We are in the midst of a serious crisis. The COVID-19 pandemic has impacted all of us with orders to stay at home, self-isolate and social distance and presents a number of unique challenges for family law practitioners. Unfortunately, some parties are taking that only too literally, weaponizing the current pandemic and social distancing guidelines to restrict the other party’s parenting time and ability to see his or her children. This has become a real problem among first responders or other “high risk”
individuals who are continuing to work and risk exposure to the virus. This crisis should not be seen as an opportunity to withhold or prevent parenting time between a parent and child unless there is a demonstrable risk to a child. The American Academy of Matrimonial Lawyers (AAML) and the Association of Family and Conciliation Courts (AFCC) attempted to get ahead of this issue, and issued guidelines on March 17, 2020 regarding parenting time in the midst of our current “social distancing” which can be found here https://aamlnj.org/njresources
These are difficult situations, and every case has its own unique circumstances which must be considered. The consideration changes if, for example, you live with individuals older than 65 or someone who has respiratory issues – in other words, if you risk exposing not only your child to the virus, but an at-risk individual who has a higher mortality rate because of their pre-existing conditions. Generally, however, the first thing all parents must be aware of is that they really have only three options: (1) they can work something out amongst themselves, taking into account the best interests of the child; (2) they can hope that a judge will see things their way and apply to change or limit parenting time when necessary; or (3) they have to follow the Court Order currently in place. What is not an option, however, is to knowingly violate any court order in place and unilaterally change parenting time – courts have never looked kindly on self-help.
The one way to ensure everyone is safe, healthy and happy is to work things out amongst yourselves, with mediators, parenting coordinators, attorneys, pediatricians or other members of the community, as necessary. In doing so, you can craft a plan that works best for you and your children, as opposed to hoping someone else will make the right decision for you based on what information they have had thrust before them. Parents can always modify parenting plans amongst themselves in order to ensure minimal transfers. If, for example, you have “50/50” custody requiring multiple back-and-forths per week, you could instead switch to a “week on/week off” plan temporarily if that works for you. Such a temporary plan would allow for fewer transfers and, therefore, less risk of exposure. If someone does become positive for COVID-19, you should work to ensure liberal access to the children via all of the video conferencing applications available today, as well as provide make-up parenting time once that individual is all clear. It is important to remember that central to any discussion should be what is best for the children – and that may not always be the same in each case. What matters is what works for your children and family.
When it comes to individuals who are still working and potentially risking exposure to COVID-19, you only need to peruse local Facebook groups to find a myriad of opinions of what should be done, ranging from “keep the kids home” to “follow the court orders.” What’s important to remember is that as recently as March 30th, the government has said that social distancing guidelines will continue to be in place for a month and that the “peak” of cases could be weeks away. Simply cutting off contact with one parent for a month or more is not acceptable if based solely upon a parent’s employment responsibilities.
Think of it this way: what if you were still living together? Would you think it reasonable to suddenly stop having contact with the children? What about a decision to move out and self-isolate? In most cases, the answer is probably no, although there are some families who have done this or sent their children to live with relatives. Parents still living together would work cooperatively and take appropriate steps to minimize the risk of exposure; such steps might include completely disrobing in the garage and bagging clothes to go into the wash and then taking a towel and going right into a hot shower as recommended by some. Just because you’re divorced or living separately, the children should still be able to see both parents as long as there isn’t an emergent and clearly identifiable risk.
Of course, on the other side of this, it is important that both parents remain as healthy and mindful as possible. Wherever possible, practice social distancing. Children should not be exposed to two sets of rules – one parent allowing friends over, treating this as an extended summer vacation, and the other practicing strict social distancing with no friends and a strict school-like schedule. This will only confuse the children, and the parent not practicing social distancing (in spite of all the guidelines) will not find themselves in front of a very happy judge if it comes to that.
Parties also should remember that the other parent is not being “irresponsible” if they are continuing to visit with their new romantic partner, or exposing the kids to that partner. In fact, Governor Murphy’s Executive Order specifically allows visitation with “family or other individuals with whom the resident has a close personal relationship, such as those for whom the individual is a caretaker, or romantic partner. This also means that you are allowed to travel for purposes of picking up/dropping off
children and would not be violating the Governor’s Order since this is a legitimate purpose.
Again, the most important consideration is what is in the best interests of the child. How do parents work together to ensure this? The answer will be different for each family, as each family has unique circumstances that require additional consideration. Co-parenting is of the utmost importance to the courts and decisions should be made by both parents to ensure uniformity and access.
Another unwanted side effect of this pandemic is victims of domestic violence finding themselves quarantined with their abusers. If you are a victim of domestic violence, it is
important to remember there is help out there for you, even now:
- Your first line of defense is your local police department. The police are still working to ensure you are safe and if someone commits an act of domestic violence against you, you should call 9- 1-1 or go to your police station. (The County courts are closed to the public at the moment and are not taking complaints for a temporary restraining order.) Complaints for a Temporary Restraining Order are being taken and processed at the police stations with municipal court judges. Remember that many police departments have specific policies for domestic violence cases, including removing an abuser from the home if there are signs of physical abuse. The police can also put you in touch with a member of their Crisis Response Team to connect youwith resources and help you in applying for a temporary restraining order.
- Remember that as part of a temporary restraining order, you can ask a judge to grant you a number of things, including temporary possession of the house, temporary custody of minor children, temporary possession of your car, and/or emergent monetary relief so that you have money to pay bills and buy groceries and other necessities. Thus, no victim should be afraid that by filing for a TRO, they risk being homeless, penniless, or leaving their kids with an abuser.
- The courts may be physically closed, but they are still working virtually. If the court closure does not allow your matter to proceed to a final hearing, your temporary restraining order will remain in effect for the foreseeable future.
- The courts are trying to find ways to have virtual final hearings to grant or deny Final Restraining Orders and move these matters forward. They are trying to address amendments to Temporary Restraining Order, voluntary dismissals by the victim and other issues such as support, parenting time and access to the home by the accused in order to obtain personal items if not addressed in the initial Temporary Restraining Order. In Morris County, at least, they are now taking amendments via email. Anyone seeking to amend a temporary restraining order should email the request to firstname.lastname@example.org Be sure to include all contact information when you send the request. Then, if an amendment requires a change to predicate act or reliefs, the court will be in contact with you to schedule a teleconference with a Judge.
- If you need additional help, there are a number of other organizations working tirelessly to help you, including:
- JBWS, whose Morris County Helpline Number is (973) 267-4763. JBWS is still operating their legal advocacy services telephonically, as well as remote counseling services and an emergency shelter;
- Local police departments will give you the opportunity to speak to a crisis response team member if you call them;
- The New Jersey Coalition to End Domestic Violence, whose 24 hour helpline is (800) 572-7233 or visit https://njcedv.org/covid19/ for resources.
- The National domestic violence hotline (1-877-R.U.ABUSED; 1-877-782-2873) or visit https://thehotline.org
- If all you have is a phone text LOVEIS to 22522.
If you are afraid to pursue these avenues while in the home, remember there are still a number oflegitimate reasons to leave the house. You can still go grocery shopping, order curbside takeout at many restaurants for pick up, leave to get something at your local drug store, etc. Once you are out of the home, and the eyes of your abuser, you can make the necessary calls or go to the police station to seek assistance.
If you or someone you know has any questions regarding these issues or other family law, custody, parenting, domestic violence, municipal court, or criminal law issues, we encourage you to reach out to Daly & Associates at (973) 292-9222. We remain fully available to help you and your family in this difficult time.