On Monday, Allen, a 35-year-old in Minnesota, received a call from the childcare center watching his three kids that he needed to come pick them up immediately. “They told me it was their policy that ‘if anyone in the household is even being tested for COVID-19, no child would be allowed until a negative test result was produced.’ But this was the first I’d heard of anyone being tested for COVID-19,” he tells me.
It turns out, his ex-wife, a nurse working the frontlines of the virus, called the childcare center to alert them that she was being tested.
She has primary custody and sole power over setting the childcare schedule. Still, he watches the kids 40 percent of the time and took off the rest of the day to gather them. He wondered, though, what comes next. “Am I required to exchange our children to a parent that directly cares for COVID-19 patients?” he asks. “Until she produces a negative test result, we lose childcare. If she tests positive, I don’t know what to do. I don’t know what I can do.”
Allen’s case is obviously a worst-case scenario, but other divorced parents sharing child custody are similarly scrambling under shelter-in-place and self-quarantine orders. On one hand, not following custody laws could result in harsh penalties, like losing more time with their kids. On the other, by following them, they could knowingly or unknowingly spread the infection. Not surprisingly given everything on their plates at the moment, state governments haven’t offered much in the way of guidance. And so, parental custody is quickly devolving into a free-for-all.
“Custody laws are like any laws — they’re only as good as they’re enforced,” explains Russell Knight, a divorce attorney in Chicago. During “normal times,” violating a parenting agreement would land the parents in court, where the violator could be held in contempt. “A judge would then order the violator to follow the order, give the other parent ‘make up time,’ and finally, order the violator to pay the other parent’s attorney fees,” he continues.
But sheltering-in-place and quarantine clearly changes things. “You can’t follow the parenting agreement under shelter-in-place. You can’t follow shelter-in-place under the parenting agreement,” Knight explains. “So a judge won’t punish people for getting caught in a legal contradiction that wasn’t of their own making.”
Also, judges aren’t working anyway because the courts are closed. Which means, Knight says, “parents will do what they want without fear of reprisal.”
Such is the case for Allen. “Minnesota shut down the non-essential judiciary functions, which includes family court,” he tells me. “Without any guidance on how to handle this situation, it’s been very stressful. I’m telecommuting now so I can watch the kids as I work. Worst-case scenario is I have to take time off, but this definitely places additional stress on my career.”
In Washington state, attorney John Stocks says lawyers there “have read Governor [Jay] Inslee’s order and proclamation [for shelter-in-place] and looked for application,” which has resulted in the argument that taking children to and from the other parents’ house is an “essential” activity. He adds that Inslee’s spokesperson also put out a statement addressing this issue directly. It read, “Parents should continue to drop off and pick up their children as usual. Any disputes between parents over legally-binding parenting agreements should be handled in the usual way, in accordance with existing state laws.”
That said, Stocks tells me he wouldn’t rely on such a statement as chapter-and-verse. “It’s what we call advisory or dicta — i.e., non-binding. Still, it’s some guidance from the higher-ups,” he explains.
“Some courts are racing to figure out how to implement remote technology; others are waiting it out,” adds Katherine Miller, an attorney in New York. Overall, she says, the whole situation has proven just how unprepared the court system is to handle such a pandemic. “Balancing the heightened need of parents who cannot figure out how to manage their conflict, which is intensified by fear, while keeping court personnel safe — the whole thing is a mess,” she says.
The best thing both parents can do, then, is to be reasonable. “Experienced lawyers will tell their client to be generous — such as offering make-up time to the parent missing time, offering FaceTime or virtual visits via video apps — so that if there is court oversight, the client looks reasonable,” Stocks says.
If being reasonable is impossible, Miller suggests using a “co-parenting communication app” or seeking mediation via a third party. “Even when courts are unavailable to help, finding a mediator will help you reach a solution that works for both parents, and most importantly, for the children,” she explains.
Remember, too, she continues, “Everyone is in the same boat. So don’t worry about setting a precedent about not visiting or missing time. Although tensions are running very high, this will pass and the behavior you demonstrate now will either enhance or detract from your future co-parenting relationship, any pending court case, or both. After all, if a judge feels you put your children at risk, that might reflect badly on your parenting skills in the future.”
As for Allen, he excitedly reports that his ex-wife’s coronavirus test came back negative. “So the issue’s been resolved,” he says, “and we shouldn’t have a problem with exchanging the kids. Yay!”