Jul 2020

Custody Disputes in a Pandemic

Custody is one of the more difficult issues affecting divorcing parents and those who are trying to navigate co-parenting after a divorce. The COVID-19 pandemic has magnified that difficulty. Parents are well advised to retain an attorney to sort through the complicated considerations, some of which are discussed herein.

Custody cases are decided based on the “Best Interests of the Child Standard.” The pandemic has not changed that fact.

Initially, a parent should be able to demonstrate that they have not been infected by COVID-19. If they have been infected by COVID-19, the parent should demonstrate that they followed the recommended 14-day quarantine afterward. Moreover, the parent should consider taking an antibody test to demonstrate possible immunity moving forward. In the event of no infection, the parent should demonstrate that they have followed recommended social distancing and masking practices. If necessary, parents should consider modifying their work in accordance with these practices.

It is important for the parent to understand that their subjective opinion regarding how authorities and the public are managing the pandemic is entirely irrelevant. The applicable standard is the best interests of the child, as the judge sees it. A judge is likely to use whatever objective standards exist, such as CDC or Department of Health guidelines, to determine what is appropriate in each circumstance. Parents should avoid deviating from such objective standards in their own conduct but also in the expectations they seek to impose on the other parent. A zealous parent seeking to impose stricter practices on the other parent than those recommended by authorities, may be viewed as acting in bad faith. In short, a parent should set aside their opinion to avoid any negative inferences that may be drawn against them.

The parent should also be prepared to demonstrate that they can provide for the child’s emotional and psychological needs. Importantly, the parent should appear to the child to be working with the other parent as much as possible and to avoid any sense that the pandemic is just another opportunity for the parents to disagree. Parents should discuss whether the child requires therapy or other interventions to help the them cope with the pandemic. Most judges will err in favor of ordering therapy, so a parent will likely benefit from aligning themselves with that position. An objective view of the child’s needs should remain the focus. An attorney can help the parent distinguish between what they want for their child and what the child objectively needs. This is often impossible for the parent to discern in an emotionally-charged environment without the assistance of their attorney.

Parents should also consider setting up a home-based classroom for the child by providing all the necessary support for the child to thrive in a remote learning environment. It seems unlikely that schools will simply reopen and return to a pre-pandemic posture. Rather, schools are likely to continue some forms of remote learning for periods of time. Where possible, a parent should set up a home classroom area to include a desk, computer, and other technology supports necessary for home learning. Additionally, parents should insure they have sufficient skills with e-mail and remote conferencing so that effective communications can be had with teachers. Where a parent does not have such skills, they should pay others to teach them and set up the equipment. No judge will award substantial custody to a parent whose home does not facilitate home-based learning.

These are unprecedented times. Navigating custody in a pandemic is a challenge. But it also an opportunity. There are tangible steps that can be taken to strengthen your case. There is also an opportunity to forge co-parenting skills that can be pay dividends moving forward. It is best to have an attorney help navigate these uncharted waters.