Imagine that you are the residential custodial parent of two children, and you were divorced from the other parent years ago. You and your ex-spouse signed a settlement agreement that gave the other parent certain parenting time rights away from your house. There was never any major problem with parenting time in the years since the divorce occurred. Your ex-spouse is considered an “essential worker” in these times of coronavirus. You just learned that the place of business where your ex-spouse was employed had multiple people test positive for COVID-19, and the employer gave guidance that all other employees, including your ex-spouse, should be “quarantined”. Your ex-spouse calls you and says that he or she still expects to see the children for parenting time during the quarantine period. You are mortified as you believe this will place the children at risk. What do you do?
There is no doubt that this issue has arisen in countless situations in the state of New Jersey and elsewhere. You may believe that you have the right to simply tell your ex-spouse that the children are not going to his or her house for the foreseeable future, as you believe that this is in the best interests of the children. Unfortunately, this is not a position to take that I would recommend, nor is it a position that has been endorsed by the courts of New Jersey.
New Jersey is very much against the concept of “self-help” wherein a party makes decisions on his or her own, especially over the objection of the other party. In the situation described above, you have not only gone against the wishes of the other parent, you are actually in violation a “court order” by withholding parenting time. While the situation may invoke sympathy from others, it is never a good idea to make decisions affecting your children without either the consent of the other parent or a court order.
This brings me back to my original question. What do you do? Obviously, the starting point should be a dialogue with the other parent. Courts will always look to see if the parties have attempted to work issues out on their own before one party or the other seeks relief from a judge. In every divorce and custody case I handle that was settled before a trial, the judge informs the parties that he or she is glad that the parties have worked issues out on their own, and commends the parties for doing so. Even if you believe you have the moral high ground, judges are duty bound to examine both sides of the situation. If you have a situation that arises like the one described above, talk to your ex-spouse. Maybe there is a solution that would satisfy the other parent and also keep the children safe in your mind.
It would be foolish to assume that every case would work out just by the parties talking. The ex-spouse in this case may say “I feel fine, I didn’t have much contact with the people who tested positive and I want my parenting time.” The two of you may have very different views about coronavirus and quarantine. I know that I have personally had more discussions in the last two months about who to see in my office, where to go for walks, and when to where a mask then in the rest of my life combined.
So what do you do if you can’t or won’t reach a resolution with the other parent, even if you tried to be “reasonable” in your mind? Well, the courts are “open”, even if judges are still working remotely. If you believe that you have an emergent situation and it cannot be resolved, my advice would NOT be to simply ignore the issue and wait for the other parent to bring the action first. Contact an attorney to discuss your particular situation. I also strongly endorse as well the concept of “mediation”, where both parents can bring their issue to an attorney who represents neither party, but who can help try to find solutions. I have successfully mediated many cases where I was told that there was “no hope” of a resolution, but where one was reached with the cooperation of both parties.
There is no easy answer to the question “what will happen if I go before a judge”. These are very strange times. Even judges may struggle to find a solution that works. Judges are bound to always place the best interests of the children first. I believe that if a judge thought that a parent dealing directly with coronavirus issues is being unreasonable, the judge is going to protect the children. Conversely, if a judge perceives that parent is being unreasonable and is using coronavirus as an excuse to withhold parenting time, it will not bode well for that parent. The best foresight I can give is that the judge will carefully examine the specific facts of your case. No two cases are the same. If you believe that the children would be endangered by parenting time, which is a right belonging not just to the other parent, but also to the children, you better have a reasonable rationale when you go before a judge. Likewise, if you live with someone else who has tested positive and you insist on parenting time anyway, you better have good cause to explain how this will not harm the children if they are at your house. Most judges are going to use common sense, guided by the principle that the best interests of the children always come first. Nevertheless, please make sure not to simply take matters into your own hands, even if you believe that you are right and the other parent is wrong.