The case of Bertha Mayorquin, M.D., scared a lot of parents. A court awarded the New Jersey physician’s ex sole custody after he argued that her work with patients would expose their children to COVID-19. And Dr. Mayorquin wasn't the only one: Others reported parents with primary custody refusing visitation because of the pandemic, while US Weekly fans read about an antibody testing squabble between baseball’s Jim Edmonds and his ex-wife, a Real Housewives of Orange County alum. The overarching impression these incidents leave? That almost all kids whose folks have split up live with one parent and only visit the other, and that divorcées are seizing the opportunity presented by a public health crisis and closed courts to deny former partners access to their kids. While some families undoubtedly fit this bill, experts say the narrative doesn’t paint a complete picture of how co-parents and the courts have handled school closures and stay-at-home orders.
For starters, a judge issued the temporary order against Dr. Mayorquin late on a Friday in light of her ex’s underlying medical condition and the fact that her lawyer couldn’t be reached. It was reversed the next Monday. A Florida ER nurse with a similar story also regained custody in a matter of days. And plenty of families of essential workers — like that of Angelica Houston of San Jose, California — have decided, together, that the benefits of stability and continued interaction with all parents outweigh the risk of exposure. Her 13-year-old’s father could have demanded she stay with him full-time, since Houston’s husband is a firefighter, but they talked about it instead and decided to maintain their 50-50 custody split.
That’s what should happen, according to the judiciary. Though guidance hasn’t been issued in every county, many courts across the nation have stated that concern over COVID-19 is not, by itself, sufficient reason to deny parenting time and that custody agreements should remain in force as if schools were still in session, unless parents agree otherwise. In most of the cases that have come before judges, courts have “restored possession to the parent displaced by the other parent,” says Susan Myres, a lawyer in Houston and president of the American Academy of Matrimonial Lawyers. Lawyers are advising their clients accordingly, and retired Connecticut judge Lynda B. Munro says she can’t imagine that parents making a custody grab “represent anything more than a small minority of the population.”
In many cases, we’re even seeing increased collaboration with divorced parents appreciating each other now more than ever. “Many parents are working from home, and they need the relief,” says Steven Mindel, managing partner of Feinberg Mindel Brandt & Klein, LLP in Los Angeles: “They’re starting to realize that the other parent isn’t a bad babysitter.”
Katy Duhigg and her ex-husband Ryan Kennedy live nine miles apart in Albuquerque, New Mexico, where they evenly share parenting responsibilities for their 6-year-old. “When we were first divorced, we were the epitome of high-conflict,” Duhigg says, but twice during the pandemic she turned to Kennedy and his wife for support while self-quarantining. Once, she had flu-like symptoms. Then she had to stay in the hospital with a sick child who had no caregiver available. Both times, Duhigg says, her co-parents did “everything they could to facilitate communication between my son and I multiple times a day.”
Kennedy thinks the situation hasn’t just worked out for his son; it’s been ideal. “Having two homes during a pandemic is a big benefit," she says. "Unlike a lot of his friends, he still gets a good variety of experiences between our two households — one by the mountains, one by the river — and I think it's helping him cope.”
Stories like theirs and Houston’s reflect big changes in the lived experience of children whose parents have split. Because national statistics on child custody aren’t yet available, Maria Cancian, Dean of the McCourt School of Public Policy at Georgetown University, says she and other economists have had to look at data from individual states like Wisconsin (it’s fairly representative of America as a whole and keeps good records). Her work indicates that upwards of 80% of cases awarded sole custody to the mother in 1986. Now, all states have a law saying something like “a child is entitled to periods of physical placement with both parents when possible.” By 2008, mother-sole custody was awarded in only around 40% of cases in Wisconsin. And as of 2017, 50% of kids in divorced families there spent more than a quarter of their time with each parent.
The way in which shared time is apportioned has also changed. Courts used to order joint custody set-ups such as mother-during-the-school-year-father-over-the-summer, six-months-on-six-months-off, and alternating months (or even years). Many families today, including LGBTQ ones, still use the every-other-weekend model that was popular in the 1980s, but a significant number share time more fluidly with weekday home switches (think Daddy on Sundays, Mondays, Thursdays, and Fridays; Mommy on Tuesdays, Wednesdays, and Saturdays) and last-minute changes of plan.
Before quarantine, Nikki DeBartolo and Benjamin Heldfond’s son switched between their two Tampa, Florida homes roughly every fifth night, depending on work travel. Once the shelter-in-place order was issued, the couple agreed their high school sophomore should maintain the same rhythm but spend his school-day hours at DeBartolo’s since his younger siblings at Heldfond’s place are more adored than they are quiet. Heldfond says: “From an ego standpoint, I could have reacted like, ‘Oh no, it’s my time, he’s fine here,’ when really what was best for him was to go to Nikki’s.” The two agreed on standards as well as schedule: No friends, no house cleaners.
