Divorced and Disagreeing About Custody During COVID?

Millions of kids move from Mom's to Dad's house; now parents worry about safety.

Posted Jan 04, 2021

Have you noticed that as the pandemic continues, people are getting more irritable?

Even with the vaccine in sight, most people are weary of stay-at-home orders, the limits on shopping, dining out, and travel. Are you? If so, you are not alone. I have noticed that with this stress, added to the stress of a divorce, my clients are struggling to be patient, tired of waiting for a “normal” life and for the divorce to be done, and at times more intolerant of their co-parent. Clients tell me they have a shorter fuse than normal. This is surely a stressful time for all of us, and particularly for parents who are separating or divorcing.

Photo by Gustavo Fring from Pexels
Helping kids accept precautions is a new parenting job.
Source: Photo by Gustavo Fring from Pexels

While stressful, married parents with children at home are usually able to create a safe “pod” in their household. They can agree on rules regarding contact with people not in their “pod.” They can cooperate and be vigilant about risks any members of their pod may take that would expose them to the virus. They can generally agree to enforce their rules with the children.

It is a very different story for separated or divorced parents who are sharing time with their children.

Parents who are separated or divorced generally have an agreement (or court order) as to how time with the children will be shared. But with the pandemic, many parents are anxious about sending their children to another home, another “pod” that may be quite different.

  • What if my spouse or co-parent takes more risks?
  • What if my co-parent isn’t as vigilant about masks, social distancing, hand washing?
  • “My ex is a party person, and I don’t trust that he isn’t bringing people into the house.”
  • “My ex continues to travel for work.”
  • “I see my ex on Match.com. How do I know she isn’t dating?”
  • “I think my ex just wants an excuse to have the kids more and to take them away from me. She wants them to love her more than me.”

Some of the concerns are certainly legitimate. Some are not. Because of the conflict, these questions have raised, some cases have gone to court for the answers.

Although some states have rendered different opinions, most courts have ruled that parenting agreements, custody, and visitation orders remain unchanged and must be followed. The courts have generally ruled that this is in the child’s best interest.

Photo by Ekaterina Bolovtsova from Pexels
While most courts rule that your schedule must not change, there are a few exceptions.
Source: Photo by Ekaterina Bolovtsova from Pexels

However, there are a few exceptions. If a court finds that a parent is not taking the precautions necessary to protect the children from exposure to the virus, this may be viewed as child endangerment, and that parent may be sanctioned by the court and/or lose parenting time with the children. However, unless it is clearly dangerous or borderline abusive behavior, courts will likely not intervene. Just because your ex wants to take the kids to his/her parents’ for dinner doesn’t make it abusive or endangering. Whether your concerns about your co-parent’s behavior rises to this level may be determined by the court.

If you feel that your current agreement needs to be changed, start by having a discussion or mediation with your co-parent and try to resolve your differences. Do this before going to your lawyer or filing with the court. Perhaps you and your co-parent can voluntarily agree to a revised schedule.

If not, and if you do not comply with your parenting plan, you may risk a finding of contempt of court or even court-ordered reduction of your parenting time.

Some parents face a higher risk because of the work they do as essential workers or as health care professionals. In this situation, you might agree to defer parenting time to the future when the pandemic has been controlled, when that parent can make up the lost time. In addition, frequent Zoom, FaceTime, or phone calls can provide the child with the opportunity to connect with the higher-risk parent. Parents should consider these contacts as important as in-person time, and therefore should not interrupt or cancel these digital “visits” or connections.

In any event, parents should agree that a schedule change would be justified when a parent or someone in that household has been exposed to COVID or develops symptoms of the illness. If your child has pre-existing health risks, you may agree to a temporary change in your timesharing schedule.

How you and your co-parent can discuss your concerns

Consider this conversation with your co-parent as a problem-solving opportunity, not a competition. It is an opportunity to work together for your children’s benefit.

Some parents worry that their ex will use this pandemic time as an opportunity to increase time with their children, to increase or decrease child support, manipulate or control their ex. This is not helpful.

Photo by Vova Krasilnikov from Pexels
With a vaccine coming to you soon, you still need to be vigilant about safety.
Source: Photo by Vova Krasilnikov from Pexels

Start by agreeing that you both want to keep your children safe. Then agree that both of you are important people in their lives. State your intention to ensure safety for your children while respecting the rights of each parent to have their agreed-upon time with their children. Keep it respectful. Focus on these intentions and if your conversation is difficult, agree to take a break.

Avoid getting defensive if your ex is suspicious of your motives.

Avoid accusations of “bad parenting” or “irresponsible behavior.”

Remind yourselves that your goal is to ensure safety for your children, not to undercut or deprive your co-parent of their parenting time.

Consider these questions

Is it easier for one parent to support home-schooling? That is, is one parent more available, and are the conditions at one home more conducive to home-schooling? One client found a way to convert the garage into a classroom space and created a home-schooling pod, with a teacher, and four neighbor children. In this situation, it would be disruptive for the child to shuttle between his parents’ homes.

Does one parent have a job that exposes him or her to a higher risk, such as health care workers, emergency responders, or essential service providers? If so, what kind of precautions are realistic to protect that household from exposure? A client I have worked with is a police officer. He entered the home through a laundry room, dropped all his clothing into a washer, and went directly to shower. Both he and his ex were comfortable with these precautions.

Is one parent or a child in a higher risk category, and thus more vulnerable to infection?  One client has an elderly grandparent in the home, to whom she provides care. She worries that her children may bring the virus home from their father’s home. In another case, one of the children has an autoimmune disorder that makes him more vulnerable.

Photo by Helena Lopes from Pexels
Finding a way to let kids play is essential work for parents!
Source: Photo by Helena Lopes from Pexels

Does one parent have more access to safe outdoor play places where the children can still be socially distant? I worked with parents who were not yet divorced. One parent lived in the family home, with a large yard, while the other parent lived in a small apartment, planning to move when the divorce was finished and the home sold. COVID disrupted this plan and slowed down their divorce, as well as the sale of the home.

Can you agree that if the schedule is adjusted, that it will be temporary and that the parent losing time with the children will be able to make up that time in the future?

How will you ensure ongoing contact between the children and the parent they are not seeing?

During a time of COVID-related anxiety and stress, together with a divorce, you are more likely to feel emotional, or reactive. You may be triggered by your ex’s lifestyle or behavior, and worry about your children’s safety.

Start with a respectful, problem-solving, solution-focused conversation with your co-parent. If you need support, seek mediation, and only as a last resort, initiate a court action.

For more information, check out this post and this one.

© Ann Gold Buscho, Ph.D. 2020