Season 3 Episode 3: Navigating Child Custody and COVID-19

Note: Our Podcast, “A Year and a Day: Divorce Without Destruction”, was created to be heard, but we provide text transcripts to make this information accessible to everyone. All transcripts on our website are created using a combination of speech recognition software and human transcribers and could contain errors.

Jaime Davis: Welcome to Episode Three of Season Three of “A Year in a Day.” I’m your host, Jaime Davis. Given the current Coronavirus outbreak and need for social distancing. For today’s episode, I will be speaking by a Skype with my law partner, Carrie Tortora. Carrie is a board certified family law specialist and has practiced exclusively in the area of family law for over 10 years.

You may recall that Carrie has joined us on previous episodes of the podcast and we are glad to have her back with us today. Carrie and I will be discussing how to deal with child custody issues during the COVID-19 outbreak. These are unprecedented times and court orders and custody agreements don’t specifically address what happens when there is a pandemic.

While Carrie and I are taking appropriate safety measures to record this podcast, it’s also important that you and your family take appropriate precautions to keep yourself safe and healthy and to avoid the spread of the virus. Stay safe everyone. Here’s our call:

Jaime Davis: Separated or divorced and dealing with child custody issues is hurt enough on a good day, and divorced parents often wish to avoid interacting with one another if possible, but the coronavirus is presenting new challenges and is actually requiring more communication between the parents. So now, more than ever, both parents need to be on the same page and they need to make sure that they are taking appropriate steps to protect their children. Do you have any tips for parents who may find themselves in this situation?

Carrie Tortora: Well, the biggest tip that we have been telling clients is to work it out if they can. Um, the courthouses are closed, you know, and we don’t know when they are going to reopen or we don’t know when they’re going to be fully functional.

And so at this point there, no one is going to be coming to your rescue and now is not the time to squabble over smaller issues. Now is the time to, you know, sort of let the things that may have bothered you before slide off your back and work together to get through this time.

Jaime Davis: Right because there are so many issues that folks are having to deal with right now with school closures and trying to figure out child care arrangements, especially if both parents work, um, you know, what do you do? And so if you can’t work it out yourself, one option might be to see if there is a parenting coordinator who can help you. Um, even if the person has not court appointed, some parenting coordinators are willing to work on a contract basis with you. And so it may be an option to explore, if you already have a lawyer. Certainly you can talk to your lawyer about, um, whether or not a parenting coordinator might be good for your case.

Carrie Tortora: Yeah and the legal dealings aside, I mean, just generally speaking, you know, it’s best to model good behavior for your children. Wash your hands, wipe down surfaces, practice social distancing, you know, be the good societal member that your children can see, that you’re following the rules and that, you know, just practice what you preach and what you would want the other parent to do, and that will, um, help you in the future if you find yourself in court, in a custody case, and it’ll help you in the short term to deal with this, the, the virus itself.

Jaime Davis: Yeah, I agree. And I think it’s really important to, during this really stressful time, to the extent that we are able to do so, um, that we self-regulate and that we make sure, even though we may be feeling a lot of stress and anxiety on the inside, that we are not outwardly displaying it, um, in front of the children to the extent that we’re able to kind of keep that under control. We want to teach our children resilience and how to deal with a tough, stressful situation, but we certainly don’t want to scare them. We don’t want to overexpose them to media coverage of the virus.

I think it is, you know, the responsible thing to do, of course, to stay informed and to know what’s going on and to know what you need to do, but you certainly don’t need to keep the news on a 24-hour loop while your kids are there.

Carrie Tortora: Right. Yeah I mean that that’s particularly true for children who are going through a separation or whose parents are contemplating separation or their anxiety is already really high and the tension in the home is already high. And so if you’re all quarantined together that’s just adding insult to injury, but to the extent that we can use age appropriate, um, messages and messaging to our children, um, and like you said, to limit the amount that we talk about it and that we’re not gonna, you know.

