No Easy Answers: Co-Parenting In a Pandemic
No matter what we talk about – the weather, current events, family, etc – all of it seems to center around COVID-19. We cannot go outside, so who can enjoy the weather? Every current event is tied inexorably to COVID-19, so why bother reading the news? And our families are pressed together in the same space for hours and days on end, so who wants to talk about it?
However, not all families are together during this time. Couples that are either already beginning the divorce process or who have been divorced are struggling to navigate through each parties’ parenting time in this COIVD-19 period. What if my ex-spouse travels for work; should s/he still have parenting time? What if my ex-spouse tells me s/he has come down with COVID1-9 symptoms? What if a parent wants more parenting time or less? In other words, how do you co-parent if the Pandemic will not cooperate?
To start lets identify the class of people subject to this discussion; people with children who are either a) divorced and operating under a court order for parenting time (usually a separation agreement) or b) people who have started the divorce process and the court has already issued a Temporary order that details parenting time. Also included are people who were never married but have children and the court has issued an order for parenting time. For all these situations, let’s assume that the parties retain joint legal custody of the children regardless of the physical custody arrangements.
The main connection in all these cases is that the court has already issued orders that tells parties when they will have parenting time and in every case there are clear lines of delineation as to when one parties time starts and when it ends.
So, what happens when COVID-19 interferes? Especially now when courts are only hearing matters deemed as an “emergency?” Here are examples of some cases that have come up or that could come up:
-Mother has primary custody of the child and father has parenting time on alternating weekends. Mother is concerned that Father will not take proper social-distancing precautions when with the child. She is considering terminating Father’s parenting time.
-Father travels for work and is continuing to do so because his business is still deemed “essential.” Mother is concerned that with so much travel Father is at a higher risk to become infected with COVID-19. Can she terminate his parenting time to protect the child?
-The parties have joint physical custody of the children. Father, for social reasons, travels outside the Commonwealth to New York. However, while he is there, New York issues a No Travel and Quarantine Order demanding all people remain in place for the next 14 days. What happens to his parenting time?
-One parent is self-quarantining or has been diagnosed with COVID-19. What happens to parenting time?
-The non-custodial parents’ work is not deemed “essential” and s/he they are available for more parenting time and demands same from the custodial parent. Must the custodial parent acquiesce?
In each of these examples, it is extremely important to remember that court orders that address parenting arrangements are not stayed during this time. All orders that have addressed parenting time remain in full force and effect. Recently, the Chief of the Massachusetts Probate and Family Courts, Justice Paul Casey, issued a letter regarding co-parenting during this time. In that letter, Justice Casey stated that “it is important that children spend time with both of their parents and that each parent have the opportunity to engage in family activities, where provided for by court order.”
This cannot be stressed enough – the court orders you have been living under remain; you cannot simply ignore them because it is more convenient, even if there is an issue with COVID-19; even if the courts are closed. Merely because you have concerns about your children does not give you the authority to ignore (or change) court orders.
What is interesting is that many practitioners in Massachusetts have looked not just outside the Commonwealth but outside the country for direction. Very recently, a Canadian court issued orders in a simple modification case. In the case (and I used this case as the first example above), Mother was concerned that Father would not use social distancing when it was his parenting time with the parties’ nine-year-old son and therefore wished to terminate his time on an emergency basis. Her argument was that no action was too strict to protect the child. While it’s important to note that a Canadian Court has no precedential authority in Massachusetts, it is worth looking at the sensible elements of such a ruling.
The court was extremely direct and frank about why it would not entertain her motion. In the order the court stated that “None of us know how long this crisis is going to last. In many respects we are going to have to put our lives “on hold” until COVID-19 is resolved. But children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child.”
The Canadian sounds familiar to what Judge Casey said in his latter- “In most situations there should be a presumption that existing parenting arrangements and schedules should continue...” And that “In some cases, (either) parent may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness)…”
And the Court closed with a chilling yet highly accurate assessment of the environment we are all in. “Each family will have its own unique issues and complications. There will be no easy answers.”
Using this framework, we can deduce better answers for each situation above other than upending the prior court’s orders.
-For the Mother who has primary custody and is concerned that Father is not observing social distancing, Father’s parenting time should not be suspended merely over her concerns. Mother should remind Father of the protocols, trust that as an adult he will follow them, and then let him have his parenting time.
-The same advice applies to the Father who travels for work. Even though Mother’s concerns may be increased, she cannot terminate parenting time even if this situation appears more heightened for COVID-19 exposure.
-Probably the most acute case that I have discussed recently is a party whose parenting time is in jeopardy because they traveled to a state that became quarantined and he or she is now subject to that state’s lock-down order. Here the solution is likely that so long as father is in the other state, if the parties agree, his parenting time should be suspended and then made up after. In this scenario, the parties have 50/50 parenting time and there is a 14-day quarantine in New York. This means Father will miss, at least, his seven days of parenting time. If possible, the parties should just make up those seven days later once the quarantine is over. A possible solution could be to have father do his parenting time by Skype or other video conferencing mechanism. The problem with this situation is that the parenting time of seven days is exponentially reduced to a few minutes of screen time and most parents would not want their time so limited.
-However, what happens in the example where one parent is self-quarantining or has been diagnosed with COVID-19? In that case, the health-compromised parent should have their parenting time through video conferencing or Skype. Parents get sick even when there is no pandemic and general accommodations should be made and accepted. As Judge Casey stated, parties should use this technology whenever possible when is applicable.
-Finally, there is the non-custodial parent whose work is not deemed “essential” and s/he wants more parenting time. In this case the custodial parent is under absolutely no impetus to increase that parent’s parenting time. Yes, they could make the child available for more time, but they are not required to make such accommodations. As with the prior examples, the court orders remain in effect and cannot be set aside to accommodate a parent’s wants or desires.
What if your case represents an “emergency?” Once again, as I have stated in many of the prior blog posts, the Court takes an extremely narrow view of what constitutes an emergency. And its no coincidence that the Canadian court, referenced above, refused to hear the case as an emergency stating that:
“Everyone should be clear about expectations during this crisis. Parents want judges to protect their children. But with limited judicial resources and a rapidly changing landscape, we need parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings. Judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. We know there’s a problem. What we’re looking for is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness. In family court we are used to dealing with parenting disputes. But right now, it’s not “business as usual” for any of us. The court system will always be here to deal with truly urgent matters, especially involving children. But that means there will be little time or tolerance for people who don’t take parenting responsibilities or COVID-19 seriously.”
I urge parents coming to this blog to read that paragraph again. Courts have expectations that before you claim the clarion-call of “emergency” that parties be realistic; that they make good faith efforts to solve their problems; that they communicate with the other side; that the parties show mutual respect for one another; and come up with their own creative and realistic solutions before bringing these issues to an overworked court.
What is most revealing about this time is that the same advice for co-parenting that is applicable during the pandemic is applicable when it is “business as usual.” Parents should be realistic of their resources and their needs, keeping in mind the same for the other parent; they should make a good faith effort to solve the problem with the other parent through thoughtful and well-tailored communication; that there be mutual respect between parents even if they do not like each other or get along; and that before the parties resort to bringing their problems to a stranger in a black robe that they be creative and realistic in their proposed solutions to avoid court and needless litigation.
In other words, while every subject today is clouded by COVID-19, the lessons we learn are valuable and can assist us well into the future.