We all accept the fact that divorce is a life-altering event in the best of times. In the most difficult of times, with the additional stressors experienced by everyone in the face of this pandemic, the issues surrounding divorce, particularly as they involve parenting schedules, are magnified exponentially. We also accept the fact that it is a normal part of the divorce process that parties who are in the midst of this life-changing event experience serious trust issues with their former partners. Additionally, in cases where the parties were never married and have children in common, efforts to negotiate custody and visitation of their children may be severely impacted by the coronavirus situation.

So how do parents navigate this crisis while taking their children’s best interests into consideration?

As parents cope with the distrust and pressures which may exacerbate their responses during this crisis, family lawyers are now their first responders. We are making every reasonable effort to assist our clients, factoring in how the courts would handle their dispute and ensuring that our clients comply, as best they can, with parenting agreements and court orders while looking ahead to the end of this crisis period when everyone will return to the negotiation table or to court. The one imperative that we believe should be followed by parents is that both should make every reasonable effort to comply with or adjust their parental access schedules, to maintain predictability and consistency for their children and, if necessary, to understand at what point they must make difficult decisions impacting their children’s access with the other parent.

We have been encountering these issues, among others, from our clients:

How does one parent ensure that the other parent does not have the virus whether they are showing symptoms or are asymptomatic?

The response is that parents must find a way to trust that each parent will, at every possible turn, protect their children from this virus. Trust can only be built on an honest sharing of information. We recognize that a parent does not want to miss parenting time with a child; however, the parents must, as a matter of course, share his/her health concerns, whether they are both fever testing, whether either has symptoms, whether there has been exposure to the virus or if either has been tested and share the results thereof. The failure of a parent to honestly share this information with the other parent does not merely have a devastating impact on mutual trust between the parents but must, naturally, lead to a concern that a parent would inadvertently expose a child to this disease. It becomes an absolute necessity that parents have an honest conversation about whether a parent should, for example, self-quarantine for two weeks to ensure that he/she is not ill if there has been exposure to the virus. In addition, the parties should discuss whether one test is sufficient to ensure that a party does not have the virus or if circumstances warrant additional testing.

Family lawyers are well-aware that trust is a fundamental concern and that, if trust cannot be established, the likelihood is that parents will ultimately find themselves airing their grievances to the court when the courts are available to entertain such grievances. If the non-visiting parent will not permit a visiting parent to have access to the children because he/she does not trust the other parent’s health status or that party’s portrayal of their health status, it is almost inevitable that we are inviting litigation.

How will the courts deal with non-compliance during this time?

Justice Jeffrey Sunshine, who is the Supervising Matrimonial Judge in New York State, has advised that judges will carefully weigh a parent’s reasons for withholding court-ordered/stipulated to parental access. Where a parent’s reason for withholding in-person access with and to the children by a visiting parent appears to be punitive or without a basis in fact, courts will deal with that parent’s actions and hold that parent accountable for that behavior. We strongly urge our clients to comply with agreements and court orders unless there exists verifiable proof that the visiting parent should not be exercising his/her parental access.

How does a visiting parent exercise his/her parental access if public transportation should be utilized solely for “essential” travel?

Although there is no prohibition in place for use of public transportation, we are also all being advised that socially/physically distancing from everyone is the most effective method for avoiding transmission. Parents must assume that either/both will avoid public transportation with the children during this time. Parents should openly discuss how the visiting parent will be transporting the children and make arrangements for alternative methods of transportation to ensure social distancing if at all feasible.

What if one parent is considered an “essential” worker or first responder and must be available to work during scheduled parenting times?

In this situation, the non-visiting parent should do everything possible to facilitate alternative methods of contact between the children and the visiting parent who is an essential worker. There should be additional video chat time proposed and arranged, telephone calls, texting and/or whatever other methods are available to the parents to enable the children to maintain contact with the other parent as well as makeup visitation when the crisis has passed.

Perhaps a more critical concern is that many essential workers and first responders are being exposed to the virus daily and are testing positive for the disease. Again, parents need to openly and honestly share this information to ensure that, if an essential worker is available to visit with the children, that essential worker is negative for the virus before access to and with the children is permitted.

What happens if a visiting parent begins to develop symptoms during a parental access period? Does a child remain with that parent during that party’s self-quarantine for 14 days?

This can be a complex issue because, with the lack of trust between many parents and/or a history of manipulation or withholding of parental access, a parent can weaponize the virus to refuse to return the child. The only way in which to ensure the non-visiting parent is receiving honest and open information is for the non-visiting parent to receive advice from a physician treating the visiting parent and/or that the visiting parent provide a copy of his/her COVID-19 test results to the other parent. However, although new quicker testing methods are being made available almost daily, test results are often delayed. During that delay, the children should not be returned to the non-visiting parent to ensure that the children are not transmitting the virus to that parent or anyone else with whom they might come into contact.

And if a visiting parent is unwilling to return the children, claiming that he/she has been exposed to the virus and needs to retain the children, this refusal to return the children without medical proof will ultimately be seen by the court as bad faith and bad behavior. The parties should be made aware that there are also emergency measures available within the courts if there is an unjustified refusal to return the children.

Certainly, both parents should openly and honestly share all information about their children including divulging to each other whether children are developing symptoms or are ill.

What if the parents are still in the process of negotiating an access schedule between a visiting parent and the children and no agreement has been reached?

It is clear that children need and desire access to both their parents and that this contact is in their best interests, particularly at this difficult time. Parents must do their best – perhaps even more than their best – to ensure they are flexible, generous and creative, and to the extent possible, to provide reasonable access during the health crisis. Parents should remember too that their children are trying the best they can to deal with the dramatic changes in their lives: distancing from friends, schools, sports, etc. and that they require as much support and understanding from their parents as possible. Parents need to try their best to work together to ensure that their children also come out of this stressful situation in the best possible place.

One option is to create a schedule which minimizes the number of exchanges of the children between parents. This will result in additional consecutive days spent with each parent to limit a child’s (and a parent’s) exposure to the outside world, while maximizing the likelihood that the child is in a safe and virus-free environment. Once this crisis has passed, the parties can return to the schedules in their agreements and/or court orders, or attempting to negotiate their parental access schedules. This flexibility would also likely be perceived in a positive light by the courts should custody ever be litigated.

We believe, and have advised our clients, that in most instances, parents should be willing to offer make up time for missed parental access periods. This is not about placing blame or fault on a visiting parent for not exercising access but, in an exercise of caution, parents should assume that any deviation from a court ordered or agreed upon access schedule is a function of this virus and state mandates regarding essential employees and social distancing. As soon as possible after state directives have been lifted, regular parental access periods should recommence.

During this difficult time, it is necessary for parents to recognize that the courts are on a very restricted schedule and will not be available to deal with non-emergency parenting issues. This necessitates that these issues be resolved by the parents themselves or through their attorneys to the extent possible. The best alternative is to reach a compromise so that the best interests of the children can be served. In this way, the children understand that there is a plan in place and are protected from ongoing tensions between the parents. It also may be helpful for a parent to maintain a log of schedules and discussions with the other parent which may ultimately serve as a foundation for a negotiated resolution of parenting issues once this crisis passes.

Our attorneys are ready and available to discuss any issues a parent is encountering during this crisis.