Co-parenting is hard and it has become more difficult since Covid-19 has spread throughout our community. Unfortunately, there is no precedent to help guide parents through this process and there is no legal standard to help guide the courts either. Although we are in uncharted waters, thankfully there are many factors to help guide your decisions during this time and there are many experienced attorneys to help answer any questions that may arise.
If you are residing with your spouse and have not started the divorce process, make sure that you have a plan in place if one parent tests positive for coronavirus. If you do have children, make sure that you designate a person to take care of your children if you need to become your spouse’s caretaker or if you become sick. If this is not possible, it is important to keep the children separated from the infected spouse. Although this may be a heavy topic, it is important to make sure that both you and your spouse’s affairs are also in order and if your children are old enough, talk and plan with them to figure out the best way to handle the situation. If the divorce process has not started, the court is unable to intervene, therefore, it is important that you attempt to keep a good relationship with your spouse while this emergency situation continues.
If the divorce process has begun or a divorce decree has been entered, and a parenting plan has been ordered from the court, it is important that both parents follow the parenting plan and all other orders. It is recommended that both parents try to follow the parenting plan to the best of their abilities, but understandably, if your ex-spouse does contract coronavirus, it may become necessary to deviate from the plan. Hopefully, neither you nor your ex-spouse will be subjected to such a terrible experience but if you do find yourself in this situation, try to work with your ex-spouse to come up with a temporary schedule to ensure that your children are safe.
The primary thing to remember is that there needs to be a good reason to stop following the court’s parenting orders. If you are thinking that it is important to withhold parenting time because your ex is infected, make sure to communicate your concerns and plans with your ex-spouse. Understandably, if your ex-spouse is infected, you will not want your child to have visitation; but if you do stop that parenting time, the courts may still see the withholding of parenting time as a deliberate violation of the parenting orders. Thus, it is important to make sure that you do come to an agreement or if an agreement cannot be reached that you save your conversations with your ex-spouse documenting the reasons that parenting time has been withheld.
In addition, if your ex-spouse further disagrees with the modification of the parenting plan temporarily, it may become necessary to ask the court to restrict the other spouses’ parenting time. To restrict a parent’s parenting time, the court requires the parent to show that the child is in imminent physical or emotional danger if he/she continues to spend time with the other parent. However, if you are thinking about restricting your ex-spouse’s parenting time, try to remember that courts want both parents to continue to follow the previous parenting plan so they will attempt to find an alternative solution unless the standard can be met. Therefore, it is not enough to guess whether the other spouse has tested positive or worry that your ex-spouse may test positive because he/she has continued to work as a necessary employee. The situation needs to be serious. In other words, it requires one parent to show that the child is in emotional or physical danger if the parenting time continues. Therefore, there needs to be something specific to meet this standard, and judges will not look kindly upon a very generalized concern for the child’s safety or general fear that the child got coronavirus in general.
With this in mind, it is paramount to know that it is still unknown how a judge will rule and decide these issues during this time. Judges may differ when deciding whether an infected parent may meet the endangerment standard to restrict the parenting time of the ex-spouse and also may find that the uninfected spouse should not be withholding parenting time. If your ex-spouse has tested positive and you do want to prevent your child from spending time with the infected spouse, there are several factors that you may want to consider to make sure you are doing the right thing and if necessary, to show a court how important it is to change the parenting time while your ex-spouse is recovering. Although this is not an exclusive list, the following factors may be helpful to consider:
The bottom line, you are still entitled to see your children and your ex-spouse needs to follow the parenting plan even if you are infected. However, that may not be something that will be best for your children. While there is no easy answer, it is important to be flexible during this stressful time and recognize how important it is to keep your child or children safe. Although you may want to spend time with your children, if you are infected it is important to think reasonably. Therefore it is necessary to try and remain understanding and reasonable with the other parent. It may also benefit your relationship with your ex-spouse and children to come up with an alternative parenting plan or think up alternative ways to co-parent while you are recovering; some ideas may include the participation in video visits or phone calls with your children. As the crisis expands it doesn’t make any sense to be hostile. As the saying goes, there is no point in rearranging the chairs on the Titanic while it sinks.
Remember, there are no right answers at this time, and courts are not quite sure how to react. If you do need help because either you or your ex-spouse has acquired the virus, talk to an attorney who can give you additional information. However, if you are unable to afford an attorney during this difficult time, you can still represent yourself. Although many courts are closed currently, hearings have continued via video court proceedings when there are emergency custody issues or a need for protection orders. Although you are no longer able to file at the clerk’s office, the courts are still accepting mail and may have additional ways to file on their websites.
Good luck and stay safe. Click here for more COVID articles.
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