Parenting in the Era of a Pandemic

Since March 21, 2020, when the COVID-19 stay-at-home directive was implemented, all our lives, have been substantially changed, perhaps permanently. The COVID-19 crisis underscores the lack of preparedness we encounter as parents and in interacting with the government institutions serving us. For parents and family law professionals the pandemic has highlighted the inadequacy and frustration in dealing with the court system on emerging custody and parenting issues including the lack of consistent decisions among courts in New Jersey and other states, even on a similar set of facts, the difficulty in getting a timely hearing and the general inability of the courts to provide a clear road map for both professionals and litigants navigating their disputes during the COVID-19 crisis and beyond.

Although we hope that parents put their children’s best interests ahead of their own (even in intact families and the absence of crises), parents often have legitimate disputes as to what is best for their children. Yet we ask our clients during divorce and family dispute proceedings, to do just that — agree on what is best for the child or children. In a pandemic, where our leaders and medical professionals struggle to agree on what is best and what works, how are our clients and we, as professionals, to agree on the best interests of the children, the standard by which our courts judge all decisions that affect them.

While our New Jersey Courts do not provide a set of specific guidelines or suggestions, we looked to other states for guidance and found “Guidelines promulgated by the Arizona Supreme Court, Administrative Office of the Courts”, which sets forth a suggested list of Guidelines for Parenting Time of Children During the COVID-19 Pandemic. Arizona shares similar public policy views and goals as New Jersey and are aimed at assuring children of frequent and continuing contact with both parents, shared decision-making authority, and decisions that promote the ultimate goal of the insuring the child’s best interests.

The following is a non-exclusive list of those Guidelines, with some of our own added to the mix at the end.1

·   Parents should comply with existing parenting time Orders unless they agree otherwise or until the Orders are modified and not engage in self-help.

·   Third party visitation Orders, including grand parenting visitation, shall likewise continue unless modified or prohibited by some other provision in the Guidelines, or government directive.

·    The COVID-19 pandemic is not generally a reason to deny parenting time. However, parents should use common sense during this health emergency to protect the safety of their children. Unless otherwise ordered by the Court, or exhibiting signs of illness, parents are considered fit to care for their children and make decisions regarding day-to-day aspects of parenting while the children are in their care. This day-to-day care includes following federal, state and local directives, including social distancing and safety-related measures. (We suggest adding to this Arizona guideline as follows: “special case-by-case analysis may be needed with parents who are also first-responders on the front lines of this pandemic. Such cases may require temporary suspension of parenting time (with increased virtual contact and makeup time) and/or implementation of hyper vigilant exchange and contact protocols as well as enhanced sterilization procedures.”)

·    While schools are closed, parenting time should continue as if the children are still attending school under the school calendar of the relevant district. The closure of the school for public health purposes is not to be considered an extension of any break, holiday, vacation period or weekend.

· Parents should consider agreeing to modify orders temporarily, including whether to suspend parenting time for a period of 14 days, for any person who (1) tests positive for COVID-19 or shares a household with someone who tests positive for COVID-19; (2) has been advised by government officials that the parent or someone with whom the parent shares a household, has been exposed to COVID-19 and has been directed by government officials to self-quarantine; or (3) has traveled internationally within the last 14 days consistent with the CDC’s Global COVID-19 Pandemic Notice.

· If parenting time is temporarily suspended, the parent affected should be allowed liberal virtual contact with the child via video conferencing or telephone. The Court may order that suspended parenting time be made up when requested and when appropriate.

· If your parenting plan states that parenting time will occur in a public place, it should continue at locations permitted under the applicable government orders.

· Outings and activities where parents and children can maintain social distancing and avoid common-contact surfaces are encouraged. If that is not possible, parenting time should be conducted virtually, via videoconferencing or telephone.

· If supervised parenting time is ordered and the supervisor is unavailable for any reason, parents should work collaboratively to ensure parenting time continues to occur, such as finding an alternative supervisor. If that is not possible, parenting time should be conducted virtually via videoconferencing or by telephone.

· If a government order restricts travel for parenting time exchanges, parents should work together to encourage children’s contact with both parents and keep the arrangements as normal as possible.

· During the exchange of children, parents should follow the CDC guidelines and the directive of their state for limiting the spread of the virus. Parents may wish to consider the following:

1. An alternative location for the exchange, where fewer people congregate or touch public objects may be necessary.
2. If an exchange location is closed, the parents should choose an alternative location nearby that remains open.
3. For ongoing safety considerations, exchanges should occur in a neutral setting, such as at a fire or police station.
4. If the children’s exchange under the parenting plan includes long distance or air travel, parents should review the CDC travel guidelines and discuss whether ground transportation for the exchange is preferable or possible.
5. If the parenting plan includes long distance parenting time to be exercised at a location that is disproportionately impacted by the COVID-19 virus, the parents are encouraged to confer to determine alternative options. If the parents cannot agree, the parties shall seek direction from the court.
6. Unless restrained from communicating, parents are encouraged to talk honestly and openly about precautions they are taking to slow the spread of COVID-19. Parents should ensure that, unless otherwise ordered, both parents have current contact information for the children’s doctor(s). However, a parent is not permitted to deny parenting time based upon the other parent’s unwillingness to discuss precautionary measures taken, or belief that the other parent’s precautions are insufficient.
7. If parenting time is missed due to COVID-19-related issues or government orders, parents are encouraged to work collaboratively to schedule makeup parenting time that promotes their children’s safety and well being. Makeup parenting time during these extraordinary times may not be logistically possible. A parent may seek, and the Court may order makeup parenting time when appropriate.

Here is our own short list of do’s and don’ts:

• Do not act in haste (the same is true for the attorney, unless safety is at issue);
• When in doubt, and unable to resolve your dispute with the other parent, do talk to your lawyer, therapist, parenting coordinator, or clergy as to how to proceed;
• Don’t exacerbate fear and uncertainty for your children by words or actions. Keep in mind, at a time when everything has been turned upside down, stability for the children is key, along with alleviating their fear or anxiety. Stick to the facts as to what, why and how, and do not unnecessarily exacerbate or exaggerate the danger. This is particularly relevant in cases where parents are first-responders who must make a difficult choice between being parents and being our own first line of defense. The presumption should always be, and as our law provides, that parents will act in their children’s best interest even when you have doubts or distrust of the other parent. Take all the precautions necessary to protect your children. Children should not have to fear for their well-being when going to the other parent’s home.
• When seeking advice don’t look for a lawyer, therapist or a parenting coordinator who always agrees with you. We are all imperfect and rarely objective when it comes to our feelings. Find an adviser who is sympathetic to your needs and wants, but, at the same time, can be honest in order to get you through this crisis without being shortsighted.
• Keep in mind, striking a balance between what you believe is in your children’s best interests while recognizing the opinions and rights of the other parent, is very difficult, but essential if we are to get through this crisis while also preserving our children’s emotional and physical well-being without breaking the bank by engaging a costly and lengthy litigation.

While New Jersey has not yet adopted similar guidelines, the Arizona guidelines are helpful as to how New Jersey and other jurisdictions, may deal with parenting time issues during the pandemic. After the COVID-19 crisis has passed, the decisions and actions you take vis-a-vis your children and the other parent today, may leave a lasting impression on your children’s well-being, the legal consequences as to custody and parenting time and finally, and most importantly, on your relationship with your children.

This piece was authored by Alona Magidova, Esq. with input from myself and Bruce M. Pitman, Esq.