thoughtful judge from Canada gave a well-reasoned decision in an application to alter parenting time during this pandemic, which has been circulated by professionals in this state, and can be found here.
Parenting time when there is domestic abuse could be a whole other discussion. However, what I can tell parents is that the courts are open and hearing emergent matters by phone or video conference. The same factors and considerations set forth above apply. If an abuser refuses to allow a child to return to the ex-spouse and there is no valid reason to do so and you can’t resolve it otherwise, you can file an emergent application for the return of the child. The application can be found here on our website under the button on the first page “Our Response to COVID-19”
This article was originally posted on New Jersey Family
