by Frederick L. Kobb | Family Law Attorney

The Context

The Coronavirus pandemic has wreaked havoc with almost everything in our lives, from work (offices closed), to play (sports seasons and Olympics cancelled or delayed), to school (suspended or closed altogether), to travel (impossible), to shopping (empty shelves), to family (no school + working from home = testing patience and bonds of love). For some families, these challenges pale in significance to one that is perhaps even more troublesome. Families that have experienced a separation or divorce are now having to decide how best to maintain or modify child access schedules in light of the pandemic and the unique risks it creates for children moving between the homes of two parents.

The Problem

There are several scenarios in which maintaining a regular access schedule during the pandemic could be problematic. They include situations such as: (1) a parent or child has health issues that make them particularly susceptible to contracting the virus; (2) a parent takes unreasonable risks thereby increasing their chance of exposure to the virus; (3) children leaving home during transitions; (4) child care for home-bound children where a parent is still going to work or now working from home; and (5) children with heightened anxiety over the risk of being exposed to the virus.

So far in Maryland, there are no government issued pandemic related orders that trump custody orders. Additionally, Maryland has not issued a “stay-at-home” order, so no legal authority precludes transitions between parents. For now, at least, access schedules in custody orders are effective and should be followed. That doesn’t mean that situations won’t arise that may justify taking a second look at the terms of an existing custody order. Parents should not deviate from the access terms of a custody order unless they agree to temporarily modify the order to account for unexpected and unusual circumstances like the pandemic. The overwhelming concern for parents and ultimately the courts is to do what is in the children’s best interest. During a pandemic, that may not be so clear and parents may disagree about how best to serve their children’s interests.

Conflict over custody is difficult in normal times. During a pandemic, that conflict is exacerbated by the disruption of routines, heightened emotions, and fear of the unknown. Distrust, anger, and resentment can interfere with rational and calm communication and problem-solving even between parents that have a history of successful co-parenting. Things can get tricky when parents don’t agree on whether or to what extent to alter long-standing access schedules because of the above-noted problems brought on by the pandemic. One parent’s justification for a deviation from a schedule is the other parent’s justification for raging against the deviation.

Possible Solutions

Courts normally serve as the ultimate arbiter of conflict. But, of course, these are not normal times and as a result, the courts are not functioning in their normal capacity. As of the publication of this article, Maryland courts are closed for all but limited critical proceedings through May 1, 2020. Thus, for the immediate future, petitioning the authority of last resort for relief of custody disputes spawned by the pandemic is not a viable option. At the same time, and despite the pandemic, Maryland courts will continue to hear what it considers emergency family law matters, such as domestic violence petitions. While the relevant administrative order regarding court operations during the pandemic does not expressly preclude courts from entertaining requests for emergency hearings in family law matters, it is likely that those requests will be scrutinized very carefully now. It has always been difficult to get a court to grant a request for an emergency hearing; such requests will likely be disfavored even more now given the limited activities of the courts during the pandemic.

If we can’t count on accessing the courts, what alternatives exist to address immediate pandemic-induced custody disputes? There are a couple. The first falls under the umbrella of alternative dispute resolution (ADR). The ADR mechanisms traditionally available in the family law context are mediation and parent coordination. In each case, parents meet with a trained neutral who will work towards a collaborative resolution of the parents’ conflict. Depending on the practice and philosophy of a particular mediator or parent coordinator, the neutral will either help facilitate a parent-guided resolution without recommending a resolution, or, failing the parents reaching a facilitated agreement on their own, present their own views on how best to resolve the dispute. Where ADR is not realistic for any reason or has been attempted without success, there is always the “self-help” option. As the label implies, this involves a parent taking unilateral action. Those inclined to exercise this option must appreciate the risk that this strategy will have unfavorable and severe consequences. Violating a court order may result in a finding of contempt by the court and the imposition of penalties. Further, such action is likely to exacerbate tensions and erode whatever trust exists between parents. Self-help is a very risky strategy and should be avoided whenever possible.

If you are a parent faced with the challenges of maintaining a child access schedule during the Coronavirus pandemic and would like help navigating these uncharted waters, feel free to contact me at either (410) 659-1348 or fkobb@wcslaw.com.

Visit our COVID-19 Resource Page for more updates.