With the current California health order to shelter-in-place, we are all trying to keep ourselves and our families safe while traveling down this uncharted path. This unexpected situation is difficult for all of us. We are separated from friends, family, and co-workers. Our everyday lives have been moved into our homes, where we are trying to live, work, and homeschool. In addition to the everyday struggles that we face while sheltering in place, separated parents who share custody of their children are faced with even more unanswered questions and daily dilemmas.
In a perfect situation, parents who are sharing custody and visitationof their children can co-parent, communicate, and make unified decisions that are in the best interest of their children. However, many parents are not in this perfect situation and are forced to request court orders to define their custodial parenting relationship. Regretfully, when the court made orders regarding physical custody and visitation, the judicial officers had no idea we would have to endure a pandemic health crisis that would force us to stay home and physically separate ourselves from one another. Consequently, there are no clear court orders to define the custody and visitation schedules during the pandemic health crisis that has been caused by COVID-19. Nevertheless, and with very minimal court direction (if any), parents have been forced to adopt a new and impromptu “COVID-19 parenting plan.”
Frustratingly, as legal counsel, we have been working with our clients to provide guidance and information during this atypical time, but we have no legal authority upon which to base our guidance. Therefore, we reiterate that our clients must do what is in the best interest of the children. The problem herein, however, is that each party may have a different idea of what is in the children’s best interest. We received so much conflicting information at the onset of this pandemic that it only makes sense that individuals would have different ideas of what was best for their children. It was very common to hear exceptionally contrasting views on the data relating to COVID-19. It only makes sense that individuals would have extremely conflicting opinions on how the virus would affect them and their children, thereby resulting in conflicting views on what is in the best interest of the child.
We have recommended to our clients that they do their best to work together with the other parent to provide a healthy environment for their children as well as exhibiting a sense of unity between parents. We have proposed discussing together who can provide the safest environment and most resources for their children during this time. Suggested ways to evaluate which parent can provide the best atmosphere for the children at this time may be to assess the following:
· Who has the least amount of people living in the home?
· Does either home have individuals who work in the healthcare profession, first responders, grocery employees, etc. ?
· Which home has the least amount of foot traffic, including people living in the house?
· Does either home have higher risk individuals (older age or underlying health issues)?
· Who can stay home all day with the child(ren)?
· Who is best equipped to provide homeschooling?
· Is one parent violating the “shelter in place” orders?
· Does either parent live in an area that has a higher incidence of the virus?
Here are some guidelines that we recommend to our clients currently struggling with custody and visitation issues related to this COVID-19 pandemic. The following are suggested to provide some guidance during the next 30-60 days or until the shelter-in-place is lifted:
1. Follow the court’s orders as closely as possible in your particular situation. Since travel is very limited, but it is in the child’s best interest to continue to have contact with both parents, utilize virtual platforms like Facetime, Skype, and Zoom for digital visitation. At a minimum, if your children usually have regular contact with the other party, then during this shelter-in-place event the children should have regular telephone contact with the other party. It is also beneficial to allow additional time, if possible, to allow for some replacement for the lack of physical contact. It is paramount to normalize the relationship by virtual visitation (video preferred). Treat the time when the other parent is separated from the children as though that parent is on a business trip. The goal is to provide continuity in the parent-child relationship and maintain a sense of normalcy wherever possible.
2. The evidence has been clear that social distancing and self-quarantining reduces the risk of exposure to COVID-19; therefore, keeping children isolated in one house also reduces the risk of the children being exposed to the virus. This evidence adds an unwarranted stressor on the parent-child dynamic because both parents want to continue to spend time with their children. However, it is not reasonable or safe for children to go between two households unless both homes are practicing the same social distancing procedures. There is a myriad of possible solutions that parents can establish in response to this issue; however, they will have to work together to reach those solutions. Ultimately, if one parent does not believe his or her children are safe, they will have to make the decision that is best for the children, which could include withholding the child from the other parent. It is unlikely any police departments will use their limited resources to enforce visitation orders during lockdowns by counties or States. Nevertheless, if the withholding of the children is unreasonable, the parent who is withholding may suffer repercussions to his or her custody/visitation schedule when the parties return to court after this pandemic has passed.
Again, our recommendation is to work with the other party to the greatest extent possible to determine together what is in the best interest of the child. As a parent, missing your child for a couple of weeks may feel devastating. Still, once this pandemic passes, the parent who sacrificed visitation will have the pride of knowing that he or she did what was in the best interest of the children and put the children’s needs first. Further, it will be very reasonable to request that the surrendering parent recover any sacrificed time after this global pandemic has passed. Overall, this is not an easy time, so try to exercise kindness, work together, and remember that the children’s safety and health is the main priority.