By Margaret Brost, J.D., MEd.
Your first priority is to keep your children (and you and rest of your family) safe. There is no “official” guidance regarding strictly following (or not) existing parenting plans. The Governor’s office has clarified that the Stay Home Stay Safe order does NOT change the terms of existing parenting plans.
Mike Faulk, a spokesperson for Inslee, said the governor’s order should not impact parenting plans at all. Parents should continue to drop off and pick up their children as usual. “People are allowed to leave their homes but are encouraged to limit travel,” he said. Any disputes between parents over legally-binding parenting agreements should be handled in the usual way, in accordance with existing state laws.
Generally speaking, violations of Parenting Plans (like all court orders) are considered under the rules for contempt (violations have to be “willful” for a contempt finding to be made). Willful means without legitimate reason. As an attorney, I am ethically obligated to tell you that you must follow court orders.
However, I also have an obligation to use common sense along with my professional experience in the service of advocating for my clients and their children. There may be a legitimate reason to change a parenting schedule regardless of whether there is a pandemic or not.
The problem we all have is that 1) there is no official guidance that tells us what circumstances constitute a legitimate reason for one parent to withhold parenting time from the other; and 2) currently most courts are very limited in their abilities to hear disputes between parents. I know of at least one jurisdiction where the court has been very clear that they will not hear parenting plan squabbles. If you decide to not allow for a transfer of the children to the other parent, and that parent brings a contempt motion (which they have a right to do) the court might not hear that motion anytime soon. However, this does not mean that the motion cannot and will not be addressed in the future.
What will happen when the court’s re-open for motions of this kind, is not clear. The court’s will decide each case on the unique facts, but we also believe that each judicial officer will have some “frame” for deciding whether the violation of the terms of the parenting plan was unreasonable. That will obviously vary by jurisdiction and by individual judicial officer. However, in all cases, if the court finds contempt, it will then impose some sanctions including attorney fees and likely make up time.
What follows is our very best advice.
- You must really consider why you are not going to allow this visitation and about your well-founded fear. How much is concern for the physical health of your children and family and how much is your emotional baggage with the other parent? You are going to need that clarity in both the next several steps as well as if you end up in court.
- Communicate with the other parent. Be straightforward, compassionate, patient, and respectful. Remember that so long as parents agree to make adjustments to their parenting plans, consistent with their children’s best interests, no court will interfere in those adjustments. It is only when there is a violation of the terms of the parenting plan AND one of the parents does not agree, that the trouble begins.
- Do your very best to reach an agreement that serves the best interest of your children. If you are not able to reach an agreement and a contempt motion is filed, the court will expect you to have made a good faith effort to first reach an agreement and then to have done everything in your power to maintain the children’s contact with the excluded parent. You must also be able to demonstrate that you made this effort to the court.
- If you are unable to reach an agreement, enlist the help of a professional: Your attorney, a parenting coach, family therapist, or mediator are all good choices. You are always welcome to call us. We will help you think through your options and help you mitigate any fall-out from what will likely be very difficult choices.
Also below is a set of guidelines one jurisdiction has provided. We hope you will find it and our advice helpful. Please let us know if you have specific questions or concerns. We are available to you and want to help make your decision-making process as effective as possible.
SEVEN GUIDELINES FOR PARENTS WHO ARE DIVORCED/SEPARATED AND SHARING CUSTODY OF CHILDREN DURING THE COVID19 PANDEMIC
From the leaders of groups that deal with families in crisis:
Susan Myres, President of American Academy of Matrimonial Lawyers (AAML); Dr. Matt Sullivan, President of Association of Family and Conciliation Courts (AFCC); Annette Burns, AAML and Former President of AFCC; Yasmine Mehmet, AAML; Kim Bonuomo, AAML; Nancy Kellman, AAML; Dr. Leslie Drozd, AFCC; Dr. Robin Deutsch, AFCC; Jill Peña, Executive Director of AAML; Peter Salem, Executive Director of AFCC
- BE HEALTHY. Comply with all CDC and local and state guidelines and model good behavior for your children with intensive hand washing, wiping down surfaces and other objects that are frequently touched, and maintaining social distancing. This also means BE INFORMED. Stay in touch with the most reliable media sources and avoid the rumor mill on social media.
- BE MINDFUL. Be honest about the seriousness of the pandemic but maintain a calm attitude and convey to your children your belief that everything will return to normal in time. Avoid making careless comments in front of the children and exposing them to endless media coverage intended for adults. Don’t leave the news on 24/7, for instance. But, at the same time, encourage your children to ask questions and express their concerns and answer them truthfully at a level that is age-appropriate.
- BE COMPLIANT with court orders and custody agreements. As much as possible, try to avoid reinventing the wheel despite the unusual circumstances. The custody agreement or court order exists to prevent endless haggling over the details of timesharing. In some jurisdictions there are even standing orders mandating that, if schools are closed, custody agreements should remain in force as though school were still in session.
- BE CREATIVE. At the same time, it would be foolish to expect that nothing will change when people are being advised not to fly and vacation attractions such as amusement parks, museums and entertainment venues are closing all over the US and the world. In addition, some parents will have to work extra hours to help deal with the crisis and other parents may be out of work or working reduced hours for a time. Plans will inevitably have to change. Encourage closeness with the parent who is not going to see the child through shared books, movies, games and FaceTime or Skype.
- BE TRANSPARENT. Provide honest information to your co-parent about any suspected or confirmed exposure to the virus, and try to agree on what steps each of you will take to protect the child from exposure. Certainly both parents should be informed at once if the child is exhibiting any possible symptoms of the virus.
- BE GENEROUS. Try to provide makeup time to the parent who missed out, if at all possible. Family law judges expect reasonable accommodations when they can be made and will take seriously concerns raised in later filings about parents who are inflexible in highly unusual circumstances.
- BE UNDERSTANDING. There is no doubt that the pandemic will pose an economic hardship and lead to lost earnings for many, many parents, both those who are paying child support and those who are receiving child support. The parent who is paying should try to provide something, even if it can’t be the full amount. The parent who is receiving payments should try to be accommodating under these challenging and temporary circumstances. Adversity can become an opportunity for parents to come together and focus on what is best for the child. For many children, the strange days of the pandemic will leave vivid memories. It’s important for every child to know and remember that both parents did everything they could to explain what was happening and to keep their child safe.