WATCH: Complex Child Custody Issues During COVID-19

Video Transcript: Complex Child Custody Issues During COVID-19

Diana Shepherd: I’m Diana Shepherd, the editorial director of Family Lawyer Magazine and Divorce Magazine. Joining me today is Harrisburg Pennsylvania Family Lawyer Maria Cognetti, who is here to discuss custody conflicts and visitation in the time of COVID-19. The co-creator of the AAML and the AFCC’s “Advanced Issues in Child Custody National Conference”, Maria is going to apply her extensive experience with complex child custody issues to the problems created by COVID-19. Maria, welcome. And thank you for taking the time to be with us today. 

Maria Cognetti: Thank you for allowing me this opportunity.

I know you have a lot of experience with complex custody and visitation issues. How has that changed, or has it changed, now that you have all of the extra issues that come along with the pandemic?

Everything’s changed. I think it’s changed across the board for all of us clearly in the area of custody. The folks who are involved in a custody battle or even what was previously a peaceful custody arrangement are as stressed out as the rest of us. Some of them have ill motives in wanting to keep the kids from the other parent and some have genuine concern over who can care for the child better. So it’s really thrown their world into a turmoil.

What kind of specific concerns are you seeing and what advice are you giving to people? I’m assuming that you can tell me if this is correct or not, but I would think that there might be one parent who might not think that it’s such a bad thing for the kids to get together with their friends. They’re bored. So why not? What could it hurt? And then the other parent absolutely freaks out at this and says, ‘no, that is not parenting. That’s not social distancing. I want full custody of the kids.’ Are you experiencing any of that happening?

You must have talked to one of my clients recently. It’s almost exactly what the complaint was. ‘You let Little Johnny go outside and play with his friends, and therefore you shouldn’t have him. I am the only parent who knows what’s best for our child.’ Then you get a response from the other side that says, ‘well, we may have let him go outside and play with little Johnny but she just let them ride his bike over to grandma’s house and play with the cousins.’ So the bottom line at this point is to try and get these people to understand what’s a valid concern, and what’s not a valid concern. We are hampered a little bit in that area because being in an area of the country where we have a lot of small courts, we have a lot of county courts. I practice in the middle of Pennsylvania, in about 20 different counties, and I can tell you that each of the 20 counties has different rules right now, ranging from a county that has actually said that if you are a primary custodial parent, you keep the child. That’s whether there’s a concern whether anything has gone wrong. If you are in a shared custody arrangement, whoever had the child when the stay-at-home order came out, keeps the child. Now that’s one end of the spectrum. What most of the courts I think are doing is saying, look, we’re not going to get involved in your custody situation until there’s a valid concern of harm to the child. What really is disturbing is what’s going on not just here, but across the country where concerns are being raised by parents, where the other parent is a first responder or a medical provider, and just willy nilly that the other parent wants to say, ‘well you’re going to take care of sick people all day. You shouldn’t have our children until this is over.’ That’s tough. 

I’ve seen two different cases, one where the parents said ‘this is my job, it’s my livelihood. I’m here to heal people. I’m cautious.’ And in the end, thankfully, the court agreed with her although they had temporarily taken away her kids. In another case, the healthcare provider said, ‘I can’t do this to my kids, I’m going to have to temporarily give up my job.’ That’s a decision people shouldn’t have to make.

My understanding is that the courts are closed. What happens during this time when it’s closed, when you have what I would presume would be an emergency order?

That is a good question and you hit it on the head. The courts are closed physically, and the buildings are generally closed. What we have here and I think across the country is the courts are always open to emergencies. In my area, the two bases for emergencies in this line of work are if there’s a protection from abuse action, and or whether there’s a custody emergency. So pretty much all they are hearing right now are custody emergencies where one parent thinks the children should not have to go or one parent files to say, ‘Judge, I should have custody right now, and she’s withholding it.’ So they are doing those. They are attempting to do everything by video conference, although they are doing some stuff in the courtroom. That’s very difficult for them to arrange because there’s got to be the massive social distancing in the courtroom. But most of these matters can actually be determined by a video conference.

So the emergency motions that you are having heard, are you also doing that through Zoom? If there’s a domestic violence case, how would the judge be hearing that?

I don’t do domestic violence but I doubt they’re being done by Zoom. But in every courthouse that I know, there’s always a judge on call, there’s a judge physically in the courthouse. I would assume that that’s how they’re handling them.

For custody, for one, people are rushing to try and change custody, they are in fact physically going into the courthouse to do so?

In those cases, no, that is only for the physical violence cases we were just talking about. What most judges are telling me is that when they get a petition that says ‘I don’t want to send Little Johnny,’ or ‘I want to be able to pick up little Johnny,’ the first thing that we’re doing is trying to get both attorneys on the phone and say, ‘I know I have a really tough case where my client’s child is on the west coast. he should be getting her immediately. And counsel and I worked out that this is a bad situation, we don’t want to dump it on the court. Keep her out there until it’s safe, give us additional time when she comes back.’ That’s the kind of thing that courts are trying to work out. It may not be a perfect world, but the courts are doing that. The other thing that they’re doing is taking oral arguments from the attorneys, and they are able to do witnesses. They’re trying not to do that, because that’s not really a record hearing. But I think they’re trying to use the Zoom or video conference mechanism to try and get folks to focus on settling these matters.

Diana Shepherd: Maria, I want to thank you for taking the time out of your day to talk with me today. I really appreciate it and I think we got a lot of useful tips. Thank you again and stay safe. Let’s hope this is all over soon.