For many individuals, directives to “stay home” can be easily understood and followed. However, children of divorced families typically live in two homes. As the pandemic progresses with schools closing and parents working remotely, do children continue to travel between the homes of their parents?
In a custody dispute, resolution (either by trial or settlement) results in a detailed schedule being placed into an agreement or a judgment. These schedules set forth where a child will reside each day. The schedule addresses a “typical” school week, holidays (religious and secular) and long vacation periods. The schedule includes provisions if the child is sick, there is no school due to a holiday, how birthdays will be celebrated, and other life events. In some cases, the schedules are detailed down to minutes; in other families, the schedules are more general.
The professionals who draft such agreements and help parties create such schedules try to (with experience) include provisions which help parents resolve issues that may arise in the future. As detailed as the schedules may be, they cannot provide for every situation.
The current pandemic is one such situation. For instance, one access schedule may provide for the children of divorced parents to reside as follows: every Monday and Tuesday with Mom; every Wednesday and Thursday with Dad; alternate weekends with each parent. This is typically referred to as a 5-2-2-5 schedule during a 14-day rotation. Other couples agree to a week-on, week-off arrangement where the children live with each parent for a week at a time. And, in some jurisdictions, divorced parents engage in “nesting”, where the children reside in one residence and the parents move in and out of the residence according to a schedule.
Whether practicing social distancing or complying with a stay home order, most access schedules will require a child to travel between the homes of parents. Alternatively, nesting schedules alter the children’s environment when the parents come and go from the residence. Such schedules exponentially raise the risk of exposure of both parents and children to the coronavirus. In essence, a direct contradiction evolves between a parent’s right to be with a child pursuant to the agreement or judgment setting forth the schedule and the best interests of a child. Is it possible to reconcile these competing interests? Yes, and no. With equally competing rights, such situations do not result in definitive answers.
This pandemic has resulted in schools being closed and children having to learn virtually. Some parents are facing unemployment while others are working remotely while balancing helping their children participate “in school”. Financial circumstances have changed, resources continue to be challenging and as a consequence, stress levels rise at the same rate that the Dow Jones Industrial Average falls.
Three Guidelines to Follow When it Comes to Custody and COVID-19
Divorced families (because they are still families in their children’s eyes) should practice the following UFO guidelines:
This pandemic will subject families to financial challenges. Payors and recipients of child support will no doubt have to make accommodations to each other. Parents should work together and be transparent with each other regarding expenses; federal, state and third-party institutions will be providing relief which should be maximized to the families’ joint benefit. In addition, parents may need to change the access schedule due to work requirements; parents should be transparent with each other regarding these issues.
Be flexible in following the access schedule. These are new situations. Remote working; remote learning; weekdays have become 7 day weekends with parents and children spending an inordinately greater time together. As the days progress, parents should revisit their schedules and discuss possible changes in the best interests of their children and the realities of their parents’ lives.
Children look to their parents to formulate resolution techniques. This is an opportunity to teach children how to work through adversity, resolve challenges, and demonstrate to their children that they can work together for the best interests of their children. When parents rise to the occasion, their actions are witnessed by their children and provide the best example of how these adults-to-be should act in the future.
Even if parents are cooperative with each other, other issues can throw an access schedule into chaos. One parent could be a healthcare professional, first responder or a transit worker – individuals on the frontline of this war. These parents come face-to-face with third parties who have contracted the virus or individuals who may potentially have the virus. These first-responders then come home to their children – the same children who may be traveling to the other parent in a day or so. Divorced parents in these situations must deal with continuing to follow an access schedule where a child travels between their homes or terminating the schedule under the circumstances. In such situations, alternative access should be established using such applications as Skype, Zoom, Facetime and other such real time media. Importantly, parents and children must understand these modifications are temporary.
These are hard times for all, and there are no easy answers when it comes to custody and COVID-19. But the UFO guidelines listed herein should help resolve these issues in a reasonable way balancing parent’s and children’s rights and best interests.
Eric I. Wrubel is the head of the Matrimonial and Family Law group at New York law firm Warshaw Burstein, LLP. A Fellow of the American Academy of Matrimonial Lawyers, Eric’s legal practice is devoted to handling complex family and matrimonial matters. https://www.wbny.com/