As we all experience a “new normal,” at least for the next several weeks, if not longer, parents who are divorced or separated and are sharing custody and parenting time of their children during the coronavirus pandemic must consider the implications affecting custody schedules.
Parents may have different perspectives on how to address the outbreak relative to their children’s day-to-day lives. For example, prior to stay-at-home orders some may have been conservative in holding children out of school, avoiding extracurricular activities and practicing “social distancing,” while other parents might feel that these preparations were an overreaction and the circumstances did not dictate – then – such measures. We have moved into new territory where state and federal authorities have closed schools, public places, restaurants and other non-essential places for the foreseeable future. In coordination with these orders, courts closed to normal business and only open for limited hearings. As of March 31, Pennsylvania courts will be available in this limited capacity at least until April 30. Upon the entry of these orders, confusion arose over how parents would fulfill their custody orders or if they should follow their custody orders. Restrictions on non-essential travel raised the question as to whether parents could travel for the purposes of fulfilling custody orders.
From a threshold perspective, no one should willfully violate a court order. “Willful disobedience” can expose a party to contempt and sanctions. Questions will arise, however, as to whether risking contempt is preferable to exposing the parties and/or their children to the coronavirus. Some clarity was brought in many jurisdictions where clarifying orders were issued stating that custody orders remain in effect, should be followed, and that travel for the purposes of custody exchanges was permitted. Though these orders may not have resolved in some peoples’ minds as to whether that travel was advisable; driving locally carries different exposure risks relative to plane travel.
Legal custody issues will undoubtedly arise as parents debate how to manage their children's care, while an ill child also creates a physical custody problem by potentially exposing the child to more people. Though children seem to be affected to a lesser degree by the virus, they may also be a conduit to spreading the virus due to the mild presentation, or parents confusing it with the flu or a cold. Other legal custody issues dealing with education may arise as schools have shifted to online teaching (if they are able to do so) and parents look for alternatives to educate their children while they are out of school or while the parent(s) continue to work.
No custody case is the same and there are some situations that can and should operate normally because the risks of exposure to the virus remain low for that family. These situations would be where the parties are both exercising all of the recommended precautions during their non-custodial time: practicing social distancing, limiting their exposure to other groups of people, practicing good personal hygiene and sterilizing packaging and carry-out containers. In other words, practicing the same precautions they would apply when their children are in their care.
More complicated are cases involving significant travel, exposure to third-party caregivers, interaction with older family members or friends, employment that raises the risk of exposure, or mixed families where, for example, stepchildren are passing between households. Ideally, parents would agree upon an appropriate alternative to their normal custody schedule until the virus subsides sufficiently to allow for more routine activity. This may not occur very soon and routines as we knew them may not return for some time. It is uncertain as to when businesses will reopen in whole or in part or when we can expect this acute, infectious phase to subside sufficiently enough that the healthcare experts feel we have sufficiently “flattened the curve” of the outbreak to ensure our medical systems are not overwhelmed.
In the interim, parties need to do the best they can to communicate so that neither side is unclear as to what their concerns or expectations are during this time. If a parent cannot (or will not) exercise their custodial time, then collaboration for additional FaceTime/Skype calls, online games, or other methods for maintaining their connection to their children should be explored and considered. Both parties should exercise common sense and be reasonable in their demands on each other and the children. If someone suspects they are beginning to show symptoms, an honest discussion with the other parent must happen and appropriate decisions made to ensure any infection does not spread. If someone is ill and is tested for COVID-19, custody should not resume until they are medically cleared and have taken appropriate steps subsequent to their infection to quarantine and ensure they have not infected anyone else who may have contact with the child during their custodial time.
Where legitimate disputes and violations of the custody order arise, it will be difficult at best to address those issues in court on an expedited basis. Family court emergency hearings are still being heard in Pennsylvania’s and other states’ trial courts. Most family law attorneys know that the threshold for what is an emergency to the court may not be the same as the party experiencing it, though under the present circumstances, the bar may be in flux as issues that would never rise to an emergency, such as transportation, may carry greater weight. Those with parent coordinators may have an advantage of having these issues addressed remotely, but for most cases, “normal” breaches of the custody order will be addressed in conformity with the current procedure for that jurisdiction and may not be heard until the courts reopen for normal business, though it should be noted the court system may open up at a slightly faster pace than other sectors of society. Though the courts may be limited at the moment, it does not mean that parties will not be held accountable for their actions and decisions pertaining to custody in the near future.
