With the global spread of the COVID-19 virus, people are having to rapidly adapt to major societal and structural changes in their daily lives. As schools, businesses, government facilities, and so many other things close, families are faced with new issues of working from home, homeschooling their, children, and figuring out how to co-parent in the midst of a global pandemic.
The American Academy of Matrimonial Lawyers has provided guidelines to assist parents in their co-parenting. You can read their guidelines here: COVID-19 Co-Parenting Guidelines
In addition to those guidelines, TALG also recommends that co-parenting parents and families consider the following:
- Analyze the Risk vs. Reward of Carrying Out Custody Orders.
Co-parenting parents should continue to comply with their custody orders; however, communication with one another about the risks and rewards of doing so is paramount.
When determining whether or not to transfer children between co-parenting households to comply with custody orders, co-parenting parents should consider and discuss together, the following:
- What is the risk of custody exchange vs. what is the reward? Is our child in a safe, isolated, or mostly isolated household with individuals who are complying with governmental restrictions and guidelines? Is there are possibility that the manner of our custody exchange will unnecessarily exposes people to unnecessary risk? Are there ways we can mitigate any risk involved in carrying out our custody exchange?
Consider, practically, the risks of custody exchanges on your children and the circumstances of your home. For many parents who are still going to work every day, having a child home without supervision is not an option. Determine if the other parent is working from home or is otherwise better able to provide round-the-clock care for the children during this time. For those with children whose health is potentially compromised, consider the risk of moving the child between houses to carry out custody orders. Additionally, many families are blended and/or extended and may consist of aunts, uncles, cousins, nieces, grandparents, etc. Parents in larger households should weigh the risks of having their children in their vs. their co-parent’s household.
Regarding custody exchanges, oftentimes these occur in public places such as schools, local restaurants, police stations, etc. Parents should consider the availability of these locations and the risks posed by utilizing them. Parents should confer and assess whether, for the time being, there are perhaps better, less riskier exchange sites such as either parent’s home, a more isolated exchange location, etc. Granted this will not work in all custody exchange scenarios, including those where one parent’s home address is purposefully confidential due to domestic violence or other issues; however, if this is an option for parents, they should consider it.
- Is there a likelihood that our custody exchange could put us, the other co-parent, or other family members that either of us have at risk?
Parents should consider their and their co-parents home circumstances to determine risks involved with custody exchanges. Some families may be caring for extremely young, unvaccinated children or for elderly people who are more susceptible to the effects of the COVID-19 virus. If this is the case, parents should communicate with one another about their concerns, and try to reach reasonable, practical solutions.
- If we are concerned about the risk and think it may be too great, what alternatives do we have? Can we do skype or use some other method of communication/visitation? Can we mutually agree to modify our exchanges temporarily to reduce risk? (I.e. are we willing to agree to go from a 2-2-3 to a 1 week on/off schedule temporarily.)
There are many things co-parenting parents can do to provide for visitation during this time while still mitigating the risks. Parents should ensure that they have multiple forms of communication available (I.e. telephone, e-mail, Skype, teleconferencing, etc.) to make sure children are accessible to the other parent.
If you and your co-parent agree to temporarily modify your child custody schedule or agreement, check the terms in your current orders or judgment to see what needs to be done to accomplish that. Some judgments or agreements simply require a signed writing, others may require that writing to be notarized, and some may require parties to return to court. If your orders do not provide any guidance, you should, none-the-less, memorialize any agreements in writing. Make sure you comply with any modification requirements in your orders and always have any agreements memorialized in writing.
While parents should still comply with their custody orders, as the Co-Parenting Guidelines indicate, they should also be willing to adapt and be mindful, considerate, transparent, and communicative with one another.
- Governmental Organizations Are Operating at Very Limited Capacity.
Family Law courts in California are operating on a very limited basis such they are generally only hearing those matters which are time-sensitive or emergency in nature (I.e. Temporary Restraining Order, Domestic Violence, and Child Abduction matters). This means that child custody disputes that are not “time-sensitive” or “emergency” are not likely going to be heard anytime soon. Further, several cities have scaled back police and sheriffs’ department operations, so police resources are limited at this time.
Co-parenting parents who are considering seeking to proceed to court or utilize police to enforce custody orders during this time should ask themselves:
- By the time my case is heard, will the issue be moot? What is the likelihood the court will enforce my orders? How will I look before the court if I insist on enforcing my custody orders during this time?
If you are seeking to get an immediate custody change and your situation does not qualify as an emergency under ex parte requirements, it is possible that your case won’t be heard for several months and there is a possibility that the current state of affairs will have returned to normal before your request is heard.
If you are seeking an Order to Show Cause for Contempt because of the other parent’s violation of custody orders, consider that Judges are aware of the impact of this crisis on family law matters and they will likely recognize that compliance with custody orders, if unsafe, is difficult or impossible. Looking ahead, courts are probably going to be less likely to pursue contempt for violations of orders that occur during this time. This would also apply to people who are unable to comply with child support orders because suddenly find themselves unemployed or grossly underemployed.
Additionally, it is important to consider the image you present to the court when you pursue orders – as the Guidelines note, Parents who are adamant about enforcing custody orders when doing so is not in the best interests of their children present a poor picture to the court. Judges will consider who has acted with reason, consideration, and thoughtfulness as much as they will consider those who were highly inflexible, unnecessarily adamant, and unreasonable.
- Is enforcing my custody orders an absolutely emergency such that I need to contact law enforcement? Are there other alternatives to enforcement?
Co-parenting parents should be aware that custody enforcement is likely low to very low priority for police departments, so requests to law enforcement agencies may take substantially longer or not be carried out at all.
Alternatively, parents who are wishing to enforce their custody orders should consider contacting their Family Law attorney to see what out-of-court methods might be utilized to aide them. Many Family Law attorneys are still working and oftentimes, a letter to the other parent reminding them of their co-parenting obligations may be sufficient to ensure their compliance.
- Using A Force Majeure Clause.
Though typically not used in California custody agreements and judgments, given the current state of affairs, parties to a dissolution, separation, parentage, or other custody matter where children are involved, should consider incorporating a “Force Majeure” provision into their custody agreements.
“Force Majeure” clauses are typically found in contacts and they excuse a party from performing under the contract due to an unforeseeable circumstance that is outside of the party’s control. Per the Merriam Webster dictionary, a “Force Majeure” is defined as a “superior or irresistible force or an event or effect that cannot be reasonably anticipated or controlled.” While Force Majeures can include what are considered “acts of God” (I.e. flood, fire, tornado, earthquake, etc.), it can also cover more human-caused issues such as gasoline shortage, work stoppages, government shutdowns, war, etc.
In the context of Family Law, a Force Majeure provision may allow parties to provide for special arrangements in custody agreements that accounts for instances where it is extremely difficult or impossible to carry out regular custody obligations, such as a viral pandemic. In this way, it is less of an excuse from performance, as in traditional contract law, and more of an excuse from being subject to contempt for violation of custody orders which cannot, or perhaps should not, be complied with.
For Family Law custody agreements and orders, at a minimum, Force Majeure provisions should specify: (1) the types of acts that will be covered by the Force Majeure, (2) the effect that the Force Majeure will have on the parties’ adherence to the custody orders, (3) what the parties obligations, rights, and expectations are during the period of the Force Majeure, and (4) and what is expected for the parties to be able to resume their obligations under the normal custody arrangement. Each custody arrangement is different; however, so due consideration should be given to the particular circumstances of the parties.
Parties who are concerned about the effects of COVID-19 on their custody or other orders should consider incorporating Force Majeure clauses into pending agreements or modify existing agreements to include them.