So many people have been asking about pandemic parenting, co-parenting, custody, or visitation. The real issues arise when one of the parties, or child, comes up with a positive test result. Up until recently the thought of positive test results for many, especially children, was illusive. But now with these new variants, that’s more of the reality for many. Regardless, these times we are currently experiencing can’t compare to any other such time in our living history. So the courts, like its constituents, are still trying to make sense of all of it. Things like, to vaccinate or not vaccinate, to allow virtual school or in-school sessions, to enforce visits or suspend them…are all examples of issues plaguing the Family Court Law.
It is no secret that most judges are very conventional in their view on vaccinations, the Covid vaccination is no different. So in the past when a Family Court judge was presented with the issue of whether a minor child should be vaccinated when one of the parents opposed, the outcome was almost always predictable. Judges would almost always override the opposing parent’s authority by ordering that the child gets a vaccination, except in rare instances. The reason judges have always been mostly pro-vaccination is that they relied on science, data & statistics to support their position. The only exception was when the child’s treating doctors recommended against the vaccinations for medical reasons. Even then, the level of scrutiny was always above the norm. Judges are almost in agreement that Covid vaccinations are the safest bet for all involved.
This issue is a new phenomenon to some degree. If either parent has sole legal custody, then this is not an issue, that parent gets to decide. The only exception is if the other parent seeks to change or modify the sole legal custody order. In that case, the issue of in-school vs. virtual can actually serve as the basis for the modification. In the past, the issue that most resembled this one was homeschool vs. in school. The courts in those cases were inclined to rule in favor of in school. This started to change in the past few years when homeschooling became a viable option. When the data showed that homeschooled children were actually doing better academically it became easier to influence the courts.
However, the issue with Covid is a little different. Academics is not really the focus in these pandemic times, it’s about safety. This makes this issue very tricky because it’s not necessarily the safety of the target child but of the entire school population. Judges are forced to consider whether the parent’s “right” to send the child to school should be trumped by the safety of the public (school). Although judges are still obligated to apply the best interests factors (which vary from state to state) to help it make its determination. But even with that in mind, they can’t ignore their duty to keep the public’s safety in mind even if they don’t state it.
This is where things get very volatile. If a parent (or their paramour) or a child tests positive, should the child stay where they are, return home, or do something else. Better yet, what happens if the child is in a blended family and one of its members tests positive, how should visits happen then? These are all very likely scenarios and have been happening a lot. The courts are all over the place with this issue. In New York, for instance, the courts are ordering that custody orders be exercised no matter what anyone’s (or their family members’) Covid status is. This means that if the child has Covid or the parent who is supposed to have visited has it, the visits are to happen regardless.
The other scenario is whether a positive child who was exercising visits with a non-custodial parent should return to their home. Either way, the rationale is that both parents still have rights to their time with the child. The courts have always taken the position that parents can take care of their sick child during their respective visitation times. And them testing positive for Covid doesn’t change that.
The CDC, on the other hand, suggests quarantining and so are doctors who are treating the Covid positive parent/child. They are recommending that the child not expose anyone else to the virus by leaving their environment. So who should influence the judge more, the rights of the parents or the medical community? This is not really a “best interests” issue, as much as it is a public safety issue. The child’s well-being might be affected if visits are suspended because of either way someone is missing out on their time. But the time can be made up once the positively tested party is cleared.
In a practical sense, the only issue that might be worth going to court over is school. In theory, to vaccinate or not to vaccinate is disputable. But what if the other parent gets the child vaccinated before court involvement? You can’t unring a bell, meaning you can’t unvaccinated the child. So the issue then becomes one of Contempt.
The same with the visits, if the disputing parent decides to proceed to court it might be too late. By the time the case gets in front of a judge, the visiting time has already passed. So, again, the issue presented to the court would be about Contempt, Modification, or both. Either parent can conceivably seek to modify a current custody order based on how this issue was handled. The way the other parent exercised judgment, for example, deciding to ignore the doctor’s recommendations, can be considered in a modification case.
