By: Thomas DeCataldo
The ongoing Covid-19 pandemic has caused the tragic loss of life and spurred international panic. Adding insult to injury, the economic impact of this health crisis has thus far been devastating, with stock markets collapsing and many struggling to keep businesses afloat while being unable to work or attempting to do so remotely. As a result of the tumult caused by this virus, divorcing couples and separated parents find themselves attempting to cope with several accelerants to an already stressful situation.
Against this backdrop, in recent weeks many parents questioned the impact of the Covid-19 pandemic on custody and parenting time arrangements, whether entered formally as Court Orders or informally by agreement of the parties. The pandemic presents many hotbed areas for disagreement among separated or separating parents, particularly for those in high-conflict situations.
The concern over conflict during this time is so omnipresent in the practice of family law that in an attempt to minimize parental conflict during this time, the American Academy of Matrimonial Lawyers and the Association of Family and Conciliation Courts released joint guidelines for separated parents with Seven Guidelines to follow during this crisis.1 The organizations urge parents to comply with existing orders, but also to be flexible and generous with any modifications that may be necessary. They encourage make-up parenting time and virtual access to children through programs such as FaceTime.
Despite the attempts to avoid conflict, there remain numerous potential areas of disagreement.
Regular Parenting Exchanges During the Covid-19 Pandemic
Many separated families follow parenting schedules that call for multiple exchanges throughout the week. Under normal circumstances, this is a non-issue and a routine practice, but at a time when virtually everyone is being encouraged to stay home, it begs the question at the forefront of so many minds – to what degree must regular parenting exchanges continue given the staggering efforts being taken to promote social distancing?
Obviously, there is no specific answer to this inquiry and these situations each turn on their specific facts and circumstances. However, families should consider whether temporary modifications to existing schedules help protect the best interests of their children and the general public, if doing so promotes the same general access between parent and child while minimizing public outings. These modifications can be negotiated with the help of experienced counsel so that interim adjustments can be made without long-term consequences.
Social Distancing Could be a Conflict for Separated & Divorced Parents
Another major potential conflict between separated parents can arise if the parents disagree over the level of social distancing necessary during the pandemic. One parent may strictly adhere to recommendations to remain home, while another may continue going into society either for personal reasons or to fulfill employment responsibilities. Disagreement on this point creates serious issues as the parent continuing to interact with society potentially negates the other parent’s efforts to social distance, since the virus could spread to the children during parenting time. Failure to agree on a unified approach could reasonably lead to serious conflict and impact on the best interests of the children at issue.
Additionally, on a less severe scale, parents may disagree over the specific implementation of social distancing. For example, one parent may continue bringing children to the grocery store or other public locations, while the other believes these risks to be unreasonable. Here again, the pandemic triggers the potential for conflict and an impact on the best interests of children.
The Impact on Non-Parents
Another potential concern is if one parent seeks to protect the safety of a non-party, such as a member of the high-risk population. For example, a parent may reside with an elderly grandparent, and consequently carry greater concern over the spread of the virus because of the risk to the non-party. In high conflict situations, one party may be indifferent to the safety of a non-parent, and unwilling to compromise or adjust his or her lifestyle or parenting plan based on the vulnerability of a third party. It remains to be seen how Courts reconcile the safety of non-parents with the importance of continuing regular parent-child contact. Here again, these situations are likely to turn on the specific facts and circumstances of each case.
Sharing Parental Responsibility During A Pandemic
As a result of the pandemic, children are out of school indefinitely, requiring daily parental oversight. This too may trigger conflict because some parents must continue to go to work, therefore needing child care. Others may attempt to work remotely but struggle to function at their job while overseeing their child(ren). This dynamic creates potential disputes over a reasonable allocation of responsibility, as well as a potential increase in childcare costs.
The above questions present only a small sample of the possible disputes brought into play by this pandemic. To compound the problem, most litigants will not have meaningful access to New Jersey’s Family Court system as another consequence of efforts to curtail the spread of the virus. As of March 18, 2020, the Supreme Court of New Jersey has indefinitely postponed all in-person Court appearances with only very limited exceptions for emergencies. While our judiciary is doing its best to provide video and telephonic access to the Courts, it is not unreasonable to expect that dispute resolution will be hard to come by for at least the coming weeks.
Given the numerous parenting issues potentially triggered by this pandemic, it is important that parents consult attorneys with strong backgrounds in custody and parenting time issues so that creative measures can be implemented during these trying times. Seasoned matrimonial attorneys can find alternative means to resolving conflict even while the Court system operates at a temporary deficit. These issues can be addressed through video or telephonic mediation or arbitration, parent-coordination, or if necessary, by litigating the matter through proper channels.
As a final comment, it is reasonable to expect that due to the ongoing limitations of the Court system, much of what transpires between separated parents during this pandemic is unlikely to be litigated in real-time, but rather the subject of after-the-fact litigation by a parent that believes he or she was aggrieved during the crisis. New Jersey’s custody statute requires our Courts to consider certain factors when adjudicating custody disputes, two of which are the “parents’ ability to agree, communicate and cooperate in matters relating to the child,” and any history of a parent’s “unwillingness to allow parenting time not based on substantial abuse.” Both of these factors are likely to be brought into play by parental conflict occurring during the Covid-19 pandemic and may lead to litigation over a parent’s conduct.
Because of this, it is critical that an appropriate record be maintained during the pandemic to support or explain the decisions and actions taken by the parties. This becomes much easier to do with the assistance of competent counsel and helps parties better define their actions so future problems can be avoided.
In concluding their joint guidelines, the AAML and AFCC offer the following statement of encouragement to people stressed by the pandemic and concurrent parental conflict:
“Adversity can become an opportunity for parents to come together and focus on what is best for the child. For many children, the strange days of the pandemic will leave vivid memories. It’s important for every child to know and remember that both parents did everything they could to explain what was happening and to keep their child safe.”
Are you a separated or divorced parent and have questions about the pandemic? Contact Skoloff & Wolfe, the top rated Family Law firm in NJ.
At present, it remains unknown when life will go back to normal. However, there will come a day when Courts re-open and it may be necessary to evaluate the decisions made by parents during this crisis as it impacts their children. With proper guidance from a seasoned attorney, parents hopefully have little to worry about if and when that day may come. Contact us to discuss issues like these and your unique circumstances.
Thomas J. DeCataldo is a divorce attorney with Skoloff & Wolfe, a top rated Family Law firm in NJ. He focuses his practice on significant matrimonial disputes and helps parents navigate the complex issues involving children, child custody and divorce.
- The Guidelines are currently available at: https://www.afccnet.org/Portals/0/COVID19Guidelinesfordivorcedparents.FINAL.pdf?ver=2020-03-17-202849-133