Divorcing in a Covid/Post-Covid Era: Part I - Child Custody
Divorcing in a COVID/Post-Covid Era - A Three Part Series
In the hopes that we are able to imagine a finish line, after nearly a year of counseling clients through this COVID19 pandemic, we thought we’d share some of what we’ve learned and what we imagine will carry forward beyond the post-covid era.
There’s a lot to cover. Without even getting into the devastating loss of life, we’ve got: job and income loss, the shifting care and education of our children, the struggle of small business owners, fluctuating property values, and the trending migration of families out of the city, just to get started.
We’ve had to apply all of that uncertainty to the framework of divorce, which in any context, is easiest to unpack by organizing the issues into three boxes:
Custody,
Spousal maintenance ("alimony") and child support, and
Equitable distribution of property.
This series will look at each of these areas with a lens to our current reality.
Part I - Determining Custody During and After COVID19
Working through custody issues during COVID19 has been the ultimate test of patience for all parents and parties involved. Never before have we had to deal with unprecedented care and safety issues for children, while at the same time the courts are operating in an extremely limited capacity. Parents disagree about when and how their children should have to isolate; about how to respond in the case of a positive COVID test result, and now about whether it’s safe for their children to get vaccinated.
While courts are always measuring the best interests of the children as the guiding star in all decision-making, differences in opinion among divorced or separated parents regarding safety protocols and COVID-risk tolerances have thrown that “best interests” determination into serious flux. The courts are overwhelmed and judges have had to rely on parents to balance safety with reason (which, unsurprisingly, can be especially challenging during a pandemic).
We have counseled clients on how to best sift through the tension between pandemic safety and potential exposure risks with custody exchanges, decisions regarding in-person schooling, relocation requests, travel safety and more.
What we’ve learned can be boiled down to a few key points:
Rule #1: Play the Long-Game
Without regular access to court intervention, these conflicts must be resolved among the parties and sometimes result in one party conceding on an issue in the short-term as part of a long-term strategy toward a final custody determination. For example, if the parties disagree on whether a child should return to the other parent’s home because the other parent is not following the CDC guidelines or because another family member has tested positive for COVID19, we would strategically counsel clients on how to make wise and well-considered decisions regarding the safety and well-being of their children in the face of conflict with the other parent - decisions that could support a final custody determination or modification.
Rule #2: Be Flexible
With the majority of children being schooled from home, parents working from home and some even having to leave the workforce permanently, the need for parents to be flexible with each other has become paramount. While you may have historically been the primary caregiver or custodial parent, you may find that you need the other parent to step up and take on the role of overseeing schooling - which can feel vulnerable. It may mean working with the other parent on an at-home schooling schedule and providing enrichment activities that might be outside of your typical parenting schedule. In a time where schedules of all sorts have been in flux, allowing this aspect of your visitation schedule to be fluid so that it best helps your child feel supported will go a long way.
Rule #3: Don’t Let the Perfect Be the Enemy of the Good
What we already knew is that, when families split, there is often a period of time that the noncustodial parent will be able to learn “on-the-go.” The court’s don’t expect the noncustodial parent to be perfect right out of the gate. Instead, they’re focused on whether the noncustodial parent is genuinely willing and able to care for the children. There is a delicate balance between raising awareness of one parent’s perceived shortcomings versus what might be actual concerns that must be presented to the Court. Taking this approach may feel overwhelming, but (barring cases of abuse or neglect) what the judges want to see is that you acknowledge and support your children’s bond and relationship with the other parent, despite that parent’s perceived flaws.
We know none of this easy, but as Justice Jeffrey Sunshine, the New York State Coordinating Judge for Matrimonial Cases told us early on in the pandemic, “If parents do not conduct themselves appropriately and sensibly, their children will remember throughout their lives how they acted and so will the judge deciding the case.”
If you are struggling with managing custody issues, please contact us to discuss your situation: consultation@artesezandri.com.