Custody and Visitation: Co-Parenting Issues in the Age of Coronavirus
By Christopher Guetti, Esq.
As the fallout from the impacts from coronavirus continues to unfold, the New York State Court System has also had to take drastic measures in an effort to stem the tide of potential infections. In fact, presently, all of the different courts in New York State, such as Supreme, Family, Surrogates etc., are combined into one consolidated court system, and are in one room or building. As a result, Court Administrative Orders have closed the courthouse doors to individuals with family law issues, with the exception of certain "essential" matters. According to the latest guidance from the court system, these include child protective cases where a child is at risk, juvenile delinquency cases, and emergency child support situations. What makes something essential under even this definition is evaluated on a case-by-case basis. Notice I did not mention as "essential" issues surrounding parenting time, i.e. custody and visitation.
To make matters more intriguing, the word “essential” has been defined in executive orders. Although New York State has provided guidance as to what is an essential business, nothing so far is been provided when it comes to essential travel. As a result, some parents who may need such direction are not getting it.
This is not the case in all states. For example, in California, which has a shelter in place order, clearly indicates that it "allows for travel both to care for family members and comply with legal obligations. Accordingly, it allows for joint custody arrangements for the care of children." Similarly, Illinois has a shelter in place order with a definition for "essential travel" that includes custody exchanges between parents: "all travel… except essential travel… is prohibited… Essential travel includes… travel required by law enforcement or a court order, including to transport children pursuant to a custody agreement.".
Even though New York is a major epicenter of the outbreak in the United States, there has not yet been any no such statement.
Although specific direction has not been provided by Administrative (courts) or Executive (governor) order, you should not be presumptuous to think that you could use this as an opportunity to withhold parenting time. The State Wide Coordinating Judge for Matrimonial Cases, Judge Jeffrey Sunshine, published an article in New York Law Journal titled "COVID-19 and Future Custody Determinations". In it, the judge discusses the need for parents to be civil and reasonable during this pandemic, and allow for access to noncustodial parents through appropriate and reasonable accommodations. Not so subtly, he also suggests the courts are watching, and that "parental behavior today can affect judicial decisions in the future" (partial subtitle of the article). Judge Sunshine intimates that when a judge makes a custody determination, he/she thinks about how an individual was behaving when the court was not in the picture, and actions they take today during the crisis could well be determinative or dispositive at the time of the final decision by a judge.
This is not to say that there are not shared custody difficulties, where is may be that one parent finds there to be a need to be more cautious and restrictive about social distancing and the threat of this virus, while another takes a more relaxed approach.
Of course, as a parent you want to keep your children safe, but can you deny the other parent access on grounds that you are protecting them? If this is a unilateral decision, have you done so without taking any other steps, such as limiting all access by any other persons, or precluding time with any other children. If not, then why the decision to deny access to the other parent?
If you live in a extended family, you may be concerned about elderly family members, or those that have risk factors for severe illness if they contract a coronavirus infection. You want to see your child, but you also need certain assurances that the other parent is taking stay at home advisories seriously so as prevent a child from bringing coronavirus into the home. Is imposing such conditions on the other parent unreasonable under the circumstances?
There are some guidelines for parents who are divorced or separated and sharing custody of children during this pandemic. The "Association of Family and Conciliation Courts" offers seven guidelines to deal with a crisis. These include: 1) Be Healthy 2) Be Mindful 3) Be Compliant 4) Be Creative 5) Be Transparent 6) Be Generous 7 Be Understanding . Further discussion of these guidelines can be found here.
In a time of crisis, and with job security at risk for some, spending money on litigation may not be the answer, and in any event, the courts are not readily accessible. As an alternative, parents should consider mediation as a way to try to see if there is a way to come to some common ground and in the form of a written agreement parents can live with that addresses specific coronavirus concerns. In the event that there is an ongoing risk that is acknowledged, there may be a real need for reduced or no parenting time. In such times, the answer may be agreeing to "make up time". Making such an arrangement will put the noncustodial parent at ease, and at least will guarantee that that parent has the opportunity to make up for time that was lost dealing with a crisis.
In the meantime, there are any number of virtual tools that can be used to allow the noncustodial parent to continue to connect with their children, including Skype, FaceTime, Zoom, Google Meet or Hangouts, and others. All of these are superior to the simple phone call, but in a pinch, a phone call works great as well.
At least for the moment, it may be true that parenting time has not been specifically provided for in any order, but you also have to realize that COVID-19 is having a major impact on everybody, including the judiciary. Parents are going to have to look out for one another as well as their children, and if you can take away anything from the closest thing that we have to specific direction from the Statewide Coordinating Judge about complying with custody orders and providing access to the other parent, it is that the courts will be watching and will fix the problem if you fail to do so.
At SDG we have a diverse set of skills and experience in both litigation and mediation of matrimonial matters. Let us assist you with your concerns. Please contact us if you are having issues with custody orders or gaining parenting access to your child.