How Does the Coronavirus Impact Your Custody Orders?

During Hurricane Sandy, many of us lost our electricity and running water for more than two weeks.  I had a client who unfortunately was in that situation.  She was the custodial parent of a 10-year-old girl.  Her ex-husband had since remarried, and he and his wife had a home in the Cape which had not lost its utilities.  The ex-husband asked my client if he could take their daughter to Cape Cod until the lights were turned on and the water was running.  She refused and their daughter stayed with her for the duration of her parenting time.  That was a very difficult situation for all involved, including the attorneys who were trying to manage a parent’s rights to make decisions but at the same time give counsel as to what’s best for children.

The coronavirus virus outbreak has brought on a whole new set of health and safety issues that are impacting the way divorced parents are interacting with each other and making decisions about custodial time.  What is making this more of a “Wild West” mentality is that the Family Courts are effectively closed, but for emergency applications, and therefore there is much less oversight and immediate consequences to conduct that may unjustly interfere with the other parent’s custodial time.

• Is it OK to modify the parenting schedule, unilaterally, to protect one’s children?
• What is a parent’s duty to the other parent to provide relevant information which may impact their children’s health and safety?
• Do the Governor’s orders impact custodial agreements which are court ordered?

Example 1:  Parent A and B share 50/50 physical custody of their two minor children.  Parent B is a medical doctor working in the ER of a regional hospital and is admittedly exposed to patients who have tested positive for the virus.  Parent A wants to keep the children with him until such time that Parent B is not at risk of spreading the virus to the children, who can then spread the virus to others.

My thoughts:  Parent B has a duty to give parent A full information regarding her risk factors as a physician having regular contact with patients who have tested positive for the virus.    The parties should contact the children’s pediatrician and follow the medical professional’s guidance, even if that recommendation is contrary to the normal custodial arrangement.

Example 2:  Parent A lives in Connecticut and is the custodial parent of the minor child.  Parent B lives in Massachusetts and has every other weekend parenting time with their minor child.  Parent A believes that the Governor’s orders mean that the child is not permitted to leave her residence or cross state lines for Parent B’s parenting time.

My thoughts:  Parent A is wrong.  The Governor’s orders do not in any way modify the custodial orders.  Parent B should be permitted to have parenting time every other weekend in Massachusetts.  The parents should still communicate with each other about risk facts that might be present, such as one of the parents having been exposed to someone who has tested positive for the virus.  Ultimately, however, the parents need to trust each other and follow the parenting plan unless there is a clear risk factor as articulated by the child’s health professional.

Example 3:  Parent A and Parent B live in nearby towns.  Parent A is the custodial parent.  Their three children are not in school because of the virus.  Both parents are working from home.  Parent B wants to switch to a 50/50 schedule since the children are not in school.

My thoughts:  While I understand why Parent B wants more equal time with the children while they are home from school, I think that we need to look at how Parent A and Parent B interacted with each before the crisis.  For instance, are they constantly engaged in post-judgment litigation regarding parenting time and money?  Are they friends or foes?  If Parent A and Parent B have the type of historical relationship where disputes are resolved out of court and they are very flexible in changing the parenting schedule based upon work or the children’s needs, then it is fine to have an informal arrangement more equally sharing the parenting duties during this crisis.  However, if these parents don’t get along, use lawyers to communicate with each other and have been engaged in litigation since the divorce, my strong suggestion is to keep the parenting schedule as is.  Committing to the court-ordered schedule will keep the peace between the parents, which ultimately is what’s best for children.

What happens if Parent A refuses to give back the children to Parent B because of unjustified coronavirus concerns?  What is Parent B’s recourse?  It is possible that the Court, upon Parent B filing an emergency custody motion, will order Parent A to comply with the court orders.  I strongly caution parents not to unilaterally disregard a court-ordered custody plan except where there truly is a health and safety risk that rises to the type of emergency action that a parent must take to protect his or her child.  In order to take such unilateral action, a parent should first consult with the child’s medical health professional and be guided by recommendations made by that professional.

I hope everyone stays safe and healthy.  Enjoy your children. Take care of yourselves.   Please share with me your stories of parents who are facing these types of difficult decisions and how they are resolving their custodial conflicts.

Dori-Ellen S. Feltman
Law Offices of Dori-Ellen S. Feltman, LLC
246 Post Road East
Westport, CT  06880
(203) 557-0557
Fax: (203) 632-2400
Email: [email protected]