COVID-19 - School Closures & Child Custody Matters

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Eric Leckie 25/03/2020

Schools Closed Until Summer

On March 23, 2020, through Executive Order, Governor Northam ordered statewide closures of all schools (K-12) for the remainder of the academic year. This will certainly cause a tremendous strain on parents throughout the Commonwealth, especially on those operating under custody and visitation orders. The most recent Executive Order creates a space where most families are unclear how to proceed with parenting time.

How does this order affect families in Hampton Roads? Are we operating under “Regular” parenting time or “Holiday” parenting time? Is the other parent responsible to watch the children when I need to work? What happens if we are ordered to “shelter in place” like California and other states? This is the first-time families have needed to address these issues and hopefully the last. Attorney T.J. Wright, leader of the Family Law Practice at the Invictus Law Firm, has provided a framework to ensure our children are the least impacted by custody and visitation issues that may present themselves during the COVID-19 pandemic response.

Describing Governor Northam's Order

For all issues pertaining to custody and visitation, Court Orders are the law of the land. More specifically, Orders should delineate the who, what, where, and when pertaining to children. Most visitation orders are divided into two general parenting times: “Regular Parenting Time” and “Holiday Parenting Time.” Regular Parenting Time usually refers to the day-to-day times when children would be in our care, such as during the week, weekends, and/or when the children are in school. Holiday Parenting Time refers to special occasions like Thanksgiving, Christmas, and Summer Break.

It is important to read the Order because this will be the default should parents not agree on when each parent will spend his or her time with the children. A sample provision in an Order might state, “Parenting time to Mother from 5:00 p.m. on Friday until 5:00 p.m. on Sunday” or “Parenting time to Father from the day school releases for Summer Break until one week before school resumes.” At a minimum, these times must be adhered to or a “violating parent” could suffer sanctions from the Court, such as fines, modification of custody or visitation, or even jail time.

There is likely not a provision that addresses pandemics, coronavirus, or mass school closings. However, most orders give parents the opportunity to work together during times outside the annotated provisions and/or create modifications by agreement to suit changes in life. For example, it is common for orders to include a provision stating “all other times as the parties may agree” or something very similar. This allows for parents to work together to accommodate for special occasions ranging from Grandma Sally’s 96th Birthday party to Executive Order Fifty-Three closing all schools (K-12). The key to reaching these agreements is effective co-parenting.

Co-Parenting

In its simplest form, co-parenting is sharing the duties of parenting a child. Unfortunately, this is likely the single most challenging aspect of being separated or divorced parents. The current Executive Order creates many challenges for working parents, but it also creates opportunities for parents to work together during these uncertain times. Communication is the primary key to success.

First, if you need help with childcare or you can help with childcare, now is the time to speak up. While some companies are mandated to close to the public until further notice, many remain open. This creates an opportunity for parents to work together to determine a schedule that supports one or both working parents.

Second, provide the other parent with all information regarding the academics to be completed at home. Even if you have been previously homeschooling your children, teaching children is difficult, especially with the distractions of home, the current pandemic, and if you are not a professional educator. (God bless our teachers) Neither parent should be required to bear the entire burden of this task if another parent is willing and able to assist. Most of the information from schools is communicated digitally and can be shared with a few “clicks.” I have yet to see a parent be admonished in court for sharing too much school information.

Finally, attempt to develop a short term and long-term plan. The current environment is ever changing with updates coming by the minute. Currently, it is unclear how the Department of Education will address how students are expected to complete the remainder of the academic year. In the event this scheduled to occur over the summer, this will complicate even the most thorough of custody arrangements. In short, be specific with your plan, but be flexible.

As stated, good co-parenting relies on communication. It is always a good practice to communicate in a manner that documents the communication. This can be accomplished via text message, email, or co-parenting apps such as Our Family Wizard, Talking Parents, or The Family Core. Documentation ensures both parents have a clear understanding of the agreement and are able to reference it later. Additionally, in the event there is a dispute over the terms of an agreement, it will be easily referenced for the parties, their counsel, the Guardian ad litem, and/or the Court. Remember, an agreement can only exist if both parties agree and so long as they continue to agree. Documenting communication is also effective to show whether an agreement existed at all.

Parenting and Co-parenting is a Choice

It is undisputed that children benefit the most when both parents play an active role in their lives. However, some parents are unable to place the children’s needs ahead of their own. This behavior is commonly demonstrated when a “non-custodial” parent does not exercise his or her visitation or with parents who do not afford a “non-custodial” parent time with the children outside the specific times annotated in an order for no particular reason. Unfortunately, neither of the listed parents are technically violating the court’s order, but neither are necessarily acting in their children’s best interests.

A court cannot order a parent to spend time with his or her children just as a court cannot order a parent to provide parenting time outside the times it has already delineated. However, both scenarios are factors a court will and must consider in a Motion to Amend Custody or Visitation. In the former scenario, the “non-custodial” parent is not demonstrating his or her ability to maintain a close and continuing relationship with his or her children. In the latter scenario, the parent is not actively supporting the child’s contact and relationship with the other parent. If either scenario were presented to a court, it must analyze the totality of the circumstances under the framework of the Best Interests of the Child factors as listed in the Virginia Code. If a parent is not exercising his or her parenting time or if you are unreasonably being denied parenting time, it may be time to discuss these issues with a family law attorney.

To address this and other family law matters, we at Invictus Law are ready to answer your questions, find solutions, and give you peace of mind during this time of uncertainty. Please contact us online or at (757) 337-3737 to schedule your consultation. We are happy to provide appointments via phone or video chat comply with social distancing recommendations.

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