According to a recent New York Times article, written by Meghan Twohey, some essential workers in the fight against COVID-19 are facing a different kind of battle on the home front – battling a former spouse who initiates child custody proceedings to keep them away from their children during the pandemic.
In her article, “New Battle for Those on Coronavirus Front Lines: Child Custody,” Twohey focuses on the child custody issues facing some essential workers as they try to save lives in the fight against COVID-19. In some cases, essential workers are forced to choose between staying on the job at a time when our nation’s need for their skills is so great or losing custody of their child(ren) due to concerns over the risk of exposure to the virus when they remain at work.
It’s a poignant reminder of the sacrifices made by doctors, health care workers, first responders, and all other essential workers on the front lines.
Stay-at-Home Orders Raise Child Custody Concerns
On March 19, 2020, Governor Gavin Newsom issued a stay at home order directing California residents to follow current state public health directives to stay home to help slow the spread of COVID-19. The Governor’s executive order provided an exception for “essential critical infrastructure workers” with guidance from the State Public Health Officer on the designation of “Essential Critical Infrastructure Workers,” which includes a list of workers that “help state, local, tribal, and industry partners who protect communities, while ensuring continuity of functions critical to public health and safety, as well as economic and national security.”
In Los Angeles, Mayor Eric Garcetti issued a “Safer at Home” emergency order, asking residents to stay home to limit outside activities to “essential” tasks. As outlined in Mayor Garcetti’s order, Los Angeles residents were ordered to remain in their homes. Some lawful exceptions were made for critical tasks such as securing food and health, safety and medical necessities, as well as caring for children, elder adults, family, friends, and people with disabilities. The Mayor further ordered that such workplaces remain closed to the public.
With stay-at-home orders being issued around the nation, parental fears over the coronavirus began to raise significant issues for essential workers co-parenting with a former spouse or partner who did not work on the frontlines. As state and local officials issued stay-at-home orders intended to deal with the coronavirus pandemic, divorced or separated parents began to disagree on where their children would reside.
The concerns over COVID-19 can’t be easily overlooked, as the Centers for Disease Control (“CDC”) revealed last week there were 9,282 reported cases of health care workers infected with coronavirus.
Because of their risk of exposure to coronavirus while at work, many frontline workers are self-isolating by sleeping in cars, pitching tents in their garage or moving out of the home to protect the lives of vulnerable family members. With increased fears that essential workers could place their children and others at risk for transmission of the virus, disagreements over continuing visitation schedules has at times resulted in child custody proceedings intended to withhold visitations during the pandemic.
Emergency Hearings Modifying Child Custody
While many courts are closed across the country, they are permitting emergency hearings (ex parte hearings in California) for certain cases such as domestic violence. In California, an order modifying or changing child custody is not typically granted in an emergency hearing unless there’s a showing of immediate harm to the child.
As reported in the Times article, family law courts have awarded temporary sole custody to a former spouse or partner for the duration of the pandemic due to the risk of exposure. Most stay-at-home orders are being extended, and there’s little consensus on when these orders will be lifted. According to experts, even when stay-at-home orders are relaxed, we’ll still be dealing with the possibility of a recurrence until a vaccine is developed.
It’s impossible to determine with certainty how long the pandemic will last. Many frontline workers argue that changing an existing custody order under these circumstances will lead to a prolonged separation from their children. Would their situation be different if they were married? Are we asking many of these workers to unfairly choose between their jobs or retaining custody of their children? Is this also an opportunity for some parents to obstruct visitation rights and unfairly withhold parental access to their children? These are all fair questions to ask.
According to an article written in The New Yorker, there’s some possibility for health care workers to see patients and to not become infected. Surgeon and writer Atul Gawande examined a very specific case in Singapore, where 41 health care workers were exposed to the coronavirus while performing a procedure where a tube is inserted into the patient’s trachea (commonly referred to as intubation). When the patient tested positive for coronavirus, the hospital workers were all put under quarantine but after quarantine none of the health care workers became infected with the virus.
The case was published in The Annals of Internal Medicine and they concluded, “That none of the health care workers in this situation acquired infection suggest that surgical masks, hand hygiene, and other standard procedures protected them from being infected.”
This is a moment when attorneys, parents and family law courts are also struggling to deal with a situation where there’s little guidance other than trying to do what’s in the best interest of this children. Each case has its own unique set of facts that must be considered, especially if there is a history of a parent withholding access to a child in the co-parenting relationship.
With the stress many front-line workers are facing right now, the personal toll of having to cope with child custody proceedings during the pandemic is regrettable and essential workers losing custody of children under these circumstances may create significant problems for children and parents well beyond the pandemic.
Seven Guidelines for Divorced and Separated Parents Sharing Custody Amid COVID-19
To deal with the growing child custody and co-parenting issues raised by the coronavirus pandemic, Chief Justice John D. Casey from the Probate and Family Court of the Commonwealth of Massachusetts, penned an Open Letter regarding co-parenting amid Covid-19.
