COVID-19 Update: How we are serving and protecting our clients.

Visitation, Parenting Time and Child Custody Issues During COVID-19

Selfie-Mother-300x200At the time of writing this blog, the New York Courts are still only willing to accept new cases that it deems essential to help reduce interactions in the times of the COVID-19 coronavirus. This means that many issues have been put on hold for the time being.

In cases of child custody or divorce, it’s common to feel as though all of your issues are essential. However, the court may not be willing to hear them unless they can see a reason for the case being an “emergency”. One thing that is generally not dealt with, at this time during the coronavirus pandemic, as an emergency is child custody and parenting cases. However, there’s always a chance that a court could choose to accept any particular case as an emergency or essential when considering an application.

Recently, I’ve received a number of calls from parents looking to limit parenting time or that are concerned that they are not getting their parenting time because of COVID-19. The starting point in this situation is to remember that if an order already exists for custody and parenting time for a parent, then the starting point for any analysis is that order. There should be a presumption that this order is the proper custody and parenting time that should happen. However, if there are health concerns posed by the pandemic, for example, there might be exceptions.

Addressing Parenting Time In Difficult Circumstances

Since the New York courts are not, for the most part, currently dealing with covid custody and parenting time cases, it is not clear how these issues will be sorted out by the courts here once they open back up to custody and parenting time cases. Therefore, I am thankful to this legal professional group I belong to for forwarding a court decision to its members from a Canadian court on the topic which appears to be well thought out. In the case of Ribeiro vs Wright, the Ontario Superior Court of Justice made a ruling about parenting and custody affected by the context of COVID-19. The mother and father in the case had joint custody of the child, with the mother maintaining primary residence and the child receiving access on alternating weekends. However, the mother asked to suspend the father’s access because she was concerned that the father was not abiding by social distancing guidelines. The mother didn’t want the child to leave the home for any reason during this dangerous time.

The matter was referred to a Triage Judge for determination, and electronic material was filed through the courthouse email to help reduce the number of face-to-face meetings. The Triage judge did not consider the matter as an urgent issue, stating that although the wellbeing of families is a crucial consideration of the court, every matter needs to be assessed individually. In this particular case, an order was already available to guide parenting time decisions based on what the court considered to be in the child’s best interests. The Triage judge also noted that there was plenty of information available about how to protect the health of individuals and families at this time.

The Triage judge noted that although many parents are worried about what to do at this time, people have to work together for the common good. Children’s lives and their important relationships with family members cannot be simply put on hold indefinitely according to the opinion of the court. The Triage judge pointed out that in most situations, the courts will agree that parenting arrangements and schedules must consider protecting the crucial relationships between a child and both of their parents during this difficult time.

The Triage judge also noted that in some cases, the lifestyle of a parent, or their behavior when it comes to issues like COVID-19 might raise concerns about the parenting time judgement that are sufficient enough to reconsider parent-child contact. There should not be no tolerance for any parent exposing a child recklessly to dangerous risks. However, transitional arrangements can create their own issues. The court recognizes that every family has its own complications to think about, and for the sake of the child, important relationships must be maintained, although it’s crucial to find a way to maintain those relationships safely.

Handling the Complexity of Parenting Time

Although different court environments have their own rules, and the guidelines used in Canada may not be the same as the ones used here, the case above can shed some light on our current situation. I, and the members of the legal professional group I belong to, for the most part seem to be that this was a well thought out decision. Many government and social situations are struggling with the COVID-19 issue, and this includes various concerns with the court system.

The courts will often prioritize cases that involve children but ask lawyers and parents to be practical when taking their concerns to court. If parents have concerns that the COVID-19 issue creates an urgent problem with a parenting arrangement, they can try to initiate an emergency motion, but they shouldn’t expect that the existence of the crisis will suddenly result in the suspension of parenting time. The courts must deal with parenting issues on a case-by—case basis, even in the time of issues like COVID-19. In even emergency motions, parents will need to provide specific evidence that highlights the issues that the other parent is presenting in relation to COVID-19.

The parent responding to emergency cases will need to provide any relevant evidence about the safety measures that they are taking too. Additionally, both parents will often be asked to provide realistic and specific time-sharing proposals which address the needs of the child during COVID-19 considerations. Judges will still take notice that social distancing is critical at this time and may ask that both parents spend more time with their child at home.

The Triage judge in the Canadian court case said that in scary and disruptive times, children need all of the adults in their lives to behave in a cooperative and mature way. Vulnerable children need to see that everything will be okay, and families need to cooperate. Both parents in the case above were urged to renew their efforts to address the vital health and safety issues of their child in a matter deemed productive and cautious.

A New York Judge that submitted an article in the New York Law Journal on the topic pointed out that parents will be judged by the actions they take during this crisis. If there is a situation where one parent should not, for the moment, get their parenting time because they should be in quarantine for example, what steps were taken? Did the other parent make sure that contact was maintained with the parent and child through the phone or video contact? Is makeup time being scheduled? These are among the issues that are coming up.

If you would like to discuss your parenting time concerns with me, Mr. Darren Shapiro, you can contact the office over the phone or fill in our contact form. I am doing consultations over the phone. Up to the first half hour of initial consultations are free.

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