Children are perceptive, as we all know, even if they don’t fully understand. What is being said, they can pick up on the tone and they can pick up on the tension. Um, and so, you know, too, there are all kinds of really great resources online for, um, sort of getting out of your head and helping to, you know, reduce that tension and stress in the home. There’s meditation apps, there’s yoga apps, you know, go for a walk or a run or get some exercise outside of the house, um, in a safe way. And so to the extent that you can keep yourself well, um, then that will help your children too.

Jaime Davis: And also I think providing them with some structure. You know, it’s really hard when they have gotten out of their school routine to create a new normal. But if you can create some sort of structure for them, you know, it doesn’t have to be an hour by hour schedule, but you know, maybe it’s okay in the morning we do something creative and then maybe we have lunch and then maybe in the afternoon we have exercise time and somewhere in there maybe we do some, some homeschooling. It doesn’t have to be anything too detailed, but providing them with some sort of structure can also help.

Carrie Tortora: Right? Yeah. We’ll help everyone, including the parents.

Jaime Davis: Absolutely. Um, so one of the questions that I have started getting from clients is, do I still have to exchange the children according to my custody agreement? What do you think about that?

Carrie Tortora: Yeah, so a lot of States have issued, or at least some States have issued formal opinions or guidance on the matter, and they have taken the position that people are supposed to follow the custody order, um, that you basically pretend like school is still in session, and you determine what the custodial schedule would be at school or in session, and you follow the schedule. Even if courts are closed right now, they will reopen. And so if parents withhold visitation of their children and it’s not justified or warranted, they could be facing contempt or breach of contract or other custody related claims once the courts reopen.

Jaime Davis: Right. I think the court in those situations is going to review the parent’s motivation in limiting the other parent’s access to the child. For example, did the other parent just returned from traveling internationally and are they supposed to be quarantining yet? They want to have a visit with the child. You know, maybe in that situation, maybe you would be justified and withholding, but if you are simply trying to limit access to the child, um, because you don’t want the child to go to the other parent’s house, that’s obviously not a good motivation.

Carrie Tortora: Yeah so I, you know, for example, I had a client whose, ex-husband’s girlfriend was exposed to the virus and he was very upfront about that. And they worked through that scenario and decided that they would not exchange custody of the child, but they were also flexible and providing him with a makeup weekend after his self-imposed quarantine period. And I think that that’s exactly the type of behavior the courts will expect. I don’t think that they are going to hold someone in contempt for not exchanging or allowing visitation with the child, with a parent who clearly poses some sort of risk, um, in terms of the virus.

But at the same time, they’re going to expect that the parents will show some goodwill towards one another in this unprecedented time. They’re gonna want to see that they, if the parents have really come together and tried to work for the good of the kids. And so, um, we’re encouraging people to, you know, we started out this particular question, yes, follow the court order. Second to that, and almost as important, is to be flexible. And so I don’t think that, you know, a parent’s concern, and it’s on a continuum of a scale, right? So if one parent thinks the other parent doesn’t wash hands as well and doesn’t, you know, isn’t taking the viruses seriously, is that justification for denying visitation? And I don’t know. Those are, those are kind of a case by case.

Jaime Davis: Yeah. I think they’re starting to get into more of a gray area, and I think that’s where communication is key. If one parent has a concern that the other parent is not taking the necessary precautions, they need to have a really candid discussion about that. And you know, the parent needs to say to the other parent “Hey, I really want to make sure that you’re, you know, washing hands is recommended. I want to make sure that you’re limiting, you know, our children’s exposure to third parties that they don’t need to be exposed to. Um, you know, do they really need to be going on every grocery trip? Do you need to be going to the grocery store every day?”

They need to have those conversations and, and hopefully if they can just get it out in the open and talk about it at the end of the day, both parents. Should want what’s best for their child and what is going to keep their child safest. And so hopefully they will be able to reach some common ground.

