COVID-19 & Co-parenting: When It Hits the Fan
Covid, Co-parenting, visitation & pandemic
COVID-19, virus, parenting, co-parenting, visitation, and more. Chaos hits parenting plans requiring compromise and rational thought from parents.
COVID-19 has changed just about every aspect of our lives. Daily and weekly routines have flown out the window. While family lawyers everywhere are without access to courts, clients are still calling us. They are asking many different types of questions, but we don’t necessarily have the answers. We do know that parents are capable of getting along and working out problems.
Family lawyers in various states are experiencing similar constraints. Parents need to communicate, cooperate, and try to resolve child custody issues caused or exacerbated by the pandemic. Here are some frequently seen problems and some temporary responses to consider.
Parenting Time and Visitation
By necessity, parents are readjusting many aspects of their parenting plans – from exchanges to insurance coverage. What should you do? Comply with custody orders and the parenting plan until it becomes apparent that compliance is impossible due to one or more of the following reasons:
- A parent’s household has the virus and the occupants are or should be quarantined.
- A parent is a first responder so the risk of spread is very high.
- A shelter in place or other order restricts travel.
Almost everyone is focused on health, safety, social distancing, and preventing spread of the virus. Virtual visitation, Zoom calls, FaceTime, or phone contact can still be taking place if someone in the household tested positive. Make visitation happen by following the intent of the custody order.
Spring Break and Vacation Time
Scott Friedman is an Ohio State Bar Association Board Certified Specialist in Family Relations Law.
In Columbus, Ohio, family law attorney Scott N. Friedman began dealing with Spring Break issues in early March. Many parents had booked travel for their children and were unwilling to cancel – this meant planes, cruises, road trips, hotels, dining out, and so on. Because of those dangers, parties were refusing to let their children go.
When parents reside in different states, the non-residential parent often has the child for Spring Break and a large portion of summer vacation time. With remote schooling, the non-residential parent’s Spring Break make up time could begin immediately and transition into summer vacation.
When the Ohio Supreme Court shut down the courts, it made clear that all parenting time schedules should remain in place. The pandemic is not to be used as an excuse to not send the child to the other parent for parenting time. Although parenting issues were a great concern early in the pandemic, people are resolving those problems. Most people worry about health risks, especially if the other parent is a medical provider, first responder, delivery driver, or must interact with a lot of people on a regular basis. “Agreements are possible,” says Friedman, “that’s the smart thing to do.”
Contempt of Court
When health orders conflict with custody orders, parents worry about staying out of trouble with the courts. If withholding access to children over fears of infection is reasonable and agreeable, then this type of informal modification does not pose a problem. Without agreement, however, a contempt action is possible later. Judges have indicated contempt actions will not be heard during the pandemic.
Parenting Disputes
If one parent does not want to adhere to a court-ordered parenting restriction, we cannot go to court to enforce it right now. Make your thoughts known, but do it gently. Call your experienced family law attorney. Get some advice on how to document the problem for possible future legal action.
How will the court view a parent’s violation of parenting time or custody orders? Judges have broad discretion in these matters. A party’s pattern of noncompliance, parental alienation, or past domestic violence are factors. In hindsight, some pandemic reactions may inevitably seem extraordinary, but at the time were reasonable given justice was unavailable with courts closed.
When health orders conflict with custody orders, Los Angeles family lawyer Christopher C. Melcher offers these tips:
- The last health order should take precedence over an earlier custody order. Some stay-at-home orders except ordered exchanges as essential activities.
- A specific order over one person takes precedence over a general order over everyone. The health order specifically requires infected individuals be quarantined. Use common sense. Do not expose the child or others.
“Kids come first, everything else comes second.” Parents can limit exposure by identifying risks. How does your household compare to the other parent’s? What about co-morbidities, travel needs, and first responder issues? Communicate with the other parent. Document everything. Consult an experienced attorney. Then make a decision.
Children Exchanges
Does one parent want to reduce children exchanges? That is fine. Regular exchanges may need to be modified. We recommend requesting “make up” parenting time for time lost. Keep a journal. Ask that lost parenting time be rescheduled for a certain time, better sooner than later. Be specific. Getting court-ordered make up time will be difficult, and judges are unlikely to make it any easier. Try to work this out with the other parent as best you can, as soon as you can.