The school issue, on the other hand, is always a relevant one. It’s the only one of these issues that can change at any time. So, in other words, it hardly ever becomes a moot issue. The judge’s decision has the propensity to take into account things that might happen in the future. So it’s best to get the court involved at any time when Covid, or any other issue, has a direct impact on academic performance.
The courts are still all over the place on some pandemic parenting and other pandemic-related issues. So I strongly urge Family Court parties to get a consultation from a local family law Attorney Family Court.
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Contested custody cases requires the use of “unconventional” methods with respect to gathering facts to help it made rulings. The parties to the custody action can appear pro se, where they speak for themselves, or by their family lawyers. But children’s interests must also be given considerable consideration with respect to custody and visitation. This is routinely accomplished by the use of a guardian ad litem as their voice or by them speaking directly with the judge.
Collaborating with Your Family Law Attorney
GALs are typically used as the voice of the child in contested child custody and visitation cases. The guardian ad litem is supposed to be an impartial, objective person who represents the child in high conflict custody cases. (The ABA standards for GALS Statutory Provisions For Guardians ad Litem )They are responsible for advocating the “best interests of the child” standards for their client. They are often appointed by the court, either at its discretion or either party’s request, to report to the court the best interests of the child. They are lawyers, social workers or any other qualified professional appointed by the court. They use several measures to gather evidence, explore allegations and to report to the court based on these.
The alternative to a GAL reporting to the court, the court can speak directly with the child(ren) in custody cases. In some instances, the judge can conduct an “in camera” interview where he/she speak directly to the child in closed court (or in judges’ chambers) with a recorder or court reporter present. The thing with in camera though, is that judges are reluctant to conduct these. They’re reasoning is that children are fragile and should be shielded from the dissension involved with custody battles. In fact, there are very few instances where a judge would voluntarily subject a child to the emotional and mental turmoil of litigation.
Each state has a age limit for when a child can express their preference with respect to which parent they would like to live with. Children under 12, generally, do not have a “say” and thus the GAL is most often the sole source used to help the court to make it’s determination. Children 12 or older, on the other hand, may have the option to speak for themselves. Even though older children can speak for themselves, the extent to which they are permitted varies. The amount of weight given to the child’s preference, varies from state to state and from case to case.
In some instances, it’s beneficial to opt for a GAL, as opposed to an in-camera, no matter the age of the child. For example, in custody cases where there are allegations of alienation or manipulation then a GAL may be best suited to speak on the child’s behalf. The GAL will take the time to meet with the child; speak with each parent and/or their attorney (if they deem it necessary); talk to teachers, medical and mental health professionals who have worked with the child; review necessary reports, notes, etc. and whatever else they need to devise an adequate report for the court.
However, in cases where in cameras are permitted then this is the better option in other cases. In cameras, however time constraints is a big issue. In addition, the attorneys’ input is limited as they are usually only allowed to submit a list of questions to ask the child in lieu of their actual presence. The GAL is the only other person permitted in the in-camera, as their job is to ensure that their client’s rights are not violated by the court. The major advantage of in camera interviews though is that the whole proceeding is recorded and the parties have access to the minutes of the recording. This can a major strategic advantage for either side when preparing for trial. GALs do not have to record any such interviews with their clients and therefore, are not required to make any such recordings available.
The point is that in some cases the parties don’t have a choice, they must rely on the input of a GAL instead of an in camera. And although they might have the option to avoid both, they should understand the limitations and benefits.
Need help in handling your Family Court case on your own?
We have services that are specifically geared toward helping self-represented litigants like you understand the common mistakes that lead to the most disappointing outcomes. To find out more about our services, visit us at WWW.THEDIVORCESOLUTIONIST.COM and join our Facebook community HERE to get some helpful advice and some FREEBIES. Listen to our latest Podcast episode here.