In his letter dated March 24, 2020, Chief Justice Casey showed considerable foresight in addressing co-parenting issues during the pandemic and stresses the need for parental cooperation. In his letter, Chief Justice Casey specifically states,
“Parenting orders are not stayed during this period of time. In fact, it is important that children spend time with both of their parents and that each parent have the opportunity to engage in family activities, where provided for by court order. In cases where a parent must self-quarantine or is otherwise restricted from having contact with others, both parents should cooperate to allow for parenting time by video conference or telephone.”
Similarly, a statement was also released from the Maryland Judiciary on Matters Concerning Children & Families, providing custodial parents in that state with guidance to alleviate confusion surrounding custody orders in that state.
In an effort to provide clarity among divorced and separated parents attempting to co-parent during COVID-19, leaders from the Association of Family and Conciliation Courts (“AFCC”) and the American Academy of Matrimonial Lawyers (“AAML”), released a joint statement entitled, “Seven Guidelines for Parent Who Are Divorced/Separated and Sharing Custody of Children During the Covid-19 Pandemic,” giving families in crisis specific very specific guidelines for co-parenting during the coronavirus crisis.
For your convenience, the joint AAML and AFCC guidelines are provided here in quotations as follows:
1. BE HEALTHY. “Comply with all CDC and local and state guidelines and model good behavior for your children with intensive hand washing, wiping down surfaces and other objects that are frequently touched, and maintaining social distancing. This also means BE INFORMED. Stay in touch with the most reliable media sources and avoid the rumor mill on social media.”
2. BE MINDFUL. “Be honest about the seriousness of the pandemic, but maintain a calm attitude and convey to your children your belief that everything will return to normal in time. Avoid making careless comments in front of the children and exposing them to endless media coverage intended for adults. Don’t leave the news on 24/7, for instance. But, at the same time, encourage your children to ask questions and express their concerns and answer them truthfully at a level that is age-appropriate.”
3. BE COMPLIANT “with court orders and custody agreements. As much as possible, try to avoid reinventing the wheel despite the unusual circumstances. The custody agreement or court order exists to prevent endless haggling over the details of timesharing. In some jurisdictions, there are even standing orders mandating that, if schools are closed, custody agreements should remain in force as though school were still in session.”
4. BE CREATIVE. “At the same time, it would be foolish to expect that nothing will change when people are being advised not to fly and vacation attractions such as amusement parks, museums and entertainment venues are closing all over the US and the world. In addition, some parents will have to work extra hours to help deal with the crisis and other parents may be out of work or working reduced hours for a time. Plans will inevitably have to change. Encourage closeness with the parent who is not going to see the child through shared books, movies, and games, and communication through FaceTime or Skype.”
5. BE TRANSPARENT. “Provide honest information to your co-parent about any suspected or confirmed exposure to the virus, and try to agree on what steps each of you will take to protect the child from exposure. Certainly, both parents should be informed at once if the child is exhibiting any possible symptoms of the virus.”
6. BE GENEROUS. “Try to provide makeup time to the parent who missed out, if at all possible. Family law judges expect reasonable accommodations when they can be made and will take seriously concerns raised in later filings about parents who are inflexible in highly unusual circumstances.”
7. BE UNDERSTANDING. “There is no doubt that the pandemic will pose an economic hardship and lead to lost earnings for many, many parents, both those who are paying child support and those who are receiving child support. The parent who is paying should try to provide something, even if it can’t be the full amount. The parent who is receiving payments should try to be accommodating under these challenging and temporary circumstances. 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.”
Mediation
Massachusetts Chief Justice Casey’s open letter and the guidelines released by the AFCC and the AAML are important efforts intended to support parents during an unprecedented time for our country. At the same time, there will always be instances where parents simply cannot agree, and a court will be asked to make a tough decision.
As reported in the Times article, some courts require testing of a front-line worker before a visitation can occur with their child. Considering difficulties associated with obtaining a test and the disparities associated with getting results, is this a reasonable order under the circumstances?
Other court orders are making use of video and telephone communications as a reasonable alternative for frontline workers and their children during the pandemic, but there may be some essential workers who do not have access to a computer or wi-fi. Of course, what do you do about the larger issue; that is, many parents don’t have any other choice but to leave home and go to work in spite of the risk of exposure.
There’s a lot of uncertainty right now. Parents, attorneys, and judges need to consider the lessons that can be learned when dealing with a public health emergency of this magnitude in the future. Microsoft’s Bill Gates already warned a coronavirus like outbreak should be expected “every 20 years or so.” The possibility of reoccurrence is also very high. So – while parents grapple with the question, “how do you co-parent during a pandemic?” There’s never going to be a better solution than parents coming together to do what’s best for their children.
If you need help with a child custody issue in Los Angeles, or if you would like to find out more about emergency orders during the coronavirus pandemic, please contact one of our attorneys today at (323) 655-2105.
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