Co-parenting children when parents are separated or divorced can be challenging in normal circumstances. One would agree, however, that times are not normal. The country is in the midst of a pandemic due to the COVID-19 virus. Governor Murphy has closed schools and many business, and he has directed that we engage in “social distancing” and stay at home for the indefinite future.
Families all over the State are concerned about their children’s health and well-being, not to mention family finances due to the number of people who have lost jobs, been furloughed or suffered from cuts in pay or hours. Existing arrangements for custody and parenting time were designed for normal circumstances, not necessarily for unprecedented times such as these.
Questions may arise as to how separated parents address custody, parenting time and child support issues. To what extent do existing orders have to be followed? Generally, many existing agreements or orders for parenting time can and should be followed. However, can a parent withhold or refuse parenting time? What happens if a parent or child is exposed to the coronavirus or is at heightened risk of exposure? What if a parent, child or family member begins to exhibit symptoms? How should parents accommodate a household that has an elderly family member or a family member with a health condition which makes COVID-19 particularly deadly? What if one of the parents lives out of state and the child has to travel some extended distance? What if the households do not have the same social distancing practices? Can both parents’ homes accommodate educating the children while school is closed? Should parenting time be modified to reflect that both parents are home more either due to having lost their jobs or they are working from home?
This uncharted situation is fraught with opportunities for conflict and dispute, even in situations where separated parents normally get along. It can be even more difficult in situations where separated parents do not not generally get along. At present, the court system is not operating as usual, and applications can be made only for emergent applications. What you consider emergent might not be what the courts consider emergent. Even parents who do get along have to determine how to resolve the conflict, and how to appropriately memorialize that agreement so that terms are clear and not used against either parent later. Here are some considerations to think about as you attempt to resolve these situations:
- Focus on the best interest of your children. Separated parents do not always get along. Make the issue about what the children’s needs are. Do not make any disagreement personal. It may be difficult but try to set aside any negative personal history you have with the other parent, and do not use the children to punish the other parent or exact revenge.
- Consider the fact that everyone is scared and worried. You have fears and concerns about your children’s well-being and your own. Your child’s other parent also has concerns and fears. It may help each parent to isolate exactly what the problem is. What is it exactly that you are worried about? Focus on that problem and try to think about ways that this particular problem can be resolved in a mutually agreeable way. This requires the parents to express themselves in a calm and reasonable manner, explains their concerns, and to listen with an open mind.
- Be flexible and creative. Not every concern needs to be resolved with a modification of parenting time. There can be other accommodations and resolutions that address parental concerns. Sometimes a modification of parenting time is necessary due to the present circumstances involving this pandemic. It may not be what you prefer. It need not be permanent. There may be multiple modifications as this situation plays itself out over time.
- Get it in writing. If you can reach an agreement, do it with some formality so that the terms of the agreement are clear to both sides.
- Consider a lawyer. A lawyer can help you determine what your options are and what the law requires. If an emergent application needs to be made, a lawyer can help you. A lawyer can help you negotiate. They do not operate with the same emotion that you do. A lawyer can also draft an agreement that is clear and prevents misinterpretation and includes all terms.
What if the parties have a dispute about custody, parenting time or support during this pandemic and they cannot resolve these issues on their own? If your situation is an emergency, an attorney can file an emergent application for you. Judges can resolve those disputes via a phone or video conference and/or review of written pleadings filed. If your case is not considered “emergent”, then what? The doors are not closed to you. Law firms and other professionals are still open and able to service their clients and there are alternative forums available to have a third party resolve the matter. For example, you may proceed with:
- Mediation: A mediator is hired that can help parties resolve one or more disputes on their own. The process is confidential and neither party is generally bound unless an agreement is written and signed. The mediator is not a judge, however, and cannot make any decisions. The mediator assists parties to resolve a dispute that they could not resolve on their own without having to go to court.
- Parenting Coordinator: Parents who have tremendous conflicts with one another and difficulty communicating will on occasion hire a parenting coordinator to help them resolve regular parenting and parenting time conflicts. Parent coordinators are also not judges. A parenting coordinator will help parties try to resolve issues on their own and help parties with problems communicating. The parenting coordinator can make recommendations as to what the parents should do. They are not bound, however, by these recommendations usually. A parenting coordinator is often a family law attorney, but in some circumstances the parenting coordinator is a therapist or mental health professional.
- Arbitration: If the parties have a dispute that simply needs a judge to decide the parties can proceed in arbitration. The arbitrator is usually a seasoned matrimonial attorney or a retired judge who is hired to make a final determination as to the issues before him or her. The parties enter into an arbitration agreement and agree to be contractually bound by the decision of the arbitrator. The arbitration agreement also controls what issues the arbitrator is being asked to resolve. There are only very limited circumstances in which the arbitrator’s decision can be appealed to a court.
The Law Office of James P. Yudes, P.C. is open and available to serve you during this pandemic. Lawyers can meet with you by phone or by video conference to ensure your safety during this emergent health situation. We are available to pursue any emergent applications to the court that may be necessary, to resolve any disputes in other forums, and to help you negotiate, draft, review and sign any written agreements.