Carrie Tortora: Right. And you know, I think having that conversation is really important. But I would also encourage people to be extra diligent about documenting things during this time. And that can be in writing to the other parent via email or text, or it can also just be keeping a custody journal of, you know, what’s going on, what schedule did you all follow and why did you all make arrangements outside of the order, um, because this, you know, period of time may come up in the future.

You may be, you know, filing a motion to modify custody, or your ex may be filing a motion to modify custody. And to the extent you have notes so that you can recreate what happened during this period of time and why that’s going to be really helpful for you or your lawyer to address what happened during this time.

Jaime Davis: Yeah I think that is a really great tip, and especially if parents are agreeing to changes in the schedule for whatever reason. Just in the interest of being flexible with one another, they really need to make sure those changes are documented, whether it be an email or a text message, you know, it doesn’t have to be anything formal.

You certainly don’t need to have a lawyer draft an amendment to your agreement because you’ve agreed to switch and exchange time or a weekend or whatever during this. You know, during this time, but make sure there is some sort of paper trail so that later on you can be like, yeah, we did agree to that change. Here it is. Here’s the email that says we agreed.

Carrie Tortora: Yep. And I want to go back to something that you mentioned earlier to Jaime. You said, what if one parent. Are we what we were talking about one parent taking the virus, having the parents, having different approaches to the pandemic. Um, and that is happening in households where parents are married and it’s happening in places when they’re divorced and they’re separated.

And, you know, um, there was a great opinion piece in the New York times that basically said, now is the time to suspend all judgment, you know, none of us knows what is right and what is wrong. And some parents are hyper-vigilant and they are, you know, on heavy lockdown and they are inundating themselves with every single update, scrolling through social media all the time.

And then other parents don’t want to hear it, and maybe think that the other parent is over reacting, um, and so now is the time to show each other grace. You know, we often say that to our clients and they get tired of hearing us say to take the high road, but now really is the time to suspend judgment and allow people to react to this very unprecedented event in his or her own way.

Jaime Davis: Yeah, that’s a really good point, Carrie. And I think another factor that comes into play, you know, when considering whether or not your ex is reacting, you know, appropriately in your opinion. Are they around another high risk individual? You know, maybe they’re taking things a little more seriously than you might because maybe they have an elderly parent that lives with them.

Maybe they have another child who is susceptible. Maybe the child is asthmatic or has some sort of other condition. Maybe they themselves have an autoimmune disorder. Um, there are so many reasons why a person is going to react to the situation, you know, the way that they are. And so to the extent you as the other co-parent can try to be mindful of that, you may not agree with it, but it may at least help you understand where the parent is coming from.

Carrie Tortora: Yeah. You know, there’s also, in addition to a parenting coordinator, um, it may be possible for parents to organize a zoom or a Skype call with a therapist, um, and sort of not maybe, uh, a formal appointed co-parenting coordinator who has the authority to make decisions. But if there is a huge stumbling block, it may be helpful to just have a third party and mental health professionals help, um, referee the discussion in a more in a safer place. Parents can sort of talk about it in a constructive way.

Jaime Davis: Yeah, that’s a good idea. I mean, it will likely be a more productive conversation if you do have a third party helping you through it like that.

So what do you think, we talked before about following the custody order and how you know, you really should still follow your order unless there is a really compelling reason not to. What do you think though, if the other parent lives out of state or even out of the country?

Carrie Tortora: Well, this is obviously a much tougher call. I mean, I think the first question is, is it safe for your child to travel? And can the child travel? I mean, if you’re talking about getting on a flight to a country that’s been badly impacted or affected by Corona? Probably not. Um, if you’re talking about, um, you know, across the Virginia border, that’s pretty close. Maybe that’s a different analysis.

Jaime Davis: Yeah, I agree.

Carrie Tortora: And I honestly, I don’t, that is a tough case by case. And now, um, and I don’t know that there’s, there has not been guidance. There’s certainly not been any court opinions on it. There hasn’t been any litigated cases on this issue, certainly not in North Carolina. And so, um, that’s going to be a question that we will be facing more in the coming weeks.

