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 anyone person’s particular situation or be interpreted as legal advice. Everyone’s situation is different, and if you have legal concerns regarding the 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 that can be weighted 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 how to best guide parents in an unprecedented 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. Parents 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
- 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.
- 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 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.
- 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 was still in session.
- 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.
- 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.
- 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 serious concerns raised in later filings about parents who are inflexible in highly unusual circumstances.
- 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.