Adversity created by the coronavirus, child care, home educating and illness 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 and mixed emotions. It is 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.
AAML & AFCC Guidelines
To provide additional guidance to parents in this situation, the American Academy of Matrimonial Lawyers (AAML) and the Association of Family and Conciliation Courts (AFCC) have provided the following guidelines. These guidelines certainly provide food for thought on how to minimize, to the extent possible, added stress on children of divorce.
1. BE HEALTHY
Comply with all CDC and local and state guidelines and model good behavior for your children with intensive hand washing, wiping down surfaces and other objects that are frequently touched, and maintaining social distancing. This also means BE INFORMED. Stay in touch with the most reliable media sources and avoid the rumor mill on social media.
2. BE MINDFUL
Be honest about the seriousness of the pandemic but maintain a calm attitude and convey to your children your belief that everything will return to normal in time. Avoid making careless comments in front of the children and exposing them to endless media coverage intended for adults. Do not leave the news on 24/7, for instance. But, at the same time, encourage your children to ask questions and express their concerns and answer them truthfully at a level that is age-appropriate.
3. BE COMPLIANT with court orders and custody agreements.
As much as possible, try to avoid reinventing the wheel despite the unusual circumstances. The custody agreement or court order 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.
4. BE CREATIVE
At the same time, 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 US and the world. In addition, 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 time. Plans will inevitably have to change. Encourage closeness with the parent who is not going to see the child through shared books, movies, games and FaceTime or Skype.
5. 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. Certainly, both parents should be informed at once if the child is exhibiting any possible symptoms of the virus.
6. 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 are inflexible in highly unusual circumstances.
7. BE UNDERSTANDING
There is no doubt that the pandemic will pose an economic hardship and lead to lost earnings for many, many parents, both those who are paying child support and those who are receiving child support. 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.
Other states and judges have chimed in as well, with either specific orders or useful advice. For instance, the Texas Supreme Court issued the Second Emergency Order Regarding the Covid-19 State of Disaster on March 17, 2020, which applied to all 254 counties in Texas and stated in pertinent part that “[for] purposes of determining a person’s right to possession of and access to a child under a court-ordered possession schedule, the original published school schedule shall control in all instances” and that custody shall not be affected by school closures due to the COVID-19 pandemic. It also specifically stated that “[n]othing herein prevents parties from altering a possession schedule by agreement if allowed by their court order(s), or courts from modifying their orders.” This is an important element for the court to articulate since it gives permission to parties to modify their schedule is they are able to do so. Rigid application of a schedule that does not apply under the circumstances may not be appropriate if the parties both agree to modifications, even if just on a temporary basis.
Justice Jeffrey Sunshine, a family court judge in New York and the Statewide Coordinating Judge for Matrimonial Cases, offered his perspective as a jurist whose advice should be considered by all parents, no matter what state that they reside in. Justice Sunshine offers that parties should consider how their behavior will be viewed once this crisis is over? “Simply put, when you behave a certain way and there is a judge in the equation, how will a parent behave when I am no longer involved in their lives? With parents who are not obeying court orders, or where no orders exist are engaging in “self-help”, attorneys may and should remind them that the actions they take today and during this crisis could well be determinative or dipositive at the time of final decision by a judge.” The justice highlights the important factor under New York law of providing access to the other parent and it is a common element in most jurisdictions.
Justice Sunshine goes on to write that, “[h]ow they conduct themselves at parenting during a time of a pandemic crisis, one of which we have never before seen, will shape their relationship with each other as divorced parents in the future, the relationship they have with their children and most importantly the relationship that their children have with them….[if] parents do not conduct themselves appropriately and sensibly, their children will remember throughout their lives how they acted and so will the judge deciding the case. I listen carefully and remember the children who have spoken to me during the hundreds of in-camera interviews I have done in the past 21 years. I hope over the next few years children will be telling me how positively their parents behaved to make sure they were safe, allowed access by technology if illness or the risks of travel prevented access, and that both of their parents put their differences aside and they did it for me."