Negotiating Custody Concerns During the COVID-19 Pandemic
A divorced parent interested in negotiating issues relating to COVID-19 during the pandemic should start by having a talk with their divorce attorney. The parent must make sure their attorney recognizes the concerns are valid. The parent must hear from their attorney, “I know this is not a way for you to endlessly spar with your former partner. The issues are real. I get that you are concerned about your health and the health of other people with whom you come into contact.”
A divorced parent deserves to hear the attorney state that they are willing to represent them to achieve a certain level of safety. Once the attorney and the parent are in agreement, the parent can share their ideas for COVID-19 safety with their attorney.
Open the Lines of Communication
The first step to addressing COVID-19 concerns is to open the lines of communication. The pandemic has been going on for more than a year and a half. This doesn’t mean all divorced parents have talked about their feelings, concerns, and stresses regarding COVID-19. It is a good idea for the parents to have their first or one of many sit-down talks regarding COVID-19 safety now.
If possible, they should time the talk before Halloween, Thanksgiving, and the winter holidays. The parents can do this virtually, with their attorneys present. The discussion should focus on the following topics: whether the parents are in agreement about their child getting a COVID-19 vaccine, when and how they want that to happen, ideas regarding safety for playdates with friends, concerns regarding K-12 education, visits with grandparents and other relatives, particularly with regard to the winter holidays, and thoughts on “away” activities like sports camps.
It’s All Right to Have Multiple Meetings
The parents should not expect to tackle all the issues in one meeting. They may need to hold a series of meetings to work out their terms. It is OK for parents to bring their attorneys to each and every meeting. It is fine for the parents to reserve certain big issues like questions about the winter holidays for later after they have more time to think about them. Parents should avoid raising their voices and threatening one another.
Keeping Track of What the Court Expects
The parents and their attorneys should review the Circuit Order from their local court, as well as any advisory materials available online. These documents indicate what family court judges and court staff expect from the parents. Generally, the standard by which the court determines child custody matters is whether an arrangement is in the best interests of the child. The court is looking to see whether a parent is acting in a way that will put the health and safety of minor children at risk. The court is unwilling to suspend or modify court-ordered visitation or custodial time without definitive evidence.
Generally, Follow the Court Order
The general rule should be for parents to follow the existing pre-pandemic court order regarding custody arrangements. It is likely that the court will be fine with parents jointly agreeing to temporarily exercise parenting time differently than what has been ordered if the joint agreement makes sense to guard against transmission of COVID-19. The parents should disclose changes to the court as soon as possible. It is a good idea to informally commit to the changes in writing so the terms of agreement are clear.
COVID-19 Safety Guidelines
Typically, a local court’s guidance will state that parents are expected to abide by the most restrictive CDC, federal, state, and local guidelines related to social distancing and personal hygiene. When a parent is not abiding by the guidelines, the other parent should write down the date and details regarding non-compliance. As to recording conversations, Alabama is a “one-party” consent state.
If a party, like a parent, is participating in a conversation, that parent has a right to record the conversation. This is true even if the other person in the conversation does not give consent. It is OK for a parent to record a conversation with the other parent. It is not OK for a parent to ask the child to record conversations between the child and the other parent. The court will see this as manipulative and disingenuous.
When a Child Gets COVID-19
When a child contracts COVID-19, the parents should remember that caring for the child is of primary importance. The parents should talk about how they can cooperate to care for the child. The negotiations may include special assistance for care, food, and medical expenses. The parents should also cover how they want to use technology to allow frequent video chats and telephone calls with a parent or siblings who may not be able to be present.
Parents of a child who socializes a great deal or is active in sports that involve close contact should develop a contingency plan in the case the child contracts COVID-19. The plan should cover who will care for the child, what the other parent can do to help, what financial and physical assistance the non-caregiving parent can provide, how the child should be allowed to interact with siblings or relatives, and how the caregiving parent will test the child to make sure the child is no longer contagious.
Contempt of Court
When a court finds a parent is in contempt of court for violating a prior court order, the court will consider make-up visitation, attorney’s fees, and time in the county jail for contempt and/or modification of custody. A parent should talk to their attorney about the court order to clarify what it states and how they can comply. Local courts have stated they want parents to be reasonable and flexible. They are still figuring out what this means in light of the increased transmissibility of the Delta variant of the novel coronavirus.
As a general rule, co-parenting effectively during the COVID-19 pandemic requires patience, self-restraint, and the ability to work through difficult problems. When parents are under stress, they can reach out independently or through their attorneys to court staff and the Alabama Department of Human Resources. The court and the state can provide guidance and support to parents who want their family to remain safe and healthy.
Attorney Steven A. Harris regularly blogs in the areas of family law, bankruptcy, and real estate closings on this website. He is always available in any of the firm’s offices or by phone anytime for a consultation. Mr. Harris tries to provide informative information to the public in easily digestible formats. Hopefully you enjoyed this article and feel free to supply any feedback. We appreciate our readers and love to hear from you!