By Aura Engel, Esq.
Because of the coronavirus, many divorced couples are confronted with a new hurdle in family dynamics: how to maintain and support parenting schedules while following health and safety directives. Co-parenting presents challenges on a normal day, but this “new normal” needs a new script.
One of the issues divorced parents face is reaching an appropriate custody or parenting plan for children. A temporary or permanent parenting time schedule is memorialized into a written agreement/contract, or order. Sometimes, the parties may have an informal agreement. Children, especially when they are young, are not involved in managing or modifying the schedule.
What then happens to the parenting plan with the added requirements of social distancing? Ideally, as long as both parents are healthy and taking necessary precautions, the parties should continue to follow their parenting agreement and court orders. However, depending on the parents’ work schedules and others in the household things may not be so simple.
In order to modify a parenting schedule, one would need a compelling reason which is in the best interests of the child(ren). An example of this could be if one parent has confirmed exposure to the virus or is in a profession that will increase their risk of exposure. A doctor should be consulted to discuss the actual health risk posed to the child before any decisions are made.
The health risks don’t only include the risks to the child but also include the risks of exposure to other members of the household. In one case, the mother works at a hospital and the father lives with his elderly parents. If the father chooses to exercise parenting time on his weekend, and is not concerned about the potential exposure of his parents to the virus based on the child’s presence in the home, can the mother asses the risk and withhold parenting time? In another case, the father is a police officer and the mother has a newborn baby (from a subsequent relationship) in her home. There are no easy answers here and we don’t have specific guidance in the law.
While some of these scenarios might seem to have common sense solutions, the law does not necessarily follow. It is important to consider whether there may be adverse effects to a custodial parent if one unilaterally changes the parenting plan. It could be harmful for either the parent or child not to see each other for an extended period of time. Importantly, the parent who refuses to allow a child to spend time with the other parent risks court action for violating a court order or parenting agreement, which could result in fines and contempt of court.
The parties need to use sincere efforts to reach a joint decision together, making sure that the best interests of their children are held paramount. To help reach a decision, besides consulting with a doctor, the parties may choose to engage a mediator, therapist or friends and family to help with a resolution. Fortunately we have access to Facetime, Skype, Zoom, WhatsApp video, etc., to facilitate such meetings. These media can also be used to enable contact when a parent cannot physically be with a child.
As members of the Jewish community, we are confronted with the additional question of parenting time during Passover. Several local Rabbis recommended that the holiday should be spent with your immediate family in your own home. Only in limited circumstances should an outside family member be invited in for the seders, and only if they plan to spend the entire week visiting. As such, it would seem that this year it is best not to split the Passover holiday if that is normally done in a family’s holiday parenting time schedule. Difficult as this may seem, that is probably the best option in light of the difficult challenges we are faced with right now.
In the event that the parties agree the Covid-19 pandemic necessitates a temporary change to the visitation schedule, it is up to the parties to work together. If the matter does end up before a judge, or if a case is pending before the court, the judge will receive updates on how the parties dealt with this rare situation, the way the parties acted during this time, their cooperation, empathy, and understanding of the importance of the child’s relationship with the other parent. These factors will all have a bearing on a court’s ultimate decisions relating to custody and parenting time. As such, there must be open communication and a consideration for making up missed time, whether it is switching future holidays or adding in extra weekends with the children. Additionally, it is time for creative solutions, such as video conferencing parenting time visits where parents and children can still see each other, speak, do homework and play games through the use of technology. Parents can also consider other ways such as outdoor visits where families keep a safe distance of six feet apart to see each other in person.
Parenting has its daily struggles. Now, more than ever, it is our responsibility to ensure that our children are given security and love so that we get through these unusual times.
Aura Engel, Esq, is an attorney and certified divorce mediator in the law firm of Schonfeld & Goldring, LLP., with offices located at 112 Spruce Street, Suite A, Cedarhurst, New York. The law firm represents clients located in all five boroughs, Nassau, Suffolk, Westchester and Rockland County in all aspects of family and matrimonial law with resolution through litigation, mediation and collaborative law. Engel can be reached at firstname.lastname@example.org.