The health, safety and well-being of children and families remain my foremost consideration during the COVID-19 public health emergency. This is an extremely difficult and stressful period for everyone.
On the one hand, there is an existing parenting order. There is a presumption that all orders should be respected and complied with. More to the point, there is a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child.
On the other hand, the well-publicized directives from government and public health officials make it clear that we are in extraordinary times; and that our daily routines and activities will for the most part have to be suspended, in favor of a strict policy of social distancing and limiting community interactions as much as possible.
Parents are understandably confused and worried about what to do. Similarly, this is uncharted territory for our court system. We all have to work together to show flexibility, creativity and common sense – to promote both the physical and emotional well-being of children.
None of us know how long this crisis is going to last. In many respects we are going to have to put our lives “on hold” until COVID-19 is resolved. But children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.
In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).
In some cases, a parent’s personal risk factors (through employment or associations, for example) may require controls with respect to their direct contact with a child.
And sadly, in some cases a parent’s lifestyle or behavior in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered. There will be zero tolerance by judges for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.
Transitional arrangements at exchange times may create their own issues. At every stage, the social distancing imperative will have to be safeguarded. This may result in changes to transportation, exchange locations, or any terms of supervision.
And in blended family situations, parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in a household – including children of former relationships.
Each family will have its own unique issues and complications. There will be no easy answers.
But no matter how difficult the challenge, for the sake of the child we have to find ways to maintain important parental relationships – and above all, we have to find ways to do it safely.
Most of our social, government and employment institutions are struggling to cope with COVID-19. That includes our court system. But parents and lawyers should be mindful of the practical limitations courts are facing.
If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion – but they should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time. They should not even presume that raising COVID-19 considerations will necessarily result in an emergent hearing.
So my advice to my clients now is:
a. The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.
b. The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.
c. Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner.
d. Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.
Everyone should be clear about expectations during this public health crisis. Parents want judges to protect their children. But with limited judicial resources and a rapidly changing landscape, courts need parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings.
Judges won’t need convincing that COVID-19 public health emergency is extremely serious, and that meaningful precautions are required to protect children and families. Judges know there’s a problem. Judges are looking for realistic solutions. Judges will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.
In sum, please remember:
a. The disruption of our lives is anxiety producing for everyone.
b. It is even more confusing for children who may have a difficult time understanding.
c. In scary times, children need all of the adults in their lives to behave in a cooperative, responsible and mature manner.
d. Vulnerable children need reassurance that everything is going to be ok. It’s up to the adults to provide that reassurance.
e. Right now, families need more cooperation. And less litigation.
None of us have ever experienced anything like this. We are all going to have to try a bit harder – for the sake of our children.
Ronald Lieberman, Esq. is a partner and shareholder with ALBFR&M in Haddonfield, New Jersey. He represents clients throughout NJ in matters focusing on divorce and family law. If you are facing unique issues due to the COVID-19 personal health emergency, our office is open and here to assist.
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