Divorced and separated parents struggle to mediate disagreements on their own.
By Jill Waldbieser
The New York Times
November 11, 2020
My ex and I aren’t friends — amicable might be pushing it — but in the four years since we split, we have navigated new homes, new partners and our 6-year-old son entering the public school system with minimal drama. When the pandemic hit and schools shut down, I almost felt guilty about my ability to ship my kid off to his father’s for five-day stretches while married friends lost sleep and fought with their husbands about whose turn it was to supervise virtual geometry.
Then, in late August, I got word that my son’s school district would be opening special education classrooms early. My son, who is deaf and on the autism spectrum, would have the chance to go back to school, with his real teacher, in a real classroom, with his peers, for six hours a day. I’ve never won a lottery but at that moment I knew what it felt like.
I was soon deflated to learn my ex didn’t share my enthusiasm. He pointed to the health risk, not only to our kid but also to my former in-laws, who helped him with childcare. For that reason, my ex hadn’t missed a day of work since the pandemic began, nor endured the great pleasure of trying to teach a kindergartner who wouldn’t sit still for more than a few minutes at a time how to read via Zoom. We spent precious days going back and forth with the school start date looming, it became clear neither of us was going to budge. “What happens if we can’t agree?” he asked. What indeed.
With no courts to turn to, parents relied on ‘self-help’
Our dilemma wasn’t unique. The pandemic and sudden shutdown had effectively stranded parents who were divorced or separated without their usual resource: the legal system. “In mid-March, courts closed and there was no access to anything by anyone for some time,” said Michael A. Mosberg, who practices family law in Manhattan. Barring a life-or-death emergency order, there was no judge, no mediator, no referee. This was, for many co-parents, effectively like sticking two quarreling kids in a room and telling them to work it out themselves. Parents like me had to rely on open and constant communication with their former partners — you know, the thing that worked so well when we were married.
Only a few states, including Texas, even released statements instructing parents to continue to follow their court-issued custody orders. This lack of clear legal guidance opened the door for some parents to exercise what the law refers to as “self-help” — essentially taking matters into their own hands — according to Meredith Johnson Harbach, a professor of family law at the University of Richmond School of Law in Virginia.
In one such case, Harbach described, a mother who was anxious about Covid decided to skip several of her daughter’s court-ordered visits with her dad and have her video conference with him instead. The dad asked that those missing in-person visitation days be made up at a later date, and when the courts reopened and heard the case, they agreed. “They ruled that a generalized fear of the pandemic is not sufficient reason to violate or modify a court order,” said Harbach. “Courts are generally loath to make modifications because it interrupts continuity and stability for the kids.” This has held true during other states of emergency, such as hurricanes and wildfires.
Of course, the coronavirus pandemic has presented some challenges you don’t typically see with other states of emergency. Challenges even the most prescient parenting plan may not have accounted for.
For Monica Ma, 42, a communications vice president in Danville, Calif., the pandemic marked the first time she and her ex-husband made any parenting decisions together since their split in 2016. “It was a very contentious divorce,” she said. “Everything has been through the courts and by the courts.” They continued to follow the custody arrangement to the letter, never discussing social distancing, masks or other pandemic-specific matters until the former husband of her ex’s new partner contracted Covid around Labor Day.
With children from both relationships moving back and forth between their homes, the risk of spreading the virus became very real, and Ma had her elderly parents living with her. “For the first time in four-and-a-half years, my ex and I were able to agree on how to handle the situation,” she said. “He was very willing to compromise and, truly, the kids came first.” She agreed to have them quarantine with their dad for 12 days (the longest she’d ever been away from them) and brought doughnuts and In & Out meals for them to share in a makeshift driveway picnic.
While Ma sees this as a hopeful step toward a better co-parenting relationship, there is still plenty she and her ex don’t agree on. He’s much more open to play dates and wasn’t even having the kids wear masks until recently. And this is something couples will continue to struggle with. Can I take the kids to a restaurant with outdoor seating? What about indoor seating? Do they have to wear masks? Can they travel for the holidays? To say nothing of upcoming vaccines, which legal experts predict will be the next big battle to flood the family court system.
‘What’s in the child’s best interest’
During uncertain times, “these kinds of discussions are on the table even for families that live together,” said Sanam Hafeez, a psychologist and expert witness in child custody cases in New York. “Everyone has to be flexible because these are going to be ongoing conversations.”
As the divorced mom of twins, she stresses that even agreeable ex-partners should put their parenting plan, and any changes to it, in writing. “If your agreement is at all unclear, things can very quickly spiral,” she said.
A common catalyst for that spiral is when one partner starts seeing someone new. Under normal circumstances, adding a new romantic partner to the mix can intensify an already strained relationship between exes. But these aren’t normal circumstances.
“Not being able to control that other environment your child is walking into wasn’t as much of an issue before Covid,” said Jennifer Rankin, 48, an author and lecturer in Laguna Beach, Calif., who shares custody of her 10-year-old daughter with her ex-husband. She was still finalizing her divorce in March when her elderly mediator went MIA, so she had little recourse when she discovered that her ex had a woman or women staying at his place on his noncustodial days.
Normally, what a parent does on their noncustodial days is up to them, but when you’re talking about a virus that spreads through human contact, suddenly you have to consider all the potential risks to your child and anyone they come in contact with. Rankin told her ex she wanted to limit their daughter’s visits with him, but he only relented after hearing his daughter’s concerns about getting sick from her therapist.
As courts open up, in person or virtually, the law has continued to lean on the “what’s in the child’s best interest” standard. But Covid can muddy the waters even in that regard. “Uncertainty brings out anxiety in people, and throughout this pandemic, there has been very little clear-cut expert guidance on what to do,” said Rebecca Berry, a clinical psychologist at the The Child Study Center at Hassenfeld Children’s Hospital at N.Y.U. Langone Health. The virus has also affected different parts of the country in different ways at different times, which means that trying to find a universal standard for applying the law is next to impossible.
If you and your child’s other parent can’t agree on something, Berry suggested agreeing on what guidelines you’ll use or which experts you trust to make the decision for you. That can include your child’s pediatrician, teacher, therapist, the C.D.C. or W.H.O. Drawing on the advice of experts you both agree on is more neutral territory than the opinion of a friend or relative, and can make the decision feel like a joint one rather than one party saying, “We’re going to do it my way.” This was ultimately how my ex and I agreed on our decision to send our son back to school. We spoke to his teachers, aides, and pediatrician, then had a Zoom call with his therapists. They all seemed to think he would thrive in an in-person classroom, and so far, he has.
“Don’t approach the topic by spewing facts or telling the other parent they’re wrong,” Berry said. “Stay open and be inquisitive. Sometimes if the parent at least feels their perspective is being heard, that can assuage a kneejerk reaction to deny a request.”
And remember, these are temporary changes — you can both re-evaluate and negotiate anytime. But courts frown on parents who take matters into their own hands, regardless of the circumstances. “Don’t be shortsighted,” said Mosberg. “If a judge determines that you acted in your own interest above that of your child or co-parent, it could affect your ability to be involved in decision-making long term.”