By Evan Weinstein

Parents and children alike are struggling to come to terms with “the new normal” since COVID-19 cast a very dark shadow on our lives. For divorced or separated parents, meeting custody demands while also fulfilling social distancing requirements can be a challenge and the source of additional stress. This post examines how to manage co-parenting agreements while also protecting yourself and your children from additional exposure to the virus.

Existing Co-Parenting Agreements Probably Don’t Address Many New Situations in the Pandemic

The pandemic has caused new situations to arise in existing co-parenting agreements, and in general, the courts have taken the position of enforcing the pre-existing co-parenting plan unless the pandemic has caused a substantial change in the ability of a parent to care for the children.

What worked pre-pandemic may not be working as well now. For example, sending your children to your former spouse’s home during the pandemic may be nerve wracking because of concerns that you are further exposing them to the virus. It is rational to wonder whether your ex is following the social distancing guidelines as carefully as you are. And, if your ex has a significant other, you may be concerned about that person’s exposure and whether proper precautions are being followed. It is the court’s expectation that each parent will follow the governor’s orders about social distancing and take precautions as recommended by the Centers for Disease Control (CDC).

Likewise, issues regarding education and activities pre-pandemic may have been settled and unproblematic, but now, with parents attempting to work from home full time, you may question the quality of the at-home education or recreation that your child is receiving. Is your ex overseeing the child’s educational requirements, such as helping with summer homework, or ensuring that log ins to virtual classrooms and camps are working?

It is advisable that, because these are challenging times, parents try to negotiate and discuss these new issues without involving the courts. For example:

• Try to be flexible with your former spouse if they need to shift their days a bit to accommodate a new work from home schedule.
• If your vacation with the kids was canceled due to the pandemic, consider offering your former spouse time with the kids during the time that you would have been away.
• Recognize your children’s need to see both parents, especially during this time of uncertainty.
• Help your children connect to your ex through the use of technology.
• As summer day camps open within the state’s guidelines, openly communicate with your former spouse to determine whether to send your children.
• Remember that what is most important is the health and wellbeing of your children.

Getting the Court Involved to Resolve New Issues

In New Jersey, the shelter-in-place orders were lifted, but we are seeing other states return to these orders because the pandemic numbers began to rise again. It is important to know that possession of and access to a child is not affected by any shelter-in-place order or other order restricting movement that states and municipalities have issued. If a custody arrangement is violated, there will be legal challenges and courts will favor the existing agreement.

Are there exceptions?

The courts have, however, been asked to consider the exposure that a child may have if one parent is an essential worker, or in healthcare as a first responder. The court has been mixed on this. Most are ruling that existing custody agreements must stay in place. Some parents are able to negotiate agreements to keep the children with the non-essential working parent for the duration of the crisis. While it is not ideal for the parent or the children to be separated, parents must do what is in the best interest of their children. For example, the essential worker parent may pledge to use full personal protection equipment and follow a hygiene plan of showering and washing clothes to minimize any contamination.

During shelter-in-place orders, visiting extended family was not recommended. Even now, with New Jersey’s mandates about crowds changing, it may be tempting to take your children to visit friends and relatives, but it is the expectation of the court that you will abide by all CDC, federal and state recommendations. As New Jersey businesses open up and people begin branching out socially, parents must still follow guidelines to limit the number of people at any gathering, maintain social distance, wear masks, and keep visits outside.

What if the disagreements cannot be resolved?

If you simply cannot co-parent with your existing parent agreement through the pandemic, and feel a modification is necessary, a motion for an emergent application may be worth considering.

In the end and before going back to court, remember that you have to assess your legal obligation to abide by the co-parenting agreement against the risk of exposure to COVID-19 and also the need for your children to have in-person visits with their other parent.