Jaime Davis: Right. And you know, it’s not like our custody orders have provisions for what you do if there is a pandemic, right? Like, we’re all having to learn this together. Um, and so I think for parents, the analysis should begin with. What is in the best interest of my child, considering what the court order already requires me to do, um, and I do think that the method of travel is important. You know, can they get there by car or are they going to have to make stops, um, or is it a straight shot? You know, all of these things are going to go into that analysis. Is my child going to need to get on an airplane? Can my child even get on an airplane right now?

And you’re right, at the end of the day, each one of these cases, the facts are going to be very different. And so I think that the parents in these situations just need to to think through it and think about the safety of the child. And if, you know, one parent makes the decision that it is not safe for our child to travel right now, I’m not comfortable with this visit, then maybe the way that you remedy that, as you say, okay, well, I’m not comfortable with this visit right now, but I’m willing to give you a makeup visit the minute that it’s safe for our child to travel.

Carrie Tortora: Right. Yeah I mean, I think too, it needs to be closely tempered by, is it not for the child to travel or is this a convenient excuse not to allow the visitation. And so it needs to be a genuine, you know, reason why the child can’t go. And so, you know, as far as I’m aware, there is no prohibition on crossing state lines. And so, you know, that in and of itself does not seem to be an excuse that the child can’t go. Um, certainly. But certainly there are other factors and it can be very anxiety-provoking during this time to have your children very far away just because they’re going to be difficult to get to.

Jaime Davis: Right. And for folks who find themselves in this situation and they have lawyers, certainly reach out to your lawyer and get their opinion on it. You know, most of our offices are not operational in the traditional sense, meaning that we may not be sitting in the building, but we are still available virtually via computer and phone, and you know, we can do virtual meetings.

And so if you do have a lawyer, certainly reach out to your lawyer and get his or her input about, you know. Different options that you have in these situations. And if you don’t have a lawyer and you feel like you need one, certainly reach out to lawyers for consultations. I mean, folks are still available to help you. Um, it just may not look like the in office meeting that you had in mind.

Carrie Tortora: Yeah. And you know, without getting into the nitty gritty, that issue is going to depend too on whether your custody agreement is in a contract or it’s a court order. And so there can be some more complex, um, parts that go into this piece of the puzzle, um, and so it is best to at least have a consultation with a lawyer, even if you don’t retain their services.

Jaime Davis: So what do you think, and another issue that is coming up now, what if a parent has to miss time with the children because his or her work is deemed essential during this period of time? Maybe, um, mom or dad is a doctor or a nurse or some other essential service provider that is having to work longer hours than normal. What do you think about that in terms of the custodial schedule?

Carrie Tortora: Yeah. So normally, um, the message is that if you don’t use it, you lose it. And so the custody schedule is what it is. And if you can’t have the time, then, then oh well you guys move on and that’s just how it is. But I have to think that judges are going to expect flexibility in this regard, especially if you know, this person is a public servant in some capacity or working to help, you know stop the spread or lessen the spread of this virus, you know? I really think that the judges are going to see that as a benefit to the community and they’re going to expect the other parent to sort of recognize that, um, contribution and be more flexible as it, when it comes to custody.

Jaime Davis: Right I agree. I mean, now’s the time for parents to really put their best foot forward and to be kind and to be flexible and to be reasonable. And I think that that will serve them well in the end if they do ever find themselves in a courtroom having to answer for their actions during this very stressful period of time, that we’re all now experiencing. So those are really my best words of advice that I can give folks.

Carrie Tortora: Yeah. And on the flip side of that, this goes back to what we were saying earlier, if your ex or your estranged spouse is refusing to be kind and generous to you, there’s not much you can do right now. So you’re just going to have to document it. And it’s going to be not ideal, but you’re just going to have to document it, put it in your custody journal, as we call them, however that looks, whether it’s an Excel spreadsheet or you know, handwritten notes. And you’re just going to have to save it for another day.

