COVID-19
continues to present many challenges to New Hampshire and its families. With
the Governor’s directive limiting gathering significantly, closing schools, and
asking many people to work from home, families have been inundated with
concerns about their current parenting orders or obtaining new ones.
Please
note that this article should not be read for any one person’s particular
situation or be interpreted as legal advice. Everyone’s situation is different,
and if you have legal concerns regarding interpretation or modification of a
parenting plan, you should speak with one the family law attorneys at Parnell, Michels & McKay.
NH
RSA 461-A:6 sets the “best interest of the child” legal standard for drafting
or modifying a parenting plan. The best interest of the child is determined by
up to twelve (12) factors which can be weighed differently by the judge depending
on the case, as well as any other factor the Court deems relevant. The legal standard
is purposely “open”. It is intended to provide the Family Court the flexibility
to make a judgment on what is right for any child, in any situation, when the
parents are unable to agree.
NH
RSA 461-A:11 is for when the parties want to change the routine schedule after
a parenting plan has been ordered. In this statute the Court enumerates nine
(9) different factors that permits the Court to modify the routine schedule for
the child. A parent must list and prove a factor under this section if they
want to change the child’s schedule. However, any other modification request
must only prove the best interest of the child standard.
The
question facing many family law practitioners concerns with how to best guide
parents in an unprecedent event. To be frank, there is no single clear and
obvious answer.
The general consensus is that unless
someone in the parent’s household has COVID-19, parenting should continue under
the parenting plan except for good and compelling cause shown. Parent must have
exceedingly severe circumstances to unilaterally deny parenting time to the
other parent. Any unilateral decision faces the risk of a contempt motion at a
later date for denying parenting time.
The current shelter in place orders permit
grocery and pharmacy trips, and certain outdoor activities so long as proper
group reduction and social distancing measures are taken. So, facts will need
to be more persuasive than something like “I think I am sick” or “I think my
child could get sick”.
Although
it is true that no hearings will be scheduled until at least May 4, 2020 and/or
the termination of the Governor’s State of Emergency due to COVID-19, the
Family Court remains open for emergency (ex parte) hearings if there are
concerns for your child’s safety and health. For any ex parte motion, the party
will need to demonstrate that immediate and irreparable harm will come to the
child if the Court does not take preventative action. This cannot be
hypothetical. The Court is very wary of people trying to abuse this process
during the pandemic, and is denying many ex parte filings.
In
addition, the Family Court remains open to receive any and all motions and pleadings.
Further, the Court is holding other hearings such as temporary hearings and
child support referee hearings to ensure that parenting and child support cases
can remain on track.
Organizations
and Courts across the country have tried to develop guidelines for co-parenting
during the COVID-19 pandemic. What follows is from the American Academy of
Matrimonial Lawyers (AAML) and the Association of Family and Conciliation
Courts (AFCC):
“Seven
Guidelines for Parents Who Are Divorce/Separated and Sharing Custody of
Children During the COVID19 Pandemic
From
the leaders of groups that deal with families in crisis:
Susan
Myres, President of American Academy of Matrimonial Lawyers (AAML)
Dr.
Matt Sullivan, President of Association of Family and Conciliation Courts
(AFCC)
Annette
Burns, AAML and Former President of AFCC
Yasmine
Mehmet, AAML
Kim
Bonuomo, AAML
Nancy
Kellman, AAML
Dr.
Leslie Drozd, AFCC
Dr.
Robin Deutsch, AFCC
Jill
Peña, Executive Director of AAML
Peter
Salem, Executive Director of AFCC
1.
BE HEALTHY.
Comply
with all CDC and local and state guidelines and model good behavior for your
children with intensive hand washing, wiping down surfaces and other objects
that are frequently touched, and maintaining social distancing. This also means
BE INFORMED. Stay in touch with the most reliable media sources and avoid the
rumor mill on social media.
2.
BE MINDFUL.
Be
honest about the seriousness of the pandemic but maintain a calm attitude and
convey to your children your belief that everything will return to normal in
time. Avoid making careless comments in front of the children and exposing them
to endless media coverage intended for adults. Don't leave the news on 24/7,
for instance. But, at the same time, encourage your children to ask questions
and express their concerns and answer them truthfully at a level that is
age-appropriate.
3.
BE COMPLIANT with court orders and custody agreements.
As
much as possible, try to avoid reinventing the wheel despite the unusual
circumstances. The custody agreement or court order exists to prevent endless
haggling over the details of timesharing. In some jurisdictions there are even
standing orders mandating that, if schools are closed, custody agreements
should remain in force as though school were still in session.
4.
BE CREATIVE.
At
the same time, it would be foolish to expect that nothing will change when
people are being advised not to fly and vacation attractions such as amusement
parks, museums and entertainment venues are closing all over the US and the
world. In addition, some parents will have to work extra hours to help deal
with the crisis and other parents may be out of work or working reduced hours
for a time. Plans will inevitably have to change. Encourage closeness with the
parent who is not going to see the child through shared books, movies, games
and FaceTime or Skype.
5.
BE TRANSPARENT.
Provide
honest information to your co-parent about any suspected or confirmed exposure
to the virus, and try to agree on what steps each of you will take to protect
the child from exposure. Certainly both parents should be informed at once if
the child is exhibiting any possible symptoms of the virus.
6.
BE GENEROUS.
Try
to provide makeup time to the parent who missed out, if at all possible. Family
law judges expect reasonable accommodations when they can be made and will take
seriously concerns raised in later filings about parents who are inflexible in
highly unusual circumstances.
7.
BE UNDERSTANDING.
There
is no doubt that the pandemic will pose an economic hardship and lead to lost
earnings for many, many parents, both those who are paying child support and
those who are receiving child support. The parent who is paying should try to
provide something, even if it can't be the full amount. The parent who is
receiving payments should try to be accommodating under these challenging and
temporary circumstances.
Adversity
can become an opportunity for parents to come together and focus on what is
best for the child. For many children, the strange days of the pandemic will
leave vivid memories. It's important for every child to know and remember that
both parents did everything they could to explain what was happening and to keep
their child safe.
Moreover,
the Massachusetts Probate and Family Court issued the following open letter
about one week ago: https://www.mass.gov/news/open-letter-regarding-co-parenting-during-covid-19-from-chief-justice-john-d-casey.
The
most important thing that parents can do right now is be understanding and be
kind. If you need help seeking a modification of your court ordered parenting
obligations, or want advice on interpreting your current orders through the
pandemic, the family law attorneys at Parnell, Michels & McKay have the
experience necessary to assist you. Contact us today.
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