“Ask Three Mentors” is a question-and-answer column, produced exclusively for Insights, that highlights the fact that members of AFCC are attorneys, judges, and mental health professionals.  Many of our most experienced members are committed to mentoring and passing on the wealth of knowledge they’ve acquired through years of work in the field of family law.  Each month we will pose a custody-related question to three members of our panel of exceptionally experienced and widely respected family law experts.  Our readers will then have the benefit of hearing the answer from the perspective of a judge, a mental health professional, and a family law attorney.  Please submit your questions for our Mentors here.  For biographies of our Three Mentors panel members, go to this page.

We posed this question to our Mentors:

How can judges, parties, and attorneys strike the best balance between the child’s and parent’s right and need to see one another, and keeping kids and co-parents safe when the second parent is on the front lines?

Commissioner Glenn P. Oleon, Retired

Since the COVID-19 crisis began in earnest, all Judicial Officers have been flooded with requests to modify or enforce parenting timeshare orders, frequently presented on an ex parte emergency basis.  While most if not all of these requests are well intentioned, they frequently seem to be motivated more by the personal interests of the parent than by the best interests of the children.

As is true for doctors, the fundamental principle guiding judges should be:  “First, do no harm.”  Even if at first blush the circumstances seem urgent and appear to require instant action, it is critical that we maintain our objectivity and take no significant action until we have had a chance to hear both sides of the story.

Although many parents, especially when under stress as at present, tend to question the motives and competence of the other parent, my experience has been that the vast majority of parents will try to do what is best for their children almost all of the time.  Most custody orders we see these days grant joint legal custody to both parents; we should tread very carefully before making orders that assume that one parent’s judgment should overrule the other’s.

The default position when confronted by parental conflict in a crisis situation should be to maintain and enforce the existing orders to the extent possible.  That means keeping in place the same timeshare and parenting plans and decision-making regimens as existed before we ever heard of COVID-19.  Of course the judge needs to be flexible; if a parent (or someone in the parents’ home) is ill, it might be appropriate for the children to stay temporarily in the care of the other parent, and visitation by video conference (FaceTime, Messenger, Zoom and the like) may have to take the place of face to face visits.  But the children had two parents who loved and cared for them before the advent of the current emergency; that should remain the status quo as much as possible given our new reality.

Many Courts have issued guidelines for handling custody issues in the COVID-19 world, for example the Marin County version can be found on the court website.

Stay safe and stay healthy.

Dr. Lyn Greenberg

Resolving these issues often requires skills and interpersonal behaviors that parents in conflict struggle with – transparency, energetic support of the other parent-child relationship, detailed planning under stress, and creative problem solving.  The involvement of a skilled, informed, neutral professional may be essential, both to suggest possible solutions and to model for the parents methods of calmly identifying questions, seeking the appropriate information, and then using that information to arrive at the best solution for the child.  General guidance from the court is invaluable in framing proposals and helping parents to choose their courses of action wisely.

Front-line professionals face different levels of risk, depending on the nature of their job, access to equipment, and diligence in following protocols to reduce the spread of infection.  Many hospital-based employees already have detailed procedures for changing clothing, washing themselves, and cleaning anything they may have touched before coming into contact with their children or families.  Of course, it may be severely distressing to children to lose contact with a parent, particularly in time of crisis.  Parents also need breaks – as many are under stress due to isolation, the requirements of social distancing, and school closures.

Be specific about the anticipated risks and how a parent’s desire or proposal would help.  Front line professionals should provide detailed information about the safety precautions they are taking; additional steps, such as taking one’s temperature before parenting time begins, may also be reassuring.  Those parents are also entitled to ask questions about precautions being taken in the other home, and to propose options that protect family safety without a wholesale destruction of the parenting plan. It’s useful to observe each parent’s reaction to the idea that the loss of the other parent would be devastating to the child, and that neither parent would want to harm their child.

The tactics parents use in raising these questions may impact the child and the coparenting relationship long after the Covid-19 crisis is over, and it’s helpful if judicial officers pay attention to them.  Were issues raised thoughtfully?  Did the “front line” parent have a chance to provide information or scientific expertise regarding the actual level of risk?  What alternatives were explored?

There will, of course, be situations in which the medical risks cannot be managed effectively without a temporary adjustment in the parenting plan.  It’s helpful to obtain neutral, professional information and advice rather than acting on assumptions, and to strive to normalize the child’s experience as quickly as possible.  These issues are more likely to be resolved amicably if coparents undertake energetic efforts to “make up” for lost time and to actively support the other parent-child relationship.  For example, if the parent works for several days and has several consecutive days off, parents could decide to increase that parent’s time during the period when he or she is not working, rather than in between consecutive shifts.  In situations where adjustments are necessary, it is incumbent on the parent who has more time with the child to actively support the other parent.  A vague agreement for “web visits” isn’t enough – those contacts must occur in a supportive atmosphere and with enjoyable activities, such as an online game that the parent and child can play together.  Two-person educational games are also available so that the coparent can be involved with school planning.

