One of the effects of COVID-19 has been a sharp increase in child custody disputes in New York and across the country. As issues related to custody and parental access escalate, so do long-lasting and unintended implications for parents, children, and their caregivers. Courts across the country have begun grappling with these issues even as they have been partially closed due to the pandemic, and we anticipate that they will continue to do so now that the court system has started reopening.

Since the onset of the pandemic, separated and divorced parents and their children have faced significant issues related to custody and parenting time. Parents working as first responders on the frontlines of the pandemic face particular challenges because they risk exposure to the virus through their jobs.  Fears that these parents could contract the virus and expose their children have resulted in a substantial increase in custody disputes.

CASES REGARDING DOCTORS AND FIRST RESPONDERS

In a recent Florida case, an emergency room doctor temporarily lost custody of her young daughter when her ex-husband filed an emergency order seeking full custody in light of COVID-19 health concerns.  The parents had previously shared custody of their daughter for nearly two years. Although the mother was taking precautions to protect against infection, including wearing full personal protective equipment while treating patients, the judge granted the father’s request, writing that: “The Court does not enter this Order lightly but given the pandemic in Florida and the recent increase in confirmed COVID-19 cases, the Court finds in order to insulate and protect the best interests and health of the minor child, this Order must be entered on a temporary basis.”  A Florida appellate court subsequently reinstated joint custody to the mother.

A similar case also arose in New Jersey, where a father was granted an order of temporary sole custody of his two children based on concerns that the children’s mother, a physician about to resume seeing patients in person, could expose the children to COVID-19.  Rather than contest the order in court, this mother ultimately agreed to refrain from seeing patients in person, having been authorized by her employer to continue conducting telemedicine instead.  The judge in that case then rescinded the order of temporary custody to the father.

In another coronavirus custody dispute, a New York court has taken a cautious approach similar to that seen in the above-referenced New Jersey case.  The court denied a first responder father’s motion to enforce his in-person parenting time under the parties’ agreement and imposed a temporary, telephone/Skype access schedule for him, validating the mother’s claimed concerns about their children’s safety.  The court stated, in part, that “[i]t is in the best interest of the parties’ children for their safety at this time [because of the pandemic] to implement the new, although temporary, access schedule.”
 
NON-FIRST RESPONDERS AND ACCESS ISSUES

It is not just first responder parents who have been impacted by health concerns related to COVID-19 exposure risks.  As a result of social distancing measures implemented in New York and elsewhere, some parents have been left unsure whether, and by what methods, they are permitted to transfer children to the other parent, and whether doing so would be safe or would increase the exposure risk for them and their children.  Consequently, there are reports of parents having engaged in “self-help” by, for example, unilaterally withholding physical access to their children in violation of parenting agreements and court-mandated custody orders.  Some parents have exploited the health pandemic by withholding children even in the absence of specific articulated health concerns associated with COVID-19.  In one recent case, Bronx Family Court frowned on the mother’s self-help tactics, directing the father’s in-person visitation to proceed as previously ordered.  In so holding, the court noted, among other factors, that a generalized fear of the virus “is insufficient to severely limit and perhaps harm a child’s relationship with a parent.”  The court elaborated that “in times of crisis children need regular contact with both parents more than ever to provide love, comfort, stability and guidance, something that video and virtual connections cannot fully accomplish.”

In addition, parents who are required to exercise parenting time in a public place and/or in the presence of a court-ordered supervisor may have difficulty doing so, because many public spaces are closed, e.g., playgrounds, museums, restaurants, and bookstores. In addition, supervisors may not be willing to conduct in-person supervision due to concerns about transmitting coronavirus.  In such cases, supervised parenting time might occur instead using technology such as FaceTime, Skype, or Zoom.

UNINTENDED AND LONG-LASTING IMPLICATIONS
 
The decisions made by parents during the crisis should be carefully considered because they could potentially have unintended, long-lasting implications for custody and parental access issues.  In a recent article in the New York Law Journal, Judge Jeffrey Sunshine, New York’s Statewide Coordinating Judge for Matrimonial Cases, wrote that, “One of the important things I think about in making a custody determination is if this is how this individual is behaving while a case is pending or about to commence, how will they behave when it is over? Simply put, when you behave a certain way and there is a judge in the equation, how will a parent behave when I am no longer involved in their lives? *** Those who think that there is a lack of consequences to not conducting themselves appropriately during this crisis are wrong. *** If parents do not conduct themselves appropriately and sensibly, their children will remember throughout their lives how they acted and so will the judge deciding the case.”

A recent case illustrates both the uncertainty of outcome of custody litigation based on COVID-19 fears and also the variety of factors courts may consider in deciding such disputes.  In this case, New York Family Court denied a mother’s motion for temporary sole custody of the parties’ child as well as final parental decision-making authority.  The mother, who had made multiple prior motions to modify custody, argued that the child should remain with her in New Jersey because, she claimed, there would be less risk of infection there than if the child returned to the other mother, who resided in Brooklyn, a coronavirus “hotspot.” She made this allegation notwithstanding that the parties had already worked together successfully to reduce the child’s risk of exposure to the virus.  In addition, the mother had not followed the protocols for custody dispute resolution set forth in the parties’ Judgment of Divorce.  In denying the motion, the court explained that the “Mother’s failure to comply with the condition precedent to commence a proceeding under the Settlement Agreement coupled with her unsubstantiated and conclusory allegations against the Ex-Wife are insufficient to warrant a temporary change of the custody and visitation arrangement.”

PARENTAL ACCESS AND PRACTICAL CONSIDERATIONS

To avoid having to make difficult decisions under duress, parents should proactively discuss any possible health-related concerns with each other and try to work collaboratively to find a resolution that successfully balances the child’s health and safety with his/her interest in ongoing, regular in-person contact with both parents.  Other practical considerations raised by coronavirus-related custody and parental access issues include the impact on children from sudden and drastic changes to custody and parenting time; whether and when lost parenting time will be made up; how effectively tools like FaceTime and Skype can be used to help fill the gap when in-person visits are impossible or impractical; and the financial implications of any litigation arising from a parent’s refusal to comply with custody agreements/orders in light of COVID-19 concerns.

Communication, creativity, understanding, and flexibility are paramount when dealing with complex issues of custody and parenting time, especially during the extraordinary circumstances of the current pandemic.  Even when parents are able to resolve custody and access disagreements without the need for court intervention, lawyers can play an instrumental role in helping navigate the intricacies involved in these issues.  In some cases, judicial intervention may be necessary in order for parents to enforce or seek modification of an order. 

Although courts in New York are now open for essential business and have expanded their “virtual” operations in light of the pandemic, the categories of proceedings that the courts will hear are currently somewhat limited.  Nevertheless, New York courts would likely find that custody and access disputes such as those discussed in this article would constitute matters worthy of judicial attention, notwithstanding the restrictions currently in place.