Dear Cassie: I am divorced. My husband and I have three children of elementary school age. Under the terms of our Marital Settlement Agreement, I am the primary custodian of our children, and my ex-husband has parenting time with them. My ex-husband and I do not see eye-to-eye on what our children should be exposed to in light of the coronavirus pandemic. My ex-husband planned a vacation with our children outside the country this summer. He has also indicated that he wants to take the children to restaurants and concerts once they re-open. Can I withhold the children from him, to protect their health?
The coronavirus pandemic has presented new and unique challenges to all families. The same is true with regard to the field of family law. There is no legal precedent in the area of family law for an occurrence like the stay-at-home order under which the State of New Jersey is currently operating, and the impact it may have on custody and parenting time.
As a general matter, when going through a divorce, parents determine the rights and responsibilities they have while raising their child. This includes the following:
The right to custody. This includes physical custody, legal custody, or both. Physical custody determines the parent that the child lives and spends most of their time with. Legal custody gives a parent influence over the important decisions that are made regarding the child’s upbringing.
The right to visitation. Even if a parent does not have primary custody of a child, he or she can still have visitation rights. Parents can set up a parenting plan in different ways that allows them to both be able to see their child.
The rights that a parent has to their child do not change as a result of a virus outbreak. It is understandable that a parent wants to prioritize the safety of his or her child. However, he or she is not able to change a custody agreement or visitation schedule unilaterally, without the permission of the other parent or the court to do so. This means that if a parent does not want his or her child to see their other parent due to fear of exposure, he or she is required to reach an agreement with the other parent or request a modification of the custody and parenting time arrangements from the court. Until it is granted or agreed to, both parents retain the same rights to their child as they always have.
That said, if a parent is able to establish that the other parent is seeking to expose the child to risk, a court may be willing to modify the custody and parenting time arrangements, even temporarily, to protect the best interests of the child.
If you are experiencing a custody or parenting time conflict with your spouse or ex-spouse as a result of the coronavirus, you should seek the advice of matrimonial counsel.
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Cassie Murphy is a divorce and family law Partner with the Law Offices of Paone, Zaleski & Murphy, with offices in Red Bank and Woodbridge.