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Custody Decisions: Remote verses actual attendance?
September 12, 2020
New York City has been the epicenter of the COVID-19 virus and this is had an extreme impact on child custody cases in New York.￼ As parents ready themselves to take the children back to school, parents involved in a child custody or divorce case are up in arms against each other when having to decide whether learning will be remote versus in person versus a blended curriculum.
The Family Court and the Supreme Court in child custody cases and divorce cases involving children are very anxious to have children back in school for variety of reasons. One of such reasons is that children need socialization as well as education. This issue has caused an uproar in Family court because many times the parents cannot agree on how to venture forth with the education of their children. In cases where custody is at issue and where both parties await a judicial determination after trial as to decision making,￼ The courts are often faced with motions by one or the other of the parents to determine temporary legal decision making with respect to the above decision as to schooling.￼ The arguments for and against remote learning versus in person learning are obvious. Some parents prefer that the children study at home, especially if they do not agree that the schools taking adequate precautions to ensure the safety of the children. Other parents, particularly those of younger children, have concerns that keeping the children at home will deprive them of the socialization that they need to move forward in their lives and in their education.
COVID-19 has challenged families in ways that they can never imagine. Family court is likely to see a surge of cases because of the re-opening of New York schools this month. Moreover, we will see a challenge to court orders affecting child support and spousal support due to a potential payor’s loss of income. Another problem that is anticipated in Family Court in New York is that it will take a considerable amount of time before the Family Court and the Supreme Court get back to a regular schedule. The mandated closures of the courts have caused a backlog and judges are reviewing cases that take precedence over other cases that have more serious issues at stake. As a result, thereof, parents are using self-help whereby one parent in enrolls the children in remote learning classes only to find out that the other parent has unenrolled the children from the remote learning classes. Try to arrive at a solution or compromise or the court might do that for you,
Child custody cases are overly complicated. However, with the onset of COVID-19 now, more than ever, it is important that parents utilize mediation and use common sense to sort out their differences. It is highly unlikely that the court system will be able to attend to all the cases that have this pressing issue prior to the opening of schools in September 2020.
Another issue the courts face in Family Court is the fact that the courts are now accepting new filings and petitions based upon a change in circumstances due to COVID-19. Courts will accept petitions but there may be a time lag before you are heard, absent an emergency. Moreover, the courts expect the parties to use common sense and will not let the parties use Covid as an excuse for not obeying court orders.
As to existing child custody and visitation agreements or court orders, the courts are expecting the parties not to violate these orders. In fact, the police are enforcing these orders even though one parent or the other might have a good reason to protect her child from the spread of the disease.
other issues that have arisen have to do with the employment of one party versus the other. If one of the parties is an essential worker and has to go to work in a hospital and is potentially exposed to COVID-19, the other party might see this as a risk to the child and make a motion to the court for protective order or for a change in custody. These motions have a mixed result. Some courts do not wish to punish the parent who is a front line worker while other courts put the children’s best interest first, as they should, and change custody to the parent who is the least at risk.
To conclude, the unprecedented hardship caused by COVID-19 to our court system will not be remedied quickly. However, the courts are taken great strides to write the wrongs that have been caused by COVID-19. For more information go to www.nycdivorcelawyer.net.
By: Lisa Beth Older, your Manhattan custody lawyer
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