The mother keeps throwing New York City dinner parties, and the father worries their kids might contract COVID-19. What’s a divorced couple to do in the age of social distancing?

This one chose the time-honored route and went to court – by phone, of course. In the emergency conference, the judge rebuked the mother but left the custody arrangement intact.

This clash, recounted by New York family lawyer Marilyn Chinitz, illustrates the treacherous terrain facing the 8.3 million American children whose divorced or separated parents share responsibility for raising them in the pandemic.

These families are discovering that the coronavirus isn’t the only thing that’s novel these days. So are the legal issues it is raising for a fraught realm of divorce law: joint custody.

Many courtrooms are closed, and judges are primarily hearing emergency cases involving domestic abuse or other imminent dangers. So lawyers and mediators across the country are stepping in to referee already contentious relationships.

Chinitz, a partner at Blank Rome LLP who represented the husband in the dinner-party case, said judges are delivering a clear message to couples: “Don’t forget I’m going to be deciding this custody case when it’s all over, and the first thing I’ll look at is which parent is providing access to the other parent and who isn’t.”

Some judges and lawyers counsel opportunistic parents against using the crisis to keep their kids away from former spouses or from shirking their court-ordered child care duties. Actions now could influence future custody hearings after the outbreak subsides, they say.

“The wheels of justice can turn slowly, but they do turn,” said Emily Miskel, a district court judge in Collin County, Texas. “We’re warning parents that try to play games and put conflicts with adults before their children’s best interest.”

Miskel stepped in after North Texas schools announced they would extend spring break to prevent the virus’ spread. Divorced parents immediately began dialing their lawyers. What does this mean for child custody, they asked?

Most parents without primary custody had their children during the 2020 school break; in Texas, the standard visitation schedule gives noncustodial parents that right in evenly numbered years. But with recent school closures extended indefinitely, judges were forced to make a quick decision.

In mid-March, Miskel helped write a directive to keep visitation based on previously published school schedules and asked parents who didn’t have primary custody to return the kids to those who did.

“If school doesn’t resume, and people went by the plain technical language of the court order, some parents thought maybe they wouldn’t see their kids for months and months,” Miskel said.

The Supreme Court of Texas issued two statewide orders, which ruled that previous custody schedules remain in place unless parents mutually agree otherwise. Shelter-in-place orders and other movement restrictions don’t affect visitation schedules or child drop-offs.

Most other states haven’t issued decrees on custody issues, but judges around the country are putting out similar directives.

“Parental behavior today can affect judicial decisions in the future,” Jeffrey Sunshine, a New York Supreme Court justice wrote last week in an editorial in the New York Law Journal. “Those who think that there is a lack of consequences to not conducting themselves appropriately during this crisis are wrong.”

In an interview, Sunshine said he wanted attorneys to understand how judges would perceive parent behavior. There’s a precedent in New York case law for using previous actions to help determine custody decisions.

Lawyers caution that custody decisions in the pandemic will be more gray than black or white – and complicated by the limits judges face in convening virtual or phone hearings.

Then there’s the raft of new questions courts are likely to confront: What happens when parents lose jobs due to quarantine decisions? Will they still owe the same child support? What if they can’t pay rent? If schools close through the rest of the academic year, how could that change who gets the kids for summer vacation?

Lawyers and judges say many families will have to get creative by offering virtual hangouts when meeting in person doesn’t make sense. Others may have to alter arrangements because of exposure to the virus.

No one has a bigger challenge than doctors and nurses who risk infecting their kids. Brandi Gestri, a primary care physician in Brewster, N.Y., has primary custody of her 12-year-old daughter. But, in March, she turned to her ex-husband for help.

Gestri works at a New York medical clinic, where she has administered coronavirus tests at a drive-through center in the parking lot. She feared exposing her child. Her ex-husband, a lawyer who has since remarried, could do his job from home and help their daughter with remote learning. The couple, who divorced in 2015, didn’t go to court to make the temporary visitation changes. They just worked it out on their own.

“We’re trying to make an abnormal situation as normal as possible,” Gestri said. “How we’re getting along now is nothing short of a true miracle.”

Gestri said the idea of not seeing her daughter every night was gut-wrenching, yet also a testament to the power of human interconnectedness. Her daughter understood that lesson, as she wrote in a note she left on her bedside table before leaving to stay with her father: “I know I am going to miss you. I need to be brave and strong, so you can take care of people.”

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