Of course, it’s easier to tackle the unexpected harmoniously when you already have a strong co-parenting relationship. In October 2019, DeBartolo and Heldfond released their book, Our Happy Divorce, about how choosing to relinquish resentment made them better, more fulfilled people. As they wrote it, Heldfond says, “We’d get in a fight, and Nikki would tell me, ‘Stick the book up your butt’ or ‘I’m not doing your f’n book.’” His bottom line on putting your kids’ needs first? “If we can do it, anybody can do it.”
As counterintuitive as it may seem, what with the many stresses brought on by the pandemic, this time without school, extracurricular activities, and other competing demands on a child’s time may be ripe for turning over a new co-parenting leaf. Scarcity can drive rigidity, but now there are more hours to go around. Plus, says Bari Weinberger, head of one of New Jersey's largest family law practices, “Parents find themselves in a situation where they suddenly have much more flexibility.” Those with jobs that once required travel and face-time at the office may be able to spend weekday mornings with their children for the first time.
But not everyone lives seven houses from each other like DeBartolo and Heldfond, and many essential workers are clocking more hours than ever. Some family ecosystems struggle with new logistical and emotional problems heaped on top of old ones. Most parenting plans — like the one Kelly Glass, a writer and editor who lives in Illinois, had in place for her 4-year-old — aim to transition children from one household to another via school with one parent dropping off and the other picking up. Others use libraries or cafes as neutral hand-off spots. That’s no longer an option. Many worry about the other household’s level of exposure, especially when there’s a second set of children traveling between two homes, or the risk inherent in certain types of transit. In some situations, a kid’s best interests compete, with physical health arguing in favor of limiting contact and emotional wellness on the other side of the ledger.
Gayani DeSilva, M.D., lives in Orange County, California with her 14-year-old son. Ordinarily, her son visits his dad in the Southwest for spring break in even years. This April, the child psychiatrist and her ex decided to put safety first and not fly him out, with father and son spending time together via phone or FaceTime. But next year, instead of remaining with DeSilva for spring break as scheduled, he’ll go see his dad. That’s essentially what a March 19 joint statement from the American Academy of Matrimonial Lawyers and the Association of Family and Conciliation Courts urges parents to do. “Be creative,” use video chat, and “provide makeup time” are three of its child-centered recommendations.
Following them can produce some serious silver linings. Glass, the Illinois writer, and her soon-to-be ex-husband currently alternate full days. But since he’s a teacher, she says, “Come summer, he will actually take up the bulk of the daytime child care so I can work.” Now that school-based transitions are off the table, “My son gets to see us all together as a family interacting with respect,” she says. “Even if just for five minutes at a time, I think it’s really good for him.”
Some parents with multiple children have staggered their kids’ schedules to provide one-on-one time for each. And others … well, some stories are remarkable. Olivier Ledru divorced in 2015. When his ex-wife invited him to spend quarantine with her and their two children at a house in the French countryside, he hesitated. Ultimately, he joined them, and the adults started taking walks together. With the benefit of five years to grow, they’ve decided to rekindle their romantic relationship.
Despite the inspiring nature of these tales of cooperation, many lawyers urge careful consideration when it comes to reworking a schedule. True, judges will not smile upon a parent who withholds custody. “You’ll see a bunch of motions filed after this,” Mindel, the Los Angeles lawyer, says, and higher timeshare parents who have been unreasonable will be penalized. But what about a parent who ordinarily has 70% time yet agrees to 50-50 during quarantine? “The parent who had the lower timeshare would have a very strong argument to continue the 50-50 going forward,” Mindel says. So being flexible and granting a co-parent’s request for more time is “risky from a trial strategy point of view, but on the other hand, from a parenting point of view, it might be the best thing for everybody,” he says.
Trade-offs and judgment calls are being made. In hazarding an educated guess about where most parents are landing, Munro, the retired Connecticut judge, says we have to keep another thing in mind: “In normal, non-COVID-19 times, roughly 85% to 90% of parents separating find ways to work out their differences [without court intervention]. There's no reason to believe that this statistic should vary during this public health crisis.”
Many are surprised to learn that the most up-to-date research shows that divorce is not per se bad for kids. What does lead to negative outcomes is having parents with a high-conflict relationship, whether they’re together or apart. It’s a sad truth that distant or contentious relationships remain the norm for divorced co-parents, says Robert Emery, Ph.D., author of Two Homes, One Childhood, but more and more people these days recognize that the way parents handle themselves will decide what impact a split has on a child’s life. Some co-parents remain unyielding during quarantine. But many are coming to the same conclusion as DeBartolo and Heldfond: Truly cooperative co-parenting isn’t just best for the kids; it can make parents’ lives better too.
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