Of Custody, Quarantines, and Courts

If your home is locked down because of potential exposure to the coronavirus, where should the kids be?

Nearly four weeks into the national response to the COVID-19 pandemic, that question is being raised more and more often, as families struggle with how to maintain parenting or custody arrangements while also minimizing the risk that their children might come into contact with or contract the coronavirus.  We’ve written here about the guidance that Ohio courts have offered, and provided suggestions on how parents should approach those orders with common sense.

The problem is that many of those suggestions require a level of trust and cooperation between separated or divorced parents that everyone is acting safely and appropriately — and even under the best of circumstances, that’s not always a realistic expectation. Some parents, shaken by the prospect that their children might potentially be exposed to the virus, are going to court to fight for custody during the pandemic:

That question is arising across the country as a growing number of parents have begun to withhold access to their children from former spouses or partners over fears of infection, according to families, lawyers and judges. For health care or other essential workers, the battles are infused with heightened controversy. Some say they shouldn’t be punished for doing crucial services; their counterparts argue that the jobs pose too great a risk to other family members.

…Amid the pandemic, the landscape of family law, which varies across the country, has become more uneven, with few guidelines to address the current safety concerns. Families of medical workers aren’t the only affected. Other parents are arguing over who comes and goes from each home, whether children should be on the playground and if travel to more remote areas should be permitted.

More here from the New York Times.  Courts are still sorting through these uncharted waters with no clear answers; most are still focused on keeping the status quo as much as possible, looking to parents to come up with the best practices for keeping their kids and the other parties safe and healthy.  Parents on the front lines of the crisis — doctors, nurses, pharmacists, or even essential service employees — are still parents, and the answers may fall on how they intend to mitigate the risks of their own potential exposure for their families.

In addition to its previous recommendations, the AAML has even more suggestions about how to handle questions about custody during a pandemic, including some more specific and practical tips for parents for the long term:

  1. FOLLOW COURT ORDERS as much as possible.Some court orders provide for reasonable and likely contingencies, but no one could have anticipated this unprecedented situation. Adjustments will inevitably be necessary. But the closer you can adhere to the original court orders, the less the likelihood that you will suffer legal consequences later. Many jurisdictions have mandated that parents follow existing court orders. Judges will not regard favorably parents who use the coronavirus as an excuse to change an agreement unilaterally.

  2. FOLLOW STATE AND LOCAL ORDERS.In addition to your divorce decree, state and local orders, which you are obligated to obey by law, can provide solid, irrefutable guidance for you and your ex. No, your ex cannot take the children to the park and have a picnic with a large group of friends. This is now against the law. Conflict occurs when court orders seem to conflict with COVID-19 restrictions.

  3. BASE YOUR DECISIONS AND CHOICES ON RELIABLE NEWS SOURCES.Do not be swayed by the rumor mill on social media. Depend on major national and local media and government sites like cdc.gov (Centers for Disease Control and Prevention) for your information. If a startling story appears on one site, check to see if it is confirmed by other reliable sources.

  4. USE YOUR HIGHEST LEVEL OF COMMUNICATIONS SKILLS.This is not the time to re-litigate old disagreements with your ex. For the sake of your children during this crisis, make every effort to settle disputes with your co-parent related to exposure to the virus, symptoms, financial and other changes in both your circumstances, with all the civility and reasonableness you can muster. If your best efforts fail, you can consult your pediatrician or therapist as an outside arbiter and, increasingly, you can work virtually with mediators, parenting coordinators and lawyers to resolve issues remotely, thus avoiding a possible enforcement hearing or future modifications.

  5. BE HONEST.Be completely transparent with your ex about any possible exposure of your child or a family member to the virus, and certainly about any symptoms your child may exhibit.

  6. ARRANGE TO MAKE UP FOR LOST TIME.If your ex is not able to see the children as much as is customary, be generous in arranging for the children to have more time with your co-parent later, when the crisis is over. If you put your revised agreements in writing and stick to them, a judge is likely to appreciate accommodations that have been made by both of you when court orders could not be followed.

  7. LEARN HOW TO BE VIRTUAL!This is the time to expand your technical skills. Learn how to use FaceTime, Skype, Zoom, or Go to Meeting. Lots of folks stuck at home are being creative, arranging virtual dinner parties, cocktail parties, play readings, sing-alongs, etc. You can help your children spend time virtually with your ex—and with grandparents who can’t be visited–reading books, playing games, telling stories. The good old telephone is also a useful communication tool.

The Academy’s list also includes ways to discuss the pandemic with children, and some reminders about personal care for parents.

The bottom line is that court orders are still court orders, and while judges and magistrates are mindful of the increased dangers and risks posed by the coronavirus, the actions that parents take during the COVID-19 lockdown might have repercussions on their orders long after the crisis has faded.  If you have questions about how the state’s response to the coronavirus outbreak might affect your Ohio parenting or custody arrangement, give us a call.

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