Divorced/separated parents sharing custody of children during the COVID-19 pandemic face special challenges for parenting, according to the leaders of the American Academy of Matrimonial Lawyers (AAML) and the Association of Family and Conciliation Courts (AFCC).
Susan Myres, president of American Academy of Matrimonial Lawyers.
Texas Lawyer had the chance to speak recently with Houston attorney Susan Myres, president of the AAML, about shared custody and the challenges divorced/separated parents face during the time of COVID-19.
During this unprecedented crisis, must court orders still be followed to the letter?
Susan Myres: Many jurisdictions have mandated that court orders regarding custody be followed as closely as possible. If parents are supposed to transition the children from one parent to the other after school, for instance, they should attempt to continue to follow that timetable even when the schools are closed. However, we are all in an unprecedented situation. Obviously, some rules in some parents’ situations will have to bend. Parents should begin with a general expectation that they will follow the court orders and then address only those circumstances that are really unusual.
What if one parent is a medical staffer or firefighter working in the thick of the crisis? Should the children be kept away from this parent for the duration? What if a parent has a more peripheral, but still eye-of-the-storm job, such as postal worker or food deliverer? What if one parent simply thinks the other is being careless about possibly exposing the children to the virus?
Making a decision as to how dangerous it might be to allow a child to visit a parent who is a medical worker or firefighter—or grocery store clerk or pharmacist—is going to be a matter of cautionary parental judgment. The welfare of children has to come first, of course, before all other considerations. Parents should make every effort to come to an amicable agreement to change court orders temporarily under these trying circumstances, and then should carefully document their agreement. If they cannot agree, they can seek virtual assistance from a mediator, therapist or lawyer. But both should bear in mind that, if there is a court hearing eventually, the parent who withheld the child will have to fully justify the decision and not be seen as someone who simply took advantage of the situation to keep the child away from the other parent. Using COVID-19 as a tool to prevent visitation will have serious consequences for the perpetrator. Ideally, parents should create an agreed-upon protocol for both homes covering hygiene, transparency, rules to follow for social distancing and the like. Children need consistency. Having the same rules in both households goes a long way towards achieving that comfortable consistency. Clearly some parents will be more concerned about protective measures than others. When in doubt, parents should seek guidance from a professional. For example, if a child has documented respiratory issues, a pediatrician may suggest temporary cessation of visits during the worst period of the pandemic.
If a parent is forced to stay away from the children for a time, how much extra makeup time with the children is reasonable afterward? The entire summer?
The parent who had more time with the child while the other parent had less because of virus conditions should try to be generous in allowing the other parent extra “makeup” time with the child when this is all over. However, a demand to keep the child for the entire summer as recompense will probably be considered excessive—unless, of course, the pandemic and staying-at-home orders continue for months!
What can be done to mitigate the time away from the non-custodial parent and from grandparents?
Now is the time for parents to be as creative as possible! Children and absent parents or grandparents can still spend time together on Skype, Zoom, Go to Meeting or FaceTime. Electronic visits cannot replace in-person hugs and time together. But they are better than just a phone call and certainly better than nothing. Both parents should go the extra mile to make electronic time meaningful for the children. They can read the same books, sing the same songs and play the same games together. Children can display the artwork, Lego projects or other achievements they have pursued during the virus. They can come up with a riddle or a brainteaser and give the parent or grandparent a day or night to find an answer. There are lots of ways to stay close without being physically next to each other.
On the other hand, what if one parent is having to take on extra shifts or put in longer hours, even working at home, and needs to have the children for a shorter period of time than usual?
Please see the answer to the second question.
What if a parent paying child support loses his job or has to close her business, and can no longer manage to pay the court-ordered child support?
If a parent has lost his job or her business has closed, the parent paying child support should file a request for an adjustment as quickly as possible, even if the courts can’t respond any time soon and even if the parent requesting the change eventually drops the request. It’s important to go on the record explaining and documenting a radically changed financial situation to justify a modification of child support, so the parent making payments doesn’t end up having to cover hefty arrears later. If the parent was having child support garnished from his or her salary and has now lost his job and has no salary, that does not automatically relieve her of the responsibility to pay child support. In many cases these days, the parent receiving the child support has also lost a job or otherwise has less income than before, and the child still needs to eat every day! The parent asking for a reduction should still pay something if at all possible; the parent receiving support should try to be understanding under the circumstances.
What do parents do if they simply cannot arrive at a mutually satisfactory agreement on changing custody protocols during the time of the coronavirus?
Please see the answer to the second question.
What could happen if a parent refuses to follow the court order for possession? What if that parent is using the pandemic to keep the child away from the other parent?
If a judge determines that a parent did use the pandemic as an excuse to keep the child from the other parent more than was really necessary, that parent could be held in contempt, ordered to provide prime makeup time, suffer a permanent change in the periods of possession, and, in egregious cases, lose custody. Judges want the primary parent to openly and strongly encourage a good relationship with the other parent.
What if the visitation was supposed to be supervised and the locations for supervision have been closed? What can be done to continue some access?
If visitation was supposed to be supervised and all the locations for supervision have been closed, this could be another occasion for creative virtual visitation as described in #4. There is no need to cut the child off completely from any contact with the other parent during a pandemic that could last for weeks or months.
Parents should ask themselves: At the end of this life-changing event, in the years to come, how would they want their children to tell the story to a therapist, or perhaps to grandchildren? Humans who are in a place of deep fear and uncertainty tend to go to one extreme or the other: they react selfishly and irresponsibly, or generously and honorably. Either way, children will see and remember. Parental behavior during this plague will not only affect how the child remembers his parents, but also how the child herself behaves in in similar crises.
Susan Myres is a board-certified family law attorney at Myres & Associates. She has been practicing in Houston for over 35 years and has served in leadership positions locally, statewide and nationally. She is also the current president of the American Academy of Matrimonial Lawyers (AAML).
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Reprinted with permission from the March 09, 2021 edition of the Texas Lawyer © 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 - firstname.lastname@example.org.