Shared Custody and COVID-19

Shared custody means that parents make important decisions for their children by agreement. But what decisions need to be agreed upon? Normally, only “major decisions” are shared by separated or divorced parents. Major decisions can include medical, educational, selection of extracurricular activities and summer camps, and religious upbringing decisions. Typically, day-to-day decisions like what the children will wear, whether they wash their hands as soon as they get home, whether they will go to a birthday party, etc. are left to the parent the children are with at any given time.

But COVID-19 has made many “day to day” matters feel like “major decisions” – the kinds of decisions that are so important to a child’s welfare that the parents should agree on them. What if deciding what to wear includes whether the child will wear a mask? And if the parents agree about the mask, do they agree about what kind of mask?

Here’s What You Need to Know About Shared Custody and COVID-19

Even when parents have otherwise been successful in making decisions together, COVID has caused many issues. What precautions should be taken, and how strictly should they be enforced? COVID presents seemingly endless decisions that would typically fall into the “day-to-day” category that parents might not agree on. Should a child be permitted to attend a sleep-over party? To eat, unmasked, in a restaurant? Particularly for younger children, not yet eligible for vaccination, navigating day-to-day life can still feel like a parade of difficult and weighty decisions, all profoundly implicating their children’s safety and health. When one parent takes precautions, and the other does not, disputes can arise in both directions – one parent feeling the children are being improperly limited, the other feeling they are not being protected adequately.

Even the parents’ own private lives, when the children are not with them, have been implicated. Many parents have experienced disputes regarding the precautions they are taking to avoid contracting COVID, and possibly transmitting it to the children. This can get very touchy if one parent is going on Tinder hook-ups while the other is still avoiding public places and wiping down their grocery deliveries. COVID has made divorced parents’ personal decisions relevant in ways that previously did not exist.

What About COVID-19 Vaccinations for Children?

Many settlement agreements provide that either parent can obtain “routine” medical treatment for a child, which might include vaccinations, depending on the language of your agreement. If it’s not clear from your agreement or custody decision, it might be prudent to err on the side of assuming that consent is needed from your co-parent. In many instances, parents will agree, and if they decide on vaccination, no special measures need to be taken. Either parent can proceed with the agreed-upon action, unless the specific agreement says differently: for example, if the settlement indicates that both parents have a right to attend all medical appointments.

But in today’s circumstances, some parents may disagree whether the decision to vaccinate for COVID-19 is “routine.” One of the most difficult issues that can arise in a divorce is when parents disagree regarding a major medical decision for a child. That is only more difficult when the decision might relate to an issue like COVID vaccination – where you vaccinate, or you don’t – setting up an unfortunate win/lose situation between the parents. Parents need to remember that the need to “win” must not overshadow making a sound choice for the child.

What does a court do when parents don’t agree on an important decision? A court may decide to first send the parents to intermediation. A parenting coordinator might help, or a trained mediator. If the parents’ disputes have started to overshadow the underlying issue, consultation with the child’s pediatrician or a child psychologist might help. A judge may want to see that all these cooperative measures of working through a dispute have been exhausted before seeing you in court.

Shared Custody and the Best Interests of the Children During COVID-19

In most jurisdictions, the law sets forth the standard of “best interests of the child” when it needs to resolve a dispute between joint custodial parents. What does that mean? It includes whether the vaccination is safe for the child in question and whether the risks of the vaccination are outweighed by the likely benefits. A litigant will want to show that he or she has considered these issues and has tried in good faith to engage with the other parent and reach a meeting of the minds, with only the child’s welfare at heart. The court won’t make the decision – the court will empower one parent to make the decision, over the other parent’s objection.

The Court is likely to consider whether a parent’s proposal (i) is based on recommendations from respected authorities, such as the American Academy of Pediatrics, the CDC, etc., (ii) considers the individual child’s medical history – has the child received prior vaccinations, and did the child experience any adverse reactions to vaccination in the past? (iii) has the parent considered both sides of the issue, in good faith, and really listened to the other parent – can the parent explain WHY he or she disagrees with the other parent, in a respectful and logical manner? (iv) does the parent know what is required at school and in other settings, and if against vaccination, does the parent have a sound plan to meet the medical, educational, and other needs of an unvaccinated child?

And there will likely be something much more comprehensive on the judge’s mind. If a family ends up before a judge over a vaccination, this might be a family that can’t exercise “joint custody,” meaning joint decision-making for the child, in a general sense. An issue about a specific decision is an important opportunity to show the court that you are the parent who should be empowered to resolve disputes – not only because you may make better decisions, but because you will involve the other parent, fully and in good faith, even if that means taking on more of the administrative or leg work, and even if that feels unfair to you. And if it does feel unfair to you, keep that to yourself. Never complain to a court about the work you do to ensure your children’s well-being, even if your co-parent isn’t pulling his or her weight, but still wants a voice.

Most jurists believe that what is in the best interests of a child – in all but extraordinary cases – is to have parents reach decisions together without unnecessarily involving the child. Failing that, a judge may tend to empower the parent who seems to care the most about both parents’ views being in the mix. How a parent handles this issue could affect the Court’s ultimate decisions about who controls decision making.

Margaret Donohoe and Paul Talbert are Founding Partners of Donohoe Talbert LLP, a leading New York matrimonial law firm with a focus on complex custody disputes and high-net-worth divorces. Margaret Donohoe has been practicing exclusively in the field of matrimonial and family law since 2000. She is a regular lecturer on family law subjects for the New York State Bar Association and the New York City Bar Association. Paul Talbert has built his reputation as an intelligent, passionate, and tenacious advocate, both inside and outside the courtroom.  In 1998, he began practicing matrimonial law so that he could have a direct impact on the daily lives of his clients. www.donohoetalbert.com