How this situation is presented to the child will also be critical, and professionals can coach parents as to what to say and do.  “Mommy has to change her time to next week because she is helping people” is far different from “Clearly, Mommy loves her job more than she loves you.”  “Daddy and I are trying to keep you safe” is different from “Daddy is punishing me for being a doctor.”  Although it may be difficult in a conflicted relationship, coparents can learn much from the approach taken by military families in supporting the role of the absent loved one.  Help the child upload a drawing or play a computer game with the absent parent.  Arrange to surprise the parent with a favorite meal, delivered from a restaurant.  Parents on the front line should do all they can to keep consistent schedules, reassure the child about their safety, make specific plans to “make up for” lost time, and acknowledge how hard the other parent is working.

Going forward, the expectation of accountability may be critical.  It’s helpful if judges set the expectation that they will not disrupt a parent-child relationship unless it’s absolutely necessary, and that future decisions may be influenced by how the parents conducted themselves during this emergency.  Parents who attempt to exploit this emergency for personal gain should be held accountable.  Parents who can rise to the occasion and support the child may create long-lasting improvements in the coparenting relationship and greatly reduce stress on their children.

Attorney Mike Kretzmer

Talk about being caught between a rock and hard place, this question defies any simple answer.  The “default” position being taken by many courts in California, throughout the U.S. and in courts abroad is that COVID-19 should not impact current custodial arrangements and orders.  Should that change where one of the parents is involved in providing direct services on the front lines as a physician, nurse, EMS technician, paramedic, police officer or other first responder?  Arguably, no.  There are many intact families in which one or both parents are among the categories of first responders.  In some of these families, both parents remain in the home each taking extraordinary precautions to avoid bringing the virus home with them at the end of their work shift.  In some of these families hard decisions have been made that a parent will stay away from the family home by housing themselves in a hotel or other accommodations until the “threat” of infection has been substantially reduced or eliminated.  What is certain is that no matter what decision is made about contact during this unthinkable crisis, everyone involved remains fearful of the threat that they cannot see.

The situation is not — nor should it be — different for families that are fractured by separation or divorce.  The same presumptions and analysis that apply in the case of intact (i.e., non-separated, divorcing or post-judgment) families should apply.  The needs of children to see and interact with their parents should not and do not change because of the existence of COVID-19.  Perhaps the most difficult thing for our clients who co-parent, all experiencing the heightened emotions of a family break-up, is to keep front and center the needs of their children and to set aside the idea that the other parent (in this case a first responder parent) somehow now poses a greater risk to the child and that only the parent who is not a first responder can adequately ensure the protection of the child or children.

There is no “cookie-cutter” answer to the question posed.  As with every case, we need to take into consideration the facts and circumstances of individual cases in determining the capabilities of each parent to provide appropriate and safe care for the child.  We start from a presumption that each parent is capable of and will take all reasonably necessary precautions to minimize or eliminate any risk of exposing the children or other household members to infection with the virus.  Parents should, in the best interests of their child, make every effort to communicate directly about the actions and precautions they will jointly take to best minimize any chance of exposing the child to any risk associated with the virus.  As with many of the situations in custody disputes, communication undertaken respectfully and consistently is key.

What do we do when the fear is that one parent engages in reckless or careless behavior. e.g., the parent, whether a first responder or not, who refuses or resists compliance with “shelter in place” mandates, who takes the child to the market without necessity or without personal protective equipment (facemask, gloves, disinfectant wipes, etc.), or who exposes themselves to risky situations even without the children being present by sporadically mingling socially with other people such as a boyfriend, attending gatherings of casual acquaintances, or frequenting places where people are not observing social distancing, wearing of masks or other protective gear?  Does such activity provide a basis for court intervention?  The answer is . . . perhaps.  Ultimately this will depend on the bench officer and how strong a case can be made that the parent is careless, reckless and will likely continue to engage in such behavior.  This is frequently a tall mountain to climb.  A few courts I am aware of have made significant changes in custody orders based upon such behavior, but most have not.

The bottom line is that (1) the perceived threat of exposure to the COVID -19 virus is not typically a basis, by itself, for modification of existing custody orders and arrangements; (2)  in the absence of clearly reckless or grossly careless behaviors, parents are entitled to the presumption that they will act appropriately in ensuring their child is protected from exposure to COVID-19; and (3) the best way to achieve the balance that serves the best interests of the child is for parents to respectfully and consistently communicate with one another.