- Marilyn Chinitz is a matrimonial and family law attorney, and has been practicing law for more than 35 years.
- As an experienced negotiator, Chinitz has dealt with complex divorces and custody battles, and knows the toll these proceedings can take on children caught in the middle.
- With the global outbreak of the coronavirus, parents who share custody and may even live in different countries are being faced with tough decisions as to how best ensure the well-being of their children.
- Chinitz explains how courts will approach custody battles differently due to COVID-19, and how parents can best advocate for their child’s safety.
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As parents, we want to do everything we can to protect our children from pain, unhappiness, bad experiences, and from rejection, hurt feelings, and disappointments. Now there is something new that we must protect them from: The risk of getting sick or infecting others with the coronavirus while their parents are in divorce litigation, fighting over their custody, visitation, and access rights.
Seven million residents of the Bay Area in California have been ordered to “shelter in place.” New York Mayor Bill de Blasio is warning New Yorkers to prepare for such an order as well. News reports advise to stay at home if possible, but many parents are facing an added complication. During a divorce and certainly afterward, children commonly shuttle back and forth between each parent’s household based upon a court-ordered visitation or parenting schedule. What happens if one parent or their household becomes infected with the coronavirus? What happens when a parent or a household member lives in a community with an outbreak or has been exposed to an infected person but shows no signs of being infected?
Though life as we know it is sharply off-kilter, we need to use common sense and evaluate our true motivations. Local and national authorities advise us to avoid public transportation when possible, limit non-essential travel, skip play dates and social gatherings, and avoid close contact with people. But what about a child’s time with their non-custodial parent?
How will a court handle a parent’s refusal to turn over a child to the other parent in such circumstances? How certain must a threat of infection be to justify a parent’s refusal to comply with court-ordered access time?
Failing to comply with court-ordered parenting time poses a risk of contempt for parents. Weighing that risk against the potential life and death consequences of contracting and sharing coronavirus is something that the court is now grappling with, and it weighs heavily on the minds of parents of who want to spend time with their children in the face of a threat of transmission to the child.
Clearly, if a parent is infected with the coronavirus, a court will not insist that that parent have access to the child during this time. It is only common sense. The more attenuated the concern that a child can contract coronavirus, however, the more difficult it is to justify withholding access to that parent. For example, if the child’s neighbour has a family member who has come down with the virus, but the child has had no contact with anyone in the neighbour’s household, is it defensible to insist that he/she not travel to the other parent’s home? Rest assured that actions taken now during this volatile time can be subject to subsequent review by the court.
Courts will review carefully a parent’s motivation in limiting access between the other parent and child. If you are truly concerned that there is a serious risk of infection to your child posed by the parenting access schedule, and you have persuasive evidence that parenting time would create risk of transmission, it is incumbent on you to bring those concerns to the attention of a judge who will immediately evaluate the situation.
What about increasingly common international custody arrangements? If a non-custodial parent resides in Europe or Asia, the courts will support the custodial parent’s opposition to sending the child on a plane to a country that has a COVID-19 outbreak, as they will undoubtedly seek to minimise the risk of exposure to the virus to the child and others. If a parent misses court-ordered access because of the coronavirus pandemic, the non-custodial parent will be able to make up such access time to the extent possible by either having an extended vacation in the future or extended summer plans provided, of course, that the environment is safe.
One would hope that two parents who love the same child would agree to take reasonable steps to ensure that a child is not unnecessarily exposed to infected individuals. Unfortunately, such is not always the case.
No one would disagree that the coronavirus is having a significant impact on children, parents, communities, local businesses, and the global economy. The reality is that the disruptive effect of coronavirus may mean that you will not be able to visit with your child if you live in an area that is infected.
Skype, FaceTime and other forms of communication are key to heading off unnecessary conflict during what is already an incredibly stressful time for everyone, especially children. Their daily routines have already been upset by mandatory school closures in many areas, with no end date in sight. Especially now, both parents need to be on the same page. They need to discuss how to respond if a child becomes ill; they need to make sure that they are taking all measures to protect their children. Courts will not deviate in their evaluation of what is in the best interest of the child. Neither should the parents.
Marilyn Chinitz is a formidable advocate for her clients, guiding them through some of the most challenging transitions in their lives. A Partner at Blank Rome, Marilyn is a skillful negotiator whose numerous high-profile and celebrity cases have received national and international attention. Marilyn concentrates her practice in matrimonial and family law, particularly high-net-worth divorce actions. She has more than 35 years of experience in every facet of family law, including: complex divorce actions involving diverse transactional matters, high-conflict custody cases, international custody cases including the return of abducted children in proceedings filed under the Hague Convention, premarital agreements and postnuptial agreements, same-sex divorce/dissolution matters and paternity cases.
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