Navigating Custody Amid COVID-19

March 23, 2020

As a partner in the firm’s Divorce and Family Law and Probate and Trust Litigation Groups, Elizabeth Crowley represents clients in all aspects of divorce and family law and probate and trust litigation. She blends her deep knowledge of the law and adept advocacy and negotiation skills to advance and achieve her client’s goals. Elizabeth’s tailored approach to her clients is marked by an unwavering commitment to understanding her client’s goals, formulating and executing a strategy, and actively counseling and guiding her clients throughout the process so that they are part of the solution. She can be reached at ecrowley@burnslev.com or 617.345.3203.

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The care and custody of minor children between parties pursuant to court order can be challenging in regular times.  The onset of the 2019 novel coronavirus (COVID-19), declared a pandemic by the World Health Organization, and which has resulted in the declaration of a State of Emergency in the Commonwealth of Massachusetts, has made navigating custody decisions even more challenging for some. Below are five key questions to consider in light of the current situation.

1.  Do I still need to follow our court order on the care and custody of our child(ren)?  The short answer is “yes”.  The Chief of the Probate and Family Court, John D. Casey, promulgated Standing Order 2-20 (“Court Operations Under the Exigent Circumstances Created by COVID-19”) on March 17, 2020  to provide guidance to those having business in the Probate & Family Court and to outline the temporary, emergency conditions which will be in place while the Probate & Family Court operates under the exigent circumstances.  Section F “Extension of Orders”, Paragraph 4, provides “All orders that were issued prior to this Standing Order and after an adversarial hearing (or the opportunity for an adversarial hearing) that are due to expire prior to April 21, 2020, shall remain in effect until the matter is rescheduled and heard.”  That means that any custody orders remain in full force and effect and are subject to enforcement in and by the Probate and Family Court.  This remains the case unless and until any such custody order is modified by the Court (whether by agreement or Court order).  Do I still need to facilitate transfers for custody right now?  Yes, unless and until further restrictions are ordered by the government that would prohibit or exempt such compliance.

2.  What happens if we disagree on safety measures for our child(ren)? The first level of inquiry is whether one party has sole legal custody, or whether the parties have shared legal custody. If a party has sole legal custody, they alone may make any and all decisions implicating joint decision making authority. If parties have shared legal authority, they must make such decisions implicating joint decision making authority jointly; not unilaterally. Now, in the time of COVID-19, there is a myriad of advice, recommendations, orders, and best practices from many different sources, and reasonable people may disagree as to what is best for their children; both married and unmarried couples alike. Is it okay for a child to reside in a home with a parent who is in a line of work that may elevate their risk level for COVID-19?  Some say yes, others no.  Is it okay to go to the supermarket and bring your child?  Some say yes, others no.  Is it okay to go outside, get some fresh air and exercise with your child?  Some say yes, others no.  Is it okay to go outside at all?  Can your child see an older grandparent?  The questions are endless, and so are the perspectives of any number of people.  Just look online and you can find endless data, analysis, feedback, recommendations, and varying positions.  The bottom line is that if you have joint legal custody, you have to work together to reach agreement on decisions implicating joint decision making authority.  Questions like those outlined above which directly impart on a child’s wellbeing, health and general welfare fall squarely within joint legal decision making authority.  Do your best to reach agreement, listen to one another, engage in respectful dialogue and not take an unreasonable position.  Of course, a child’s safety and wellbeing comes first and so if there was something being done by a parent that placed the child’s safety, health, and wellbeing in harm’s way, that is different. 

3. What are my options if we cannot agree on a custodial matter and need help? If you cannot agree between yourselves on an issue implicating joint legal decision making authority, seek the assistance of counsel.  They can listen to the particular issue, provide feedback and advice, and guide you.  They can also work with counsel on the other side if needed to try to resolve the issue in a timely manner.  What if the other side is being unreasonable or will not change their position?  Can you go to Court?  If there is a true emergency, which would be determined by the Court on a case by case basis, yes.  But, this is reserved for true emergencies.  Will the Court hear on an emergency, short order basis a dispute over whether or not a child should be able to go outside with one parent?  Or whether a parent has violated the social distancing distance recommendations of 6 feet?  Highly unlikely.  That is not in any way meant to minimize well-intended parents with legitimate concerns, but merely to set expectations in these unprecedented situations.  In the event of a true dispute, and one that cannot be resolved by parents directly, or through counsel, it is also an excellent opportunity to use alternative dispute resolution (mediation, conciliation, binding arbitration, etc.)  Many of us here at Burns & Levinson are trained mediators and conciliators and able to assist.  While you may not be able to get into Court quickly, that need not mean that custody matters cannot be properly dealt with in a timely way and even resolved outside of Court.

4.  Will there be delays in reaching resolution of my custody matter? It depends, but hopefully not in most circumstances.  If you are in the midst of a pending custody dispute, but are willing to work outside of Court to resolve your case, the current circumstances provide a unique opportunity wherein attorneys are not in Court and can often dedicate even more time to getting your case resolved by agreement.  In the event the case cannot be fully resolved through counsel, again, alternative dispute resolution is an option, and an attractive one for the reasons stated previously. Ask your attorney about available options and how best to navigate your particular case in light of the circumstances. With the technology available to us, the attorneys in our group are fully-equipped to continue to work hard and deliver high quality legal representation, despite the ongoing pandemic.

5.  How can I stay informed as to how the Probate & Family Court is handling custody matters and potential impact on my custody matter? We will be continuously updating this resource center with relevant updates from the Probate & Family Court as it relates to the impact of COVID-19 on operations and processes. If you have any questions, Burns & Levinson’s attorneys are here and happy to answer.