The Undetermined Fate of ‘Common Parenting Issues’ in the Post-COVID-19 World
During the coronavirus outbreak (COVID-19), sifting through the vast array of articles, blogs, webinars and the like about the impact of the pandemic on various sectors of the legal profession—e.g., bankruptcy, trusts and estates, employment, matrimonial—has been part and parcel of the practice of law. In the matrimonial context, three issues in particular have drawn considerable attention:
(1) the extent to which COVID-19 should or should not alter parental access;
(2) applications to modify spousal and/or child support due to changed economic circumstances resulting from COVID-19; and
(3) in the business valuation context, when and to what degree COVID-19 was “known or knowable.”
This article addresses motions to modify custodial arrangements in a post-COVID-19 world, with an emphasis on one seminal question: Will COVID-19 impact the ability of mothers and fathers in the midst of a custody dispute to address and resolve—without input from the other parent—what courts have labeled “common parenting issues”?
As the legal backdrop for this discussion, I turn to the decision of Justice Richard A. Dollinger in Tamoutselis v. Tamoutselis, 2020 NY Slip Op 50435(U), Sup. Ct., Monroe Cty. (April 1, 2020). In Tamoutselis, the mother moved, post-judgment, to modify the access schedule set forth in a March 2019 custody agreement in respect of the parties’ two, twin children, both age eight.
The many alleged bases for modification included, inter alia, on one occasion, the children called their mother “crying because their father had threatened to take away hockey and dance, which were the children’s favorite activities”; after the children told their mother they were “upset” because their father’s girlfriend was present during a visit to their father, the father then “imposed a discipline on his son for failing to follow the father’s instructions and removed his access to his iPad for two months”—an “extremely excessive punishment” according to the family therapist (as alleged in the mother’s supporting affidavit); and when the children attended a professional soccer game with their father and his girlfriend, the father insisted that his children say “hi” to his girlfriend.
A “parent seeking to modify an existing custody order bears the burden of demonstrating a sufficient change in circumstances since entry of a prior order to warrant a modification in the children’s best interests.” Tamoutselis, at *2. As explained by Justice Dollinger, the difficulty New York courts have faced is “differentiating between events that constitute a change in circumstances” versus “common parenting issues or isolated events that do not warrant a change in custody.”
While the parties’ custody agreement in Tamoutselis provided that each party would “respect the other’s disciplinary protocol,” the court’s decision denying the mother’s application also reinforces that the parent with whom a child or children is spending time should have the right to make what matrimonial lawyers often refer to as “routine daily decisions” without the need for input from the other parent. Indeed, the decision states, in part, as follows:
A parent refusing to allow a child to engage in activities is a form of discipline [] as old as Methuselah. The justification for such discipline rests exclusively with the parent who administers it and the wife agreed to respect the father’s ‘disciplinary protocol’. Id. at *7.
Parents can choose to discipline their children in their own way: the mother here has a style and the father does, too. The Court will not pick sides, especially when the parents agreed to respect each other’s protocol. Id.
As to the father’s introduction of his girlfriend to the children, while the court acknowledged that same “can cause distress to children at any age,” the court nonetheless concluded that it would “not interfere with [the father’s] personal choices, other than to suggest that a child’s love, once lost, may be difficult to recoup.” Id. at *9.
While COVID-19 was not a basis for the mother’s application to modify in Tamoutselis, the question remains whether a parent’s routine daily decisions during the time a child spends time with him/her include any or all decisions that necessitate a judgment call in respect of COVID-19. Stated differently, if a parent moves to modify custody based on the other parent’s day-to-day decisions surrounding COVID-19, will courts treat such decisions as within the realm of “common parenting issues” which should be resolved by one parent’s “personal choices”?
The list of decisions to be made for children in respect of COVID-19 can go on and on. On one end of the spectrum, there is the decision of whether or not to send a child to summer camp (particularly sleep-away camp), or to a brick-and-mortar school—assuming remote learning is not the only option. While these may be more appropriately characterized as major decisions, several other decisions that parents are already making on a day-to-day basis would ordinarily (in a non-COVID-19 world) be characterized as routine. For example:
- Should your child have in-person contact with his or her friends, and if so, must they always be six feet apart?
- Should your child spend time with a friend in his or her home versus staying outdoors?
- Should your child ride in your friend’s parents’ car?
- Should you take your child food shopping or to enter other establishments that are open during the pandemic and beyond.
In Tamoutselis, the court denied the mother’s application in part due to a lack of “any independent and material evidence that the children have encountered difficulties in their lives as a result of what the mother characterizes as the father’s alleged missteps.” In any of above examples, if a parent’s decision ultimately leads to a child getting sick, then the question becomes whether or not that parent’s decision was a “misstep[]” or alternatively, sufficiently contrary to the child’s best interests to consider a motion by the other parent to change custody. A thoughtful analysis will be required in order to assess whether and to what extent a parent’s historically routine (but perhaps no longer so in these unprecedented times) decisions surrounding COVID-19 issues merit consideration in the context of an application for a change of custody.
“The Undetermined Fate of ‘Common Parenting Issues’ in the Post-COVID-19 World,” by Alan Feigenbaum was published in the New York Law Journal on November 13, 2020.
Reprinted with permission from the November 13, 2020, edition of the New York Law Journal © 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or reprints@alm.com or visit www.almreprints.com.