Richard A. Harris
In Colorado, Denver family law attorney Richard A. Harris says, “in the vast majority of cases, parents should indeed continue to abide by family court orders, including parenting time exchanges and visits. Where, however, there is a direct threat of harm through, for example, a positive Coronavirus diagnosis in the home of the other parent, the concerned parent should seek a modified court order to protect the child.”
Peter M. Walzer
In California, Los Angeles family law attorney Peter M. Walzer says “people are just not turning their kids over because it’s hard to get to court … They’re taking the law into their own hands.” Hopefully, the courts will consider the COVID-19 circumstances in contempt of court actions later.
What about parents with health problems? On Airtalk, Walzer talked to one parent – a senior some 30 years older than his wife – who fears parenting time. The mother thinks he is neglectful, but she is not taking precautions seriously, is not social distancing, and is exposing their 11-year old to other people. The father is concerned for himself and his son, “I’m in a high-risk category and I have to protect myself. I don’t let anybody in the house. And if he comes here, how is he going to feel if, God forbid, something happens to me because of him?” Walzer recommended the father:
- Journal everything and consult with an attorney.
- Offer to participate in mediation (remotely) to resolve the issues. “Get some clear protocols for addressing your safety, the child’s safety and [the mother’s] safety.”
- Proceed in a respectful way. “When things get back to normal, your custody schedule should go back to normal, and you should get make up time.”
Follow court orders as best you can. Utilize virtual visitation. “Agree to make up time when the restrictions relax.” Be civil. Talk to your older children about temporary changes to visitation and explain why they are needed.
Does one parent want to modify custody temporarily because of COVID-19? Getting a motion heard may not be possible. Most courts are hearing essential matters and emergency situations, but little else. (In many states, this means serious domestic violence or sex abuse cases.) Parents can agree to modify their parenting plan to make it work in the interim. In Arizona, court guidelines tell parents to abide by their parenting plan unless both parties agree to make a change or the court modifies their custody orders.
What about first responders? A New Jersey urgent care doctor had been treating by TeleHealth, but was to resume seeing non-coronavirus patients in-person. The father has an underlying medical condition. He obtained a temporary order granting him sole custody of his two daughters on the basis that the mother would expose them to the virus because doctors are at higher risk. Dr. Mayorquin asked, “Are our children going to be taken away from us because we are on the front lines helping people?”
Florida’s Supreme Court suspended in-person visitation requirements in custody orders except “when all parties and the caregiver agree that the visitation can take place in a manner that does not pose as a health threat.” An Orlando mother sought emergency orders to suspend visitation. The father, a firefighter and EMT whose fiancé is an ER nurse, believed all necessary protective measures were being taken to safeguard everyone. Despite the lack of agreement between parties and suspension of in-person visitation requirements, the judge denied the mother’s motion. There was no evidence the father was not taking proper precautions or endangering the child. The parents were ordered into teleconferenced mediation to attempt a temporary parenting plan.
Melissa Avery, Indianapolis family law attorney.
In Indiana, Indianapolis family law attorney Melissa Avery reported on that Supreme Court’s pandemic orders. Like other jurisdictions, court-ordered child exchanges are permitted as essential travel. Parents should follow the regular school calendar for parenting time dates. Ordinarily, only court-approved agreements are enforceable, yet Avery assured parents they can “informally agree in writing to modify their current court orders.” If parents cannot agree, then filing an emergency motion is an option. If and when such motions get heard is another matter.
Interviewed by WTHR-13, Avery warned listeners of the risk of ignoring custody orders during the pandemic. “I’ve heard several judges say they’re going to come down hard on folks who are unfairly using the situation to their benefit when they do get in front of the judge in the future. And that means things like ordering make up time and paying attorney fees.”
Informal Custody Agreements
Some parents were negotiating custody when the first health orders came down. Good faith agreements can work under all circumstances. Make exchanges. Hold to what was agreed with the understanding that alternate arrangements may need to be negotiated. Some parents have agreed to keep the child in one home, refraining from exchanges until the coronavirus threat passes.
