We have all heard the phrase that these are “unprecedented times” way too many times to count in the last month. But if this truly is a one of kind event causing social distancing, business shutdowns and the break-up of family dynamics, schooling and schedules, what are divorced co-parents to do? What if one parent lives in State A and refused to let the parties’ child visit the other parent in State B where the COVID-19 outbreak is showing higher exposure?
The reality is that no one knows precisely how courts will handle it if a parent engages in “self-help,” ostensibly to prevent the risk of transmission. The event is all too new at this point. Still, there may be some common sense guidelines to think about how to co-parent and deal with an inflexible custody arrangement during these volatile circumstances until the outbreak subsides.
Certainly, were a party to file a post judgment motion for contempt of a parenting plan and custody agreement, a court would look at whether the parties live in communities with outbreak (not that this alone is dispositive, since there are precautions that can be taken), to what degree transmission is widespread at the time of a party’s decision to defy a court order, and – perhaps most of all – how a parent’s actions may negatively impact the child’s best interests by reducing parenting time or essentially keeping the child locked up at one location or the other.
With all the conflicting information on what motions and status hearings (if any) the courts are willing to entertain and handling right now, parties may have to operate on the assumption that even if a motion were filed on the subject, it would not be heard for months. That means that this would be up to the parties and any parenting coordinator or therapist they might have designated to assist. Attorneys could get involved as well and contact parties directly if a party is unrepresented on the other side. Assurances have to be made and precautions taken, but there is a way to do this safely and have a sense of continuity for the child caught in between in an otherwise tumultuous and disruptive time. How do we do that safely? Clients need to be advised that the best way to navigate through this is not to pretend that the existing court orders should be followed to the letter – blindly, and without regard to what is happening around us – but rather, to make specific proposals which would be difficult to deny (especially in writing) that would keep the child safe while being sensitive to heightened fears and actual risk.
Not surprisingly then, leaders of the American Academy of Matrimonial Lawyers (AAML) and the Association of Family and Conciliation Courts (AFCC)* have just recently released guidelines on this very topic for coparenting during the COVID-19 pandemic. Those guidelines can be summarized as follows:
Be healthy. Compliance with all CDC and local and state guidelines and modeling good behavior for your children with intensive hand washing, wiping down surfaces and other objects that are frequently touched, and maintaining social distancing are the current state of best practices and should be maintained with vigilance. Stay informed and in touch with reliable media sources and avoid the rumor mills on the internet.
Be mindful. Be honest about how serious the outbreak is, but maintain a calmness to convey to your children your belief that everything will eventually return to normal. Don’t make careless comments in front of the children and expose them to constant news coverage intended for adults. At the same time, children should be encouraged to ask questions and should be answered accurately at a level that is age-appropriate.
Be compliant with court orders. Try to avoid reinventing the wheel despite the unusual circumstances. Custody and parenting agreements or court orders exists to prevent endless haggling over the details of timesharing. In some jurisdictions there are even standing orders mandating that, if schools are closed, custody agreements should remain in force as though school were still in session.
Be creative. Nevertheless, it would be foolish to expect that nothing will change when people are being advised not to fly and vacation attractions such as amusement parks, museums and entertainment venues are closing all over the U.S. and the world. Moreover, some parents will have to work extra hours to help deal with the crisis and other parents may be out of work or working reduced hours for a period of time. Plans will inevitably have to change, even if temporarily. Encourage closeness with the parent who is not going to see the child through shared books, movies, games and FaceTime, Zoom or Skype.
Be transparent. Provide honest information to your co-parent about any suspected or confirmed exposure to the virus, and try to agree on what steps each of you will take to protect the child from exposure. Obviously, both parents should be informed at once if the child is exhibiting any possible symptoms of the virus.
Be generous. Try to provide makeup time to the parent who missed out, if at all possible. Family law judges expect reasonable accommodations when they can be made and will take seriously concerns raised in later filings about parents who acted unreasonably and inflexible in highly unusual circumstances which a global pandemic certainly qualifies as.
Be understanding. There is little doubt that the pandemic will pose an economic hardship and lead to lost earnings for many parents. Both those who are paying child support and those who are receiving child support will be impacted. The parent who is paying should try to provide something, even if it can’t be the full amount. The parent who is receiving payments should try to be accommodating under these challenging and temporary circumstances.
In sum, adversity can become an opportunity for parents to come together and focus on what is best for the child. For many children, the strange days of the pandemic will leave vivid memories. It’s important for every child to know and remember that both parents did everything they could to explain what was happening and to keep their child safe.
If you are having issues with your ex-spouse following a custodial arrangement and parenting plan agreement during the coronavirus pandemic and are not sure what to do about it, contact the family law, custody and matrimonial attorneys at Maya Murphy, P.C. today at (203) 221-3100.
*Susan Myres, President of American Academy of Matrimonial Lawyers (AAML), Dr. Matt Sullivan, President of Association of Family and Conciliation Courts (AFCC). Annette Burns, AAML and Former President of AFCC, Yasmine Mehmet, AAML, Kim Bonuomo, AAML, Nancy Kellman, AAML, Dr. Leslie Drozd, AFCC, Dr. Robin Deutsch, AFCC, Jill Peña, Executive, Director of AAML, Peter Salem, Executive Director of AFCC