If you are unsure about whether or not you should share your children in accordance with your custody order during this uncertain and frightening time, you are not alone. Our firm is getting questions from many clients asking whether or not they must send their children with the other parent. My answer to them is always the same. It is, “It depends”. This answer is obviously followed up with a discussion about the client’s concerns and the factual situation surrounding each parent’s employment, living situation, and potential exposure of the children to infected people.
After this discussion with a client, the answer is sometimes easy. If both parents and their significant others or other adults in the home are working from home and have limited exposure to the outside world (they are staying home and only going out when necessary) there is no reason to modify a schedule and a court would most likely not support a modification of the schedule.
On the other end of the spectrum, the answer may also be easy. Where a parent is working in a hospital, emergency room, or in an environment where there is significant contact with those who are infected or are likely to be infected by the COVID-19 virus, that parent should, for their children’s best interest, limit his/her contact. If litigated, a court may limit that parent’s contact to phone or video conferencing until this crisis is over or they are no longer working in that situation. While that seems grossly unfair to the parent working on the “front lines”, parents often must sacrifice for their children; we parents do it all the time, and this time should be no different. This time it just so happens that the sacrifice could save children from being sick or passing the virus on to others who are vulnerable.
So, if everyone in the above scenarios behaves reasonably, those situations are not too difficult to navigate. The harder calls are the ones where the threat of exposure to the virus is less tangible; the father works at a grocery store, the mother is a mail carrier, a step sibling delivers take out, or either parent lives in one of the “hot zones”. All of these situations create the sense that the children may not be safe with the other parent; however, a court may or may not agree with this characterization. So what are parents to do? My advice is always to first look at the facts; what are the actual risks to the children and are your concerns more emotional than factual? If you cannot point to any rational fear, you may not wish to change the schedule unless the other parent agrees. On the other hand, if your fears are founded on fact; i.e., the other parent’s coworker at the grocery store tested positive for the virus yesterday and they were working together the previous days, those facts would seem to support a limitation on that parent’s contact with the children. In that case, you should attempt to work out a reasonable accommodation with the other parent and see if reason can prevail.
In any of the scenarios above, the courts are open to deciding essential matters; custody issues during the COVID-19 pandemic are considered essential if the children are in harm’s way. Know that the attorneys at Lazar & Schwartz are available to discuss these issues with you and assist you in reaching a resolution, whether it be by negotiation or litigation.