Seven Guidelines for Parents Who Are Divorced/Separated and Sharing Custody of Children During the COVID19 Pandemic

Leaders from the American Academy of Matrimonial Lawyers (AAML) and AFCC have released guidelines for coparenting during the COVID-19 pandemic. 

1. BE HEALTHY.

Comply with all CDC and local and state guidelines and model good behavior for your children with intensive hand washing, wiping down surfaces and other objects that are frequently touched, and maintaining social distancing. This also means BE INFORMED. Stay in touch with the most reliable media sources and avoid the rumor mill on social media.

2. BE MINDFUL.

Be honest about the seriousness of the pandemic but maintain a calm attitude and convey to your children your belief that everything will return to normal in time. Avoid making careless comments in front of the children and exposing them to endless media coverage intended for adults. Don’t leave the news on 24/7, for instance. But, at the same time, encourage your children to ask questions and express their concerns and answer them truthfully at a level that is age-appropriate. 

3. BE COMPLIANT with court orders and custody agreements.

As much as possible, try to avoid reinventing the wheel despite the unusual circumstances. The custody agreement or court order exists to prevent endless haggling over the details of timesharing. In some jurisdictions there are even standing orders mandating that, if schools are closed, custody agreements should remain in force as though school were still in session.

4. BE CREATIVE.

At the same time, it would be foolish to expect that nothing will change when people are being advised not to fly and vacation attractions such as amusement parks, museums and entertainment venues are closing all over the US and the world. In addition, some parents will have to work extra hours to help deal with the crisis and other parents may be out of work or working reduced hours for a time. Plans will inevitably have to change. Encourage closeness with the parent who is not going to see the child through shared books, movies, games and FaceTime or Skype.

5. BE TRANSPARENT.

Provide honest information to your co-parent about any suspected or confirmed exposure to the virus, and try to agree on what steps each of you will take to protect the child from exposure. Certainly both parents should be informed at once if the child is exhibiting any possible symptoms of the virus.

6. BE GENEROUS.

Try to provide makeup time to the parent who missed out, if at all possible. Family law judges expect reasonable accommodations when they can be made and will take seriously concerns raised in later filings about parents who are inflexible in highly unusual circumstances.

7. BE UNDERSTANDING.

There is no doubt that the pandemic will pose an economic hardship and lead to lost earnings for many, many parents, both those who are paying child support and those who are receiving child support. The parent who is paying should try to provide something, even if it can’t be the full amount. The parent who is receiving payments should try to be accommodating under these challenging and temporary circumstances.

Adversity can become an opportunity for parents to come together and focus on what is best for the child. For many children, the strange days of the pandemic will leave vivid memories. It’s important for every child to know and remember that both parents did everything they could to explain what was happening and to keep their child safe.

For more resources on co-parenting check out this blog post on How The Children’s Needs Can Guide The Parents.

Advice for Children

Client: “We told our teenager on Monday that we are separating. I am uncertain how to have read the expression on her face…maybe slight shock, or disbelief. We have had so many years of conflict, it’s hard to believe she was surprised! This has really unseated me…we went shopping on Tuesday and had a nice day, really some great moments, bopping around looking for cool stuff. But there was a pallor that was present all day.

“I want to be able to tell her why this happened, so she understands, but I don’t want to play the blame game. I can’t be completely honest, and so I think she is confused…and I am getting so stressed.

‘I don’t feel grounded when [my ex] is around, and I am sad and angry. Sad about all the losses, and also doing this to her when she is getting ready to go to college. Everyone is putting on their happy face but this is confusing.

My response: It’s always amazing to find out how much kids can be in their own heads, and not notice things going on around them. We think they know/sense what is going on between the adults – but they often do not. Being a teen especially, is an experience full of compelling drama – much more interesting than parents are!

best rules:

  • let her ask the questions – don’t bring it up nor volunteer information, other than what and as she asks you for it/about it.
  • remember that – psychologically/unconsciously – children feel that they are half their mother and half their father, so that if someone says ‘your dad is lazy,’ they hear it as “half of me is lazy.”  That can help to guide you to avoid the blame-game.
  • remind her that she didn’t do anything to cause this.

In my experience, children ALWAYS know the truth of their parents’ divorce.  She knows both of you, inside and out, and over the next 20 years she will ask more questions. There is time.

