A message to our clients about Covid-19 
Divorce

Divorced Parents Face Uncertain Holidays as Covid Limits Travel and Gatherings

With public schools quarantining students, many divorced and separated parents struggle with family gatherings and holiday travel plans.

Since the earliest day of the Covid crisis, family law attorneys have struggled to understand how the pandemic was impacting child custody cases. In March and April, many asked if Coronavirus fears were grounds for a parent canceling court-ordered parenting time. As the weeks have stretched into months, surprisingly few answers have emerged when it comes to parenting time and Covid-19. On one hand, family courts across the nation have continued to enforce parenting orders. On the other hand, many judges still seem reluctant to punish parents for actions taken based on sincere safety concern relating to the virus.

Adding to the complexity for divorced and separated parents have been patchwork of laws and regulations passed by states that require mandatory quarantine periods (often 14 days) for individuals traveling from out-of-state. Some states, like New York, have vigorously enforced travel restrictions with substantial fines. Most states, including Massachusetts, have adopted somewhat strict travel restrictions, but have largely declined to enforce travel-related quarantines. However, even in states with minimal enforcement, quarantine rules have had outsized impacts on children who are attending school in-person. Schools often want to know where students have traveled, resulting in real world impacts for children who have left the state.

With the holidays upon us, many of the complexities surrounding parenting time and Covid are growing more complex. In Massachusetts and nationwide, Covid infection rates are spiking even as good news on coronavirus vaccines have dominated the headlines. For many parents, answers seem few and far between after more than six months of pandemic living.

Massachusetts Probate Court Chief Offers Tips on the Holidays

On November 24, 2020, Chief Justice of the Massachusetts Probate & Family Court, Hon. John D. Casey, had a holiday message for Massachusetts parents. The message included a series of “tips” from a leading family law organization while urging Massachusetts parents to balance children’s safety with cooperation. Judge Casey’s message read as follows:

As we begin this holiday season, I reach out to encourage parents to continue cooperating with each other to ensure that children have safe, healthy parenting time. Although I do not know exactly what we will experience in the upcoming weeks, there is no doubt that the holidays will feel different this year. During this time of uncertainty and stress, it is even more important that parents focus on what is best for their children. Leaders of the American Academy of Matrimonial Lawyers and the Association of Family and Conciliation Courts created the following guide, “Navigating the Holidays with COVID-19: Create a Roadmap for Success”. It is my hope that these tips will help you prepare for the holidays. I wish you all the best during this holiday season.

The holiday planning tips from the AAMC and AFCC encouraged parents to plan holiday schedules in advance, follow the terms of court-ordered parenting plans as much as possible, share information between parents, and consider mediation if disputes arise. Left largely unspoken in the tips is the simple reality that determining what is safe and appropriate for children during this unique moment is history remains incredibly difficult.

Massachusetts Travel Restrictions Require Quarantine for Virtually all Out-of-State Travel

It is no secret that due to COVID-19, Massachusetts has implemented travel restrictions, much like other states. Currently, Massachusetts’ restrictions include the following:

All visitors entering Massachusetts, including returning residents, who do not meet an exemption, are required to:

As of the date of this blog, the only state that is not considered “high risk” for travel is Hawaii. Of course, these rules are subject to change, especially in determining which states qualify as lower risk or higher risk. As infection rates in Massachusetts climb, it begs the question: Is it really so risky traveling to neighboring states like Vermont when infections in Massachusetts are already so high? With ever changing rules and restrictions, as well as the number of infections increasing in nearly every state, it is important for parents to stay diligent and communicate about safety precautions heading into the holidays.

A key factor for Massachusetts parents to consider when it comes to traveling restrictions are rules at their children’s schools. If a child travels out of state for the holidays, will his or her school restrict when the child can return to in-person classes? Similarly, if a child is exposed to an to infected parent or family member during a holiday gathering, how long will the child’s school require the child to stay out of school? While families everywhere are grappling with these questions, the concerns are even more pointed for divorced or separated parents, where a parent’s decision can become an issue in contested custody proceedings.

Does Your Child’s School Require Quarantine for Out-of-State Travel?

As noted above, real world enforcement of supposedly mandatory quarantine rules remains spotty in most states. However, many public schools are strictly adhering to travel rules. Children who are attending school in-person hear directly from teachers and administrators that they are expected to disclose out-of-state travel. Accordingly, traveling parents must consider the following: Even if no state agency will enforce a mandatory quarantine rule against the parent or their children, avoiding a quarantine period from your child’s school could require your children to lie to the school about their holiday plans.