This is going to be something that goes into your long-term case, but there’s nothing that you can do in the short term. And so try to just be accepting of the circumstances um, and do what you can, but recognize that to some degree, you know, this is new and things are not going to be corrected overnight.

Jaime Davis: Yeah, that’s a really good point. And that segways into my next topic of discussion, which is finances. You know, folks are getting laid off right now and people are losing their jobs and are not able to work, and so they may not be able to pay their child support, um, and I think it’s important to remember that right now. There is really no way to enforce that while courts are closed. And so, Carrie, what do you think is best practice?

Carrie Tortora: If you are the person who is supposed to be paying child support and you have found yourself in a situation where you may have lost her employment. So traditionally that the course of action would be to file a motion to modify as soon as possible. I still think that that’s the best thing to do, even if the motion to modify child support can’t be heard immediately, um, having it pending is probably the best thing to do.

And then I would say, pay what you can, you know, if you have lost all income, then that’s a different story. But if your hours have been reduced and you’re unable to work as much, then maybe pay a prorated amount of child support. Um, but the court will be looking to see that the obligate Gore, who’s the person paying child support, has done everything in his or her power to continue to pay and to continue to make that obligation current.

Jaime Davis: Right. Because you know, the bills are not going to go away for the person who receives the child support. And so I think on the front end, depending, I guess on how your relationship is with your child’s other parent, you know, have a frank discussion and say, “Hey, look, I’m so sorry, but I have lost my job, or my hours have been reduced. I’m happy to try to pay you what I can, but it’s not going to be what you were used to receiving and maybe you can have a productive discussion about that.”

Carrie Tortora: Yeah, certainly if the parties can agree. If the parents can come to an agreement, then they can enter into an amended contract or an amended court order on their own that changes child support. Or maybe you don’t want to do that right now because, um, you anticipate that this is a temporary problem that will be resolved once, you know, things get back up and going. And so, um, at least put it in writing if you all reach an agreement. It doesn’t have to be anything formal, but it does need to be some, you know, writing like an email and preferably the person would respond and say, yes, okay, I understand. And I agree.

But to the extent that you can work it out with a person, certainly you’d want to inform them that you lost your job, um, and not just stop paying them. And if you can’t agree and they can’t, you know, they’re making, they’re demanding that you continue to pay the full amount. You would want to talk to your lawyer about whether it makes sense to file a motion to modify.

Jaime Davis: Well, Carrie, I think that we have talked about a lot of great tips for parents who are having to deal with child custody and child support issues, um, during this COVID-19 pandemic that’s going on right now. Are there any other tips that you would like to offer our listeners?

Carrie Tortora: Well, I mean, my biggest tip is not necessarily for divorced people, it’s for everyone, myself included, but it’s just take a deep breath, take one day at a time and try to just be patient and keep your chin up.

Jaime Davis: Well, Carrie, thank you for joining me today. If any of our listeners would like to contact you, what is the best way for them to reach you?

Carrie Tortora: The best way right now is probably email, so my email is ctortora@divorceistough.com or you can call the office at (919) 832-8488.

Jaime Davis: All right, Carrie. Well, thank you. I look forward to the day that we can be back in our office and recording these podcast episodes in person.

Carrie Tortora: Thanks Jaime. Have a good one.

Jaime Davis: I hope you all found this episode of “A Year and A Day” to be informative. If you have any questions or comments, I would love to hear from you. You can e-mail me at jdavis@divorceistough.com. If you like what you heard today, please leave us a review on Apple podcasts.

As a reminder, while in my role as a lawyer, my job is to give folks legal advice. The purpose of this podcast is not to do that. This podcast is for general informational purposes only, and should not be used as legal advice and as specific to the law in North Carolina.

If you have questions before you take any action, you should consult with a lawyer who’s licensed in your state.

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