Filing for Divorce
Filing for divorce during a pandemic? People are looking for lawyers. In Pennsylvania, Philadelphia family law attorney Jennifer A. Brandt recommends spouses seek legal advice first. Although in-person meetings are unlikely, attorneys are working remotely and conducting initial consultations. Stay calm. Prioritize your children and insulate them from marital conflict.
One divorce issue involves selling real estate, often the marital home, as part of a property settlement. Some buyers are backing out because of changed financial circumstances. Showing the house is another concern when a spouse is still living there with the children and does not want people walking through. Consider showing property by appointment only. Have real estate agents with gloves open doors to show features to potential buyers, then wipe everything down to sanitize surfaces as they exit.
Another divorce situation involves spouses who had an understanding until a third of their net worth vanished in days. Those agreements in principal have to be renegotiated and redone before they are finalized. Before COVID-19, a spouse may have agreed to accept a larger portion of the other spouse’s retirement account in exchange for receiving less alimony. With valuation of the retirement account now substantially less, that arrangement is not viable.
A complication for Ohio litigants is suspended deadlines in all court cases under a “tolling statute,” says Friedman. Tolling applies to discovery, objections, appeals, everything. For example, a party has 30 days to file notice of appeal after a final decision. The 30-days is now tolled until courts reopen and lift the stay. With litigation not getting done, almost everything is by agreement.
Preliminary Injunctions
One provision of the CARES Act is the ability to liquidate retirement funds without early withdrawal penalty. However, the other spouse may object to reducing the asset. The preliminary injunction prohibits financial maneuvers like these in divorce unless parties agree or the court so orders. Again, courts are closed to non-emergency matters.
Medical Issues
Keep your children safe. If the other parent is claiming you are putting your child at risk for illness or otherwise recklessly exposing them to the illness, be conservative. Read the CDC guidelines. Engage in a discussion with the other parent. Document that you have heard the other parent’s concerns and will work with them. Here, it is better to be safe than sorry. If there is a day in court in your future, then your judge will likely be much more understanding if you can prove you listened and did what a reasonable parent would do to protect your child.
Child Support
Child support is a major issue everywhere, affecting all income levels. Many parents have been furloughed, had hours reduced, salaries slashed, or jobs terminated. By contrast, those employed in essential services and first responders are working overtime.
In Indiana, Indianapolis family law attorney Melissa J. Avery confirms child support orders are to be followed with payments made as scheduled. If you cannot make payments, then file an emergency petition right away. Take action. Do what you can to pay what you currently owe to avoid arrearages. Request modified support orders. Income before COVID-19 may have no correlation to income after. (In Tennessee, ongoing child support cannot be modified retroactively.)
Many people have lost benefits and health insurance, too. Don’t allow a lapse in the child’s health insurance coverage. Shift the child to the other parent’s plan if possible. Most insurers allow a parent to add the child as a dependent outside the enrollment period. Most of these cases will shift the child back to the other parent’s plan later, when things get back to normal. Courts are not giving us guidance, so do this by agreement if you can.
Parenting Plans
In California, custody orders are not affected by contrary shelter-in-place orders. The parenting plan may require daycare, but are facilities open? Where still operating, the risk of children contracting and spreading the virus is much increased. Despite what the parenting plan says, bringing a babysitter into the home or taking children to their grandparents for the day may not be an option either.
Extracurricular activities are off. Children cannot play with friends at neighborhood parks or anywhere else. Special needs children do not have services available as usual. Look for alternatives, think outside the box. If age appropriate, children can video-conference with their friends. Keeping your children physically, mentally, and emotionally fit while sheltering in place requires more planning than ever before.
What to expect from the court? Child custody cases do not move swiftly through the courts in the best of times. Do not expect a hearing to modify custody as most parenting disputes take time to resolve and are not serious emergencies. Private mediation is being utilized remotely. Expect a backlog of existing cases and an influx of new ones when courts reopen.
For more discussion, see Some States’ Courts Offer Guidelines for COVID-19 Parenting Time in Family Law.
Child Custody Amid a Pandemic | Marybeth Conley + Mason Interview WREG
Co-parenting and COVID-19: Negotiating Parenting Time with Separated Parents | WREG 3 Memphis
To learn more, see Child Custody Laws in Tennessee.
To learn more, see Modifying Custody & Parenting Plans.
See also Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family featuring examples of parenting plans and child support worksheets from real cases available on Amazon.com.