The challenge will be finding that balance between feeling you are being your authentic self – and protecting her.  She doesn’t need (nor want) details.  If you’re feeling sad – you’re allowed to tell her that, too.  It’s the end of a long relationship, and it’s very normal to have mixed and complicated feelings.  For all of you. But complain to your friends and your therapist – not to her.

The Children’s Needs Can Guide the Parents

I met with a couple who used mediation for their divorce, about 14 years ago, and wanted to resolve a conflict now for their restructured family. The mother emailed me to tell me that they were having trouble figuring out the credit that the father should get for the child’s room and board expenses while he is in college.

She implied that they were having a lot of conflict, and that the children spent almost no time with their father, and that the parents communicated infrequently, and only via text.

I feel nervous before the meeting, worried that the distance of the years that have passed would turn the whole thing into a screaming match. It turned out that both children have had problems, and that the parents have really pulled it together to support the children in a way that I found very moving.

The mother started out by saying that she also agreed that her receiving child support while her son is away at college, and she’s not feeding him, didn’t feel fair. This lowered the temperature in the room, because father felt understood, and he didn’t have to “fight” as hard.

They told me about how their son is having some challenges, and the mother found a boarding school program for him to attend. The parents weren’t speaking much at that point, so the mother just put together the money to pay for a year in boarding school. The father said, “she did an amazing job. She probably saved his life. I didn’t have the money to pay for my half of that school, but in the future, if I do, I will pay her back.”

Since they both acknowledged each other’s needs, the rest was simple calculation. We finished up, and they left. When I came out of my office, about 15 minutes later, I saw them standing together outside, up the block, talking to each other.

Fuel for Fights

People get into the worst fights when what they are fighting about is not what they are really fighting about.

I am working with a couple who have an extremely (unusually) hostile and embittered post-divorce relationship. I am working with them as a parenting coordinator, not a mediator – which means that I was appointed by the court, and have the power to make decisions, if there is a time-sensitive matter pending. Usually, during mediation, I don’t have the power to make decisions (and why should I? Those are not my kids).

This couple contacts me periodically to mediate disagreements, as they arise.

Recently, they reached out to me, because their child’s pediatrician recommended that the child see a psychiatrist. (‘Hurray,’ I thought, because after witnessing the amount of venom and rage that these parents express toward each other, I could only imagine how pulled-in-two that child is constantly feeling – great to give the child the support of a therapist.)

But now they are tussling – bitterly – over which psychiatrist to choose! The father works at a premier, top-ranked teaching hospital, and received some referrals to a couple of doctors affiliated with the hospital, by someone in his department. The mother now thinks that anyone in the hospital is automatically suspect, and will be biased in favor of the father, simply because he works there.

Conflicts are:

Will Dr. be biased in favor of the parent who pays? One parent has offered to pay if services are not covered by insurance.
Will Dr. be biased if one parent is employee of the same hospital at which Dr. is working?
Will the child be pressured by one parent or the other to choose a Dr. which he/she chose first?

And the real underlying conflict is the competitive battle that these parents remain locked in – who will ultimately “win?” Because – I would think that credentials and years of experience would give the doctor a presumption of competence.

The Draw of Conflict

To my mind, the costs of litigation and of fighting are so high – that I really can’t imagine deciding that I would rather fight than settle.  But I guess it mainly depends on how the conflict is framed – whether you feel that there is an important principle at stake.

If you’re going to fight about something having to do with the children, they will know that you are fighting in court, and they will know that one parent thinks the other is screwing them over (or both parents think the other is screwing them over) and they will feel pulled-apart and tormented and guilty, over being the subject of the parents’ conflict.

If a couple has true joint custody – 50/50 time division with the children – NY State still requires some payment of child support.

There are several options:

  • put in payments back and forth to each other – i.e., dad pays mom $100 on the 1st of the month, and mom pays dad $100 on the 15th of the month
  • net out child support payments, based on incomes – if dad would have to pay $1,000 per month child support to mom, under the statute, and mom would have to pay $800 per month to dad, then dad pays $200 per month to mom
  • analyze incomes and expenses, and allocate the shortfall equally
  • put in child support to agreement and divorce papers, and enter into a “side agreement,” signed 1 day after, where the recipient parent agrees not to enforce the order for child support.  This one is risky – because it’s really an end-run around the courts, and it’s hard to know whether it would be enforceable.

