Custody and Parenting Time during the Coronavirus Lockdown

*By: Victoria Paone Rosa, Esq.

It is no secret that the Coronavirus outbreak has made it difficult for people in the state of New Jersey and across the metropolitan area to continue their everyday lives. The Center for Disease Control (“CDC”) recommends that all people stay home to avoid the spread of the disease if they are able to do so. In addition, Gov. Philip Murphy ordered all non-essential retail businesses in New Jersey to close, with the exception of curbside pick-up pursuant to Executive Order #142. In some families, this can cause certain disruptions. This is especially so for those families with children who are going through a divorce or were previously divorced. Many parents fear that the global pandemic may throw a “monkey wrench” into the interim and final custody and parenting arrangements that were established prior to the Coronavirus lockdown.

What are custodial rights?

In New Jersey, there are two types of custody: legal custody and physical custody. Legal custody bestows a parent with the ability to make major decisions impacting the children’s health, safety, education, and welfare. In most cases, parents share legal custodians and such major decisions are considered and discussed in depth by both parents, and the children’s best interests is the paramount consideration when making these decisions.

Physical custody concerns a parent’s right to have the children reside at their residence. The Parent of Primary Residence (“PPR”) is the parent with whom the children spend the majority (more than 50%) of their overnights. The Parent of Alternate Residence (“PAR”) is the parent with whom the children reside when the children are not living in their primary residence. In situations in which parents share equal parenting time, there may not be designations of PPR and PAR.

Are my custodial rights limited during the Coronavirus lockdown?

While we are currently living in unprecedented times due to the Coronavirus, a parent may not engage in “self-help” and unilaterally modify a custody and parenting time agreement or Court Order without the permission of the other parent or the Court. This means that if a parent does not want their children to spend time with the other parent due to fear of exposure to the aforesaid disease, this parent must negotiate a modified agreement with the other parent or request a modification with the Court. Even if a parent files a motion to modify custody during the Coronavirus lockdown, in the absence of case precedence or any governmental directive or recommendation to the contrary, fear of exposure to someone infected with the Coronavirus alone, without something more, will likely fail to satisfy the “changed circumstances” standard associated with modification of custody and parenting.

Parents involved in custody and parenting time disputes will want to pay close attention to executive orders, guidelines, and other government directives concerning this issue. Individuals who are about to go through custody litigation should consult with an attorney about this complex matter, especially during these uncertain times. Litigants should be prepared to hire an attorney who is prepared to work expeditiously and to treat these cases with the importance that they deserve.

* (Editor’s note: Victoria Paone Rosa, Esq. is an associate at the Law Offices of Paone, Zaleski & Murphy working out of the firm’s Red Bank office, located at 120 Maple Avenue. Victoria’s professional history includes clerking in Monmouth County for the Honorable Mara E. Zazzali-Hogan for both the Family part, Chancery Division and Civil Division for 2016-2017. She is currently a member of the New Jersey State Bar, Middlesex Bar Association, Monmouth Bar Association and Aldona E. Appleton Family Law Inn of Court. Victoria limits her practice to divorce, child support, child custody, equitable distribution, alimony, domestic violence, alimony, palimony and all other family law issues. Her monthly column, “Divorce Hotline,” will serve to inform readers as to family law news, advice as to the divorce process, comment on recently published family law cases and more. Victoria is the recipient of the MCBA 2020 Young Lawyer of the Year Award. Paone, Zaleski & Murphy can be contacted at 732-750-9797.)