On March 20, New York Governor Andrew Cuomo issued a “stay-at-home” order which directed that 100% of all non-essential employees work from home. However, this order did not address the possible effects on child custody and visitation. The order advised sick people to not leave their houses unless they need to go to the doctor or the hospital, and advised young people to practice social distancing in an effort to prevent contact with the most vulnerable in society.
In one of the most highly unlikely situations to ever occur in the world, divorced parents are tasked with answering a difficult question, what should parents do with parenting time during the COVID-19 outbreak? One thing is clear though, unless either parent or the child is diagnosed or showing symptoms of COVID-19, parenting time is presumed to continue as agreed by and between the parties or that was ordered by the courts.
Parents are faced with what to do if the non-custodial parent becomes infected, or if someone they have been in contact with becomes infected but the non-custodial parent is not showing symptoms. What if the custodial parent contracts COVID-19? Are they obligated to inform the non-custodial parent?
Unfortunately, the answer to these questions are unclear. Usually, the best interest of the child standard is the guidelines adopted by the New York Courts. Under the best interest of the child standard, the court is required to balance the ability of each parent to meet the needs of the child or children. In the event of a global pandemic, there is no standard that the court has adopted.
It is important to protect your children and to promote their safety. If the custodial parent has tested positive for COVID-19, and the child or children have not, it would be in the best interest of the parties to have the child temporarily live with the non-custodial parent, if possible. The same should apply if the non-custodial parent has COVID-19. They should choose, but are not obligated, to not exercise their parenting time for the safety of the children.
The most important step in determining whether to exercise parenting time or not, or whether to deny it or not, is to understand your court order. Court orders are legally binding and dictate the terms of your parenting time agreements. Read the terms of the court order or the parenting stipulation, as there already may be terms in it that dictate what happens if a party or the child or children are sick. If there are no terms, parents need to consider what is in the best interest of the child and what is in the best interest of society.
At a time when we are being urged to self-isolate and not go out in the public unless absolutely necessary, a deferment of parenting time seems like the best idea. This can only be achieved with the consent of both parties. A court order is a court order and is fully enforceable until it is deemed to not be, and if a party chooses to go against an order, there is a chance of serious consequences.
If possible, you may want to contact your child or children’s other parent and come up with a plan. Remember, you are looking out for the best interest of your children. Once you have established a plan, get it in writing. Contact your lawyers and have them draft an official stipulation for you so that you do not run the risk of any legal trouble. If your children’s parent does not want to cooperate, there still may be legal recourse that you can take. Remember, if both parents and the child are COVID-19 free, then absent other factors which would cause an increased exposure to the virus, the agreed upon parenting time should be continued until you get your matter heard in court.
The Family Court is still open to hear emergency custody issues. If a parent has shown signs of COVID-19, has been tested positive or works in a high-risk environment (such as a hospital), this may qualify as an emergency court conference. The best piece of advice is to contact your lawyer to see how you should proceed.
If you’re having issues related to parenting time and visitation, you should seek out an experienced divorce and family law attorney to protect you and your family. The divorce and family law attorneys at the Marnell Law Group have the knowledge and experience you need to guide you through all aspects of the divorce and family law proceedings including, but not limited to, issues of equitable distribution, child custody, child support, spousal support, orders of protection, abuse and neglect, CPS matters, and pre-nuptial agreements. Give us a call at (516) 542-9000 or send us a message on our contact page, and we’ll work with you through your divorce and family law matters.