For someone who is very economically comfortable, but feels that there is a principle at stake – “if we both have the children 50% of the time, why should I pay child support?” –  is it really worth fighting about in court?  You will end up, very quickly, spending amounts on attorney fees that are similar to what you would spend by just paying child support.  And – in general – the courts are not too sympathetic to parents who don’t want to pay child support.

Even in a 50/50 time sharing case.

But – there is, I think, an unconscious fantasy that you will teach the other person a lesson.  That he/she will finally understand how hurt you were, or how wrong he/she is – when you show that you are willing to stake more money than is in controversy, to prove him/her wrong, and you right.

I don’t think anyone comes out of court feeling, “Wow, now I really get it, I was so wrong.”  In fact – I don’t think anyone comes out of court feeling, “Wow that was so satisfying, that judge totally understood me.”

In the divorce context, that is.

And then there is this article (from the website of Geneen Roth, Vol. 6, Issue 6):

I recalled something [my ex] said during a fight we had in a spectacular restaurant. “Why not think of all the times we’ve celebrated and all the times we have yet to celebrate as a bank account from which we can draw funds?” he asked. “Let’s put aside this fight, take some celebration savings out now, and replenish the fund when we get home.”

I remember looking from him to the mushroom tart on my plate, thinking, I could let this horrible fight go. I could enjoy this tart, and we could have a wonderful time.  Then I thought, ‘but if I let it go, I will be a wimp.  He doesn’t deserve to have a good time after what he’s done.  If I let go, he will win.’   I didn’t bother to ask myself what I would lose by holding on to my anger — I only figured that if he didn’t love me, the least he could do was suffer. So I said, “Forget it. It’s a terrible idea,” and ruined the evening for us both

Protecting Children From Conflict & Self-Blame

I was watching a movie the other night, (Future Weather) in which a 13-year-old girl came home from school and found a note from her mother saying, “I went to California. I left $50 in the drawer for you, for groceries.”

The girl lived in the house for a few days by herself, until her grandmother discovered her living alone, so she moved to her grandmother’s home.

Later in the film, she and her grandmother were bickering, and the grandmother said, “You know your mother wanted to get an abortion. Yup, she wanted to get rid of you, and I said to her, ‘over my dead body.’ Serves me right, now I’m stuck with you. What goes around comes around.”

This is one of the most horrible things I have ever heard someone say to a child! This child will never forget that statement, and never be rid of the feeling that she is the cause of all of the troubles of the adults in her life, she is the reason that her mother left to go to California.

I thought about my clients, who work so hard to protect their children from the conflicts between them, and who want their children to come through the divorce with as few scars as possible. I thought about the Child’s Bill of Rights, which I put into every agreement:

a. The right not to be asked to “choose sides” between the Parents.
b. The right not to be told the details of fights between the Parents.
c. The right not to be told “bad things” about the other Parent’s personality or character.
d. The right to privacy when communicating with either Parent.
e. The right not to be cross-examined by one Parent after spending time with the other Parent.
f. The right not to be a messenger from one Parent to the other.
g. The right not to be asked by one Parent to tell the other Parent untruths.
h. The right not to be used as a confidant regarding the difficult issues between the Parents.
i. The right to express feelings, whatever those feelings may be, or to choose not to express certain feelings.
j. The right not to be made to feel guilty for loving both Parents, or for developing a loving relationship with a new partner of either Parent.
Many of the parents I see are distraught over the pain their children will suffer, as a result of the divorce but – boy, it could always be worse.

Mediation v. Litigation

I was called in for a court-ordered mediation for a post-divorce couple, about to have a trial. Mother requested a custody change.

This couple are very wealthy – a walking advertisement for the idea that having a lot of money is a disadvantage when you’re getting divorced. (Because you can get sucked into litigation.)

They have been embroiled in litigation for 7 years, and have spent more than $500,000 in legal fees.

How could this happen? Here’s what I see:

1. Each has a feeling of entitlement – maybe a bit spoiled. “This offer is not perfect, so I won’t take it.”
2. Unrealistic experience of life? Is anything perfect? Do they feel – ‘my life isn’t perfect, but it’s supposed to be?’
3. Attorneys who see role as to fight – rather than to counsel. “If there is an argument to be made then it’s my job to make it.”
4. Parents who have little self-reflection or insight –
5. Always looking outside themselves for the solution – “I have this problem, and you need to solve it.” Passivity.
6. Part of the passivity is – not answering any questions themselves – constantly looking to attorneys to tell them what to do. They have delegated authority for their lives to their attorneys.

