April 21, 2020 by Robert Franklin, JD, Member, National Board of Directors
Every day for at least two weeks now, there’s been a large number of articles in a vast array of publications about how to handle the COVID-19 quarantine in child custody situations. The overwhelming majority of those articles say that, unless there are other extenuating circumstances, the parents are to abide by whatever court order is in effect. The virus alone is not a change of circumstances sufficient to alter the status quo regarding parenting time and custody. Countless lawyers and judges are repeating the same advice.
But there’s always the odd outlier (The Atlantic, 4/8/20).
Writer Deborah Copaken tells the story of her, her ex and their 13-year-old son. They’re divorced and seem to have shared time fairly equally until COVID-19 raised its ugly head. They live about an hour apart in New York City. Sensibly, the two grappled with what to do with their parenting arrangements during the restrictions on activity designed to reduce transmission of the illness.
But then,
‘“I’m keeping him home from school,” I texted my ex the next morning: a unilateral decision, not an opening to a dialogue.’
And later,
“Hey, hey, we need to talk about parenting in the era of corona. All things being equal, I’d be happier if he just stays here until the plague is over, but maybe you could do bike rides together outside? What a crazy time.”
Her ex argued, but ultimately, Copaken unilaterally kept their son with her. No calling the court, no motions to the court, just her own decision. Ironically, she, her partner and her son have all come down with COVID-19, so whatever precautions she believed she was taking didn’t work.
Remarkably, Copaken recruits a family lawyer to her cause.
“This is an unprecedented legal situation,” says Dana Stutman, a matrimonial lawyer in New York City, who has been inundated with calls from parents since the city’s lockdown began. “Children need to have a relationship with both parents, and continuing this relationship during this time is still important. But this is a life-threatening disease, and it’s very aggressive. Obviously the safest plan is to shelter in one place, and if there’s fallout as a result of this, parents will have to deal with that in the aftermath.”
Later, Strutman added,
“Protecting the child’s health and safety has to come first. Because if he’s not healthy and safe, he’s not going to have a relationship with either of his parents.”
Notice that neither Copaken nor her chosen legal expert ever mentioned the court order in effect or asking the judge with jurisdiction over their case to decide the matter that is, after all, one of family law. No, to both, it’s perfectly acceptable to simply violate the court order and, if that also violates criminal law, well, that’s OK too. Apparently the police are too busy with other problems to attend to parenting time violations, so, if you’re a Mom with possession of the kid, hey, do whatever you choose.
‘“No,” Stutman told me when I asked her. “I mean, he could try, but I think the police have more important things to worry about right now.” And no, she didn’t think he could successfully sue me at this point either.’
In a world of press coverage that’s all-but unanimous about how to handle parenting time during the COVID crisis, this is what The Atlantic has to offer.