Regardless of how one feels about the efficacy of Covid quarantine rules, most parents would agree that instructing a child to lie to his or her school is a bad practice that should be avoided. Moreover, in the context of divorced or separated parents, a traveling parent should be aware that if he or she does not disclose the out-of-state travel to the school, the other parent might.

Although courts often remain flummoxed by how to react to individual parents’ decisions when it comes to Covid, there does seem to be strong consensus that parents (and children) should be truthful with children’s schools about compliance with mandatory quarantine rules, and that a parent who flouts these rules may face negative repercussions in Court. A parent who causes his or her children to needlessly miss school due to frivolous out of state travel may face consequences in Court. Similarly, if a household member tests positive for the virus, most courts have told parents to comply with local school regulations to prevent the further spread of the virus.

For parents planning on holiday travel, the first question ought to be: How will their travel plans impact their children’s schooling under current school policies?

What Are the Rules at Your Children’s Schools for Students Who are Exposed to Infected Individuals?

In June, Attorney Keyes blogged about what happens to parenting time when a parent is sick with Covid, writing at the time:

Typically, when a parent becomes ill with an infectious condition, parents can cooperate to temporarily change the parenting schedule to prevent the child from becoming infected and to provide the child with ongoing care. However, the lengthy recovery period for individuals infected with the coronavirus, and the risk that virus transmission poses for children – and the other parent who cares for said children – are having an impact on child custody. With many family courts closed to non-emergency matters, formalizing custody modifications can be difficult. For this reason, parents faced with a Covid-19 infection within the family are seeking resolve concerns over parenting time with the help of attorneys or mediators before seeking court intervention.

At the time of the blog, schools were not back in session yet. Today, many Massachusetts schools are at least partially in session, and virtually all schools are following Massachusetts Department of Health Guidelines when it comes to quarantining following exposure to infected persons. Parents who plan to bring their children to holiday gatherings should consider how a family member’s positive rest result could impact their children’s ability to attend school. For parents considering Christmas travel, it may be possible for a child to quarantine during the holiday break period before school resumes, but parents deemed to have recklessly exposed a child to infected family members may face consequences in Court or with their children’s educational providers.

Resolving Disputes Over Holiday Parenting Time is Exceptionally Difficult During Covid

In matters contested custody matters, it is often difficult for parents to set aside their differences and work together during moments of stress. Parents who view Covid regulations as a means of controlling the other parent may abuse the process. Conversely, parents with strong feelings about the virus may disregard the legitimate concerns of the other parent. With absolutely no precedent for a pandemic, the Probate and Family Court can offer little guidance on this issue except on a case-by-case basis; and, with the Probate and Family Court potentially facing another shutdown, these smaller, limited parenting issues are not often taking precedence on judges’ dockets. Without clear guidance from the courts, parents are left without answers as to how their actions may affect future filings.

At this time, there is no clear rule regarding how a given Probate and Family Court judge may handle a case where one parent was deceitful or did not follow the Massachusetts regulations. A parent who willfully ignores the Massachusetts regulations, causes a child to miss school, and/or recklessly places the other parent’s home or employment at risk, could face serious consequences in Court. Then again, with Covid rates spiking statewide, many judges may be reluctant to “play doctor” for individual parents. Even if a judge does not rule directly on a parent’s incautious actions, the ramifications of the parent’s decision may affect how the judge decides broader custody issues in future proceedings. Whether ignoring regulations will warrant a change in orders or judgments may be unclear, but most parents would be well advised to avoid the risk.

Many Parents Have Different Perspectives AboutCovid

With the holiday season upon us, many people seek to travel, whether internationally, nationally, or locally, to spend time with families. There could be a large divide between parents as to what is deemed to be appropriate travel, how many people can gather safely, and whether an adjustment to the holiday schedule is warranted. By way of example, if one parent were scheduled to have time with the children over Christmas break this year, and typically travels internationally on their year, would a swap be appropriate? Or would that traveling parent simply adjust the plan? More frustrating is, if the parents cannot agree, is this something a judge would entertain with their already backed-up schedules?

Practically speaking, without being able to simply run into court on an “emergency” it is best to try and predict if these are issues you need to address and do so earlier. Whether it means amending your plans for the holidays, or amending parenting time, waiting until the last minute to do so will only exacerbate the issues.

About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. She is also a mediator for South Shore Divorce Mediation.

Schedule a consultation with Nicole K. Levy today at (781) 253-2049 or send her an email.

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