Some states say parents should follow their normal custody schedule, but there’s no road map for the current situation.
What Does Texas Law Say?
Texas family law attorney Susan Myres recently advised a couple struggling to keep their shared custody schedule during the coronavirus pandemic. The father, who lives in Louisiana, wanted to pick up his child from the mother's house in Texas.
But if the father left Louisiana, a hot spot for the virus, he would have to quarantine in Texas for 14 days. Myres suggested that the parents meet at the border to avoid the two-week quarantine.
This is the type of situation that parents with shared custody are facing, as they are forced to navigate uncharted territory during the coronavirus pandemic. In some cases, parents must weigh the importance of time with their child and the health risks. And if the parents don't agree on what's best for their child during the health crisis, they have limited means of settling the matter in the justice system.
Follow Court Orders, Like California and Maryland
Myres, who is also president of the American Academy of Matrimonial Lawyers, says that many state Supreme Courts, such as those in California, Maryland and Texas, have issued orders or guidance declaring that parents should follow their court-ordered possession schedule during COVID-19.
In Texas, for example, the state's Supreme Court issued an order on March 17 stating that parents should follow their normal schedule and that "possession and access shall not be affected by the school's closure that arises from an epidemic or pandemic" including COVID-19.
But for parents like the couple co-parenting from Louisiana and Texas, transporting their child between homes isn't so easy. And in major cities, where they have to take public transportation to switch from one parent to the other, there could be exposure to the virus. States don't offer a road map for how to handle these unique situations.
What Does New York Law Say?
In New York, the administrative judge has ordered parents to "act reasonably," but Dana Stutman, a matrimonial lawyer in New York City, says that parents might think differently in terms of what is risky behavior during COVID-19.
For example, some health care workers on the front lines might want to continue taking care of their children during the outbreak, and they might believe that they have the right to do so as long as they follow the proper precautions.
Earlier in April, a New York Times story detailed the experience of New Jersey physician Dr. Bertha Mayorquin, who was asked by her hospital to stop teleworking and to help treat non-coronavirus patents at an urgent care center. When Mayorquin accepted the hospital's request, her soon-to-be ex-husband, Wendell Surdukowski, obtained a court order granting him sole temporary custody of their children.
"Many people working in the hospitals – doctors, nurses, so many of us – are parents," Mayorquin told the Times. "Are our children going to be taken away from us because we are on the front lines helping people?"
Not All Parents Can Obtain a Similar Court Order
But Surdukowski told the judge that Mayorquin's job was putting their children and himself (he has an underlying health condition) at risk of infection. After Mayorquin agreed to go back to teleworking, the judge reversed the order and she was able to see her children again.
Not all parents can obtain a court order like this, though, according to Stutman. Judges will only look at cases that are already in their court system, she says. If a couple has been divorced for years and their case is no longer pending, they have to figure out a solution on their own.
The American Academy of Matrimonial Lawyers and The Association of Family and Conciliation Courts released a joint statement of guidelines on March 19 to help separated parents work out a plan during the health crisis.
How is Massachusetts Dealing with This?
The statement acknowledges that some parents might have to work extra hours during the pandemic, while others might have reduced hours and that this might impact their normal routine. The guidelines encourage parents to use video calls to allow that parent to keep in touch with the child.
The guidelines also say parents should try to provide makeup time if the other parent misses out on their scheduled time with the child.
"Family law judges expect reasonable accommodations when they can be made and will take serious concerns raised in later filings about parents who are inflexible in highly unusual circumstances," the statement says.
Massachusetts Probate and Family Court Chief Justice John Casey recently issued an open letter encouraging parents to read those guidelines and stressing the importance of children having access to both parents during such a difficult time.
"The concept of parents being able to parent is not stayed during this crisis," Casey tells U.S. News. "In fact, it may be needed even more right now."
What About Tennessee?
But one district court in Tennessee, which includes Rutherford and Cannon counties, released an order that contradicts the guidelines Casey is endorsing. The court order states that parenting time should not be affected by COVID-19, but it also lists a few exceptions including the event of a "lockdown" or a "shelter in place."
Under a shelter-in-place order, the primary residential parents should have the child in their home within four hours of the order, according to the district court. Parents can agree on alternative parenting time arrangements, which must be signed by both parties.
In Massachusetts, Casey says the Probate and Family Court is able to hear emergency cases regarding parenting time, but they haven't seen as many emergency cases as they initially expected.
Majority of Parents Are Doing Fine
Among the cases the court's judges have seen involve modifying parenting time where elderly grandparents had custody of their grandchildren, one parent not practicing social distancing or stay-at-home practice, and if the child's health is already compromised or they are undergoing medical treatment.
Myres says that parents who are struggling to find a solution during the pandemic are in the minority.
"Most of our parents are doing just fine, relative to everything else going on," Myres says.