The mediation was actually immensely successful. During the weeks that we were working together, for the first time in 7 years, the couple celebrated a holiday with the children, peacefully and joyfully – they were able to sit in the room together.

Sitting down together, asking them what they are thinking and feeling, and brainstorming about goals are really different ways to approach the family situation (apparently) as contrasted what the attorneys have done with them for the last 7 years. We were able to resolve almost all of the outstanding issues between them.

Seeing Both Sides – A Challenge

Had an irate e-mail from a former client, who is now in litigation with her husband and was feeling (retroactively) that I was not neutral, but was instead biased in favor of her husband.

They were in litigation before they came to seem me – and came in for 6 hours of mediation, to try to settle their differences – but ended up back in litigation.

People often do feel that I’m ‘on their side.’ But what they don’t always see is that I’m also on the other person’s side.

In this case, the father really wanted more time with the child, and I was certainly sympathetic to that. The latest research shows, very clearly, that children who have good relationships with their fathers do fantastically better, in school and in life, than do children who have been cut out of their father’s lives (or abandoned by fathers).

In fact – even for children whose fathers just walked them to school on Mondays after week-ends – or fathers who attended parent-teacher conferences but otherwise never set foot in the school – get a much clearer message that their parents both feel that school is important. A little bit of dad goes a long way.

But – on the other hand – this guy was a kind of a loose cannon. He’d had his driver’s license suspended for speeding, and had in addition had several accidents, and he did not want to agree not to have the child in the car while he drove. He wasn’t even supposed to drive at all – no license! I tried to make him see that that wouldn’t go over too well with a judge, and he really didn’t get it.

(Was this narcissism – nothing I do can be wrong? Or stupidity. I don’t know – but came to the same thing – that dad might not have been a safe person for that kid to be with.)

Anyway – I reminded the wife of these things, and assured her that I had seen them – and she felt reassured that I was also “on her side.”

After sleeping on it…

After sleeping on it – i’m thinking that a lot of whether people can start out from a ‘fair’ position, or whether they start negotiations with an ‘extreme’ position, has to do with trust. If you really feel that the person on the other side of the table is vengeful, or out to hurt you – of course you have to take the most extreme position possible, to protect yourself.

The funny/puzzling thing about this couple, is that she was the one who had the affair, and yet she is behaving as if he is out to hurt her.

Of course that is puzzling to me, undoubtedly, because i don’t know all the circumstances. They know their own lives; if she feels he’s out to screw her (not in a good way) – then he probably is. Or at least that’s her reality with/of him.

Do you enjoy fighting?

I saw my cousin over the week-end. Her brother is a drug addict. Total drug addict, the kind who steals things from his parents, never holds jobs, is in & out of jail. She said her parents told her that they are planning to leave their house, when they die, jointly to her and her brother. She said, “Figure this out now, because he will fight me to get the whole thing, and I will just walk away. I am not going to fight.”

So funny to contrast that attitude with that of the couple who I saw this morning, who fought for an hour over child support; who – despite paying me a good bit of money to sit with them – would not let me get in a word edgewise.

The law in NY on child support is not completely clear when there is joint custody, and here, the children are spending 50-50 time with each of their parents. But the things that make this parent so sure that she is entitled to child support – despite the 50-50 schedule and the fact that their incomes are just about equal (48%, 52%, of total parental income), is that the nanny is always at her house during the day.

She has a point. Just about all the kids’ laundry is done there, they have playdates there, she lives in the school district of the kids’ school and dad does not, she has to keep groceries there for most of their meals (as well as feeding the nanny).

The father agrees that she has some extra expenses (which he did not agree with at first – but he has come around) and so should get some child support – but she was asking for the same amount she would have if she had the old-fashioned kind of schedule where the dad sees the kids every other week-end and once per week for dinner.

It seems to clear to me that that isn’t reasonable – why do they want to keep fighting? Why does each initially adopt the most extreme position? His – she needs zero child support – hers – she needs 100% of child support.

And she had an affair, which was the triggering event of their separation, and that always intensifies the situation. But she is nonetheless so engaged still with him, so intensely focused on him, so much wants him to understand her and her thoughts/needs/views of the whole thing.

And yet – I thought about my cousin. Because where does all this fighting get them?

I hope I can help them to resolve this.