One emergency request to modify visitation came from a pregnant mother now living with her elderly parents, both of whom suffer from severe medical issues.
Another petition came from the New Hampshire Division for Children, Youth and Families seeking to temporarily suspend in-person visits between two siblings, one of whom is undergoing chemotherapy.
Judges anticipate it is only a matter of time before one of the state’s 28 family courts receives a petition calling for the immediate suspension of visits to a parent due to a positive COVID-19 diagnosis. But it hasn’t landed yet.
The coronavirus outbreak is causing New Hampshire families to second guess longstanding co-parenting and visitation agreements, which routinely account for holidays and school vacations but do not include a clause for what to do during a pandemic. While some divorcees have reached consensus with former partners on temporary modifications to existing parenting plans, others engaged in ongoing custody disputes say the health crisis further complicates an already contentious situation.
In families broken by abuse or domestic violence, experts say one parent may leverage coronavirus to further coerce an ex-partner or increase fear in the relationship. With communication or contact deemed unsafe, a resolution on child visitation without court intervention is likely implausible.
Family court judges told the Monitor last week that petitions seeking emergency relief to amend parenting plans and child support are starting to trickle in. While the numbers are manageable for now, they expect to see more requests in the weeks ahead, especially if New Hampshire’s stay-at-home order is extended beyond May 4.
So far, though, judges report that the vast majority of requests are being denied because they don’t meet the required legal threshold, Circuit Court Administrative Judge David King said. The petitioner must show that the child would likely be subject to irreparable harm for a judge to grant an emergency petition prior to a hearing.
“COVID-19 is not a basis in itself to modify a parenting plan,” King said. “As inconvenient as the parenting plan may be during this time, parents still must comply.”
Circuit Court Judge Susan Carbon said the courts are seeing emergency requests from parents who have primary custody as well as those with limited visitation. A recurring theme in those petitions is one parent alleging that the other doesn’t have proper protections in place to reduce exposure to coronavirus and, therefore, is not being mindful of the child’s safety.
“Non-custodial or non-residential parents are filing motions for contempt, saying the other parent is not giving me access to the child and that they’re being denied their time,” said Carbon, who has worked on domestic violence and child protection initiatives at the state and national level. “At the same time, custodial parents are asking to suspend the other parent’s visitation time because of COVID-related concerns.”
However, Carbon said it’s simply not enough for a parent to say, “I don’t want Susie to go to dad’s house because I don’t think he is taking this seriously.” She said the parent must illustrate through concrete examples what the other parent is doing and how that puts the child at immediate risk.
As remote learning became a new reality for Granite State students in mid-March, working parents started facing new stressors about how to maintain a job while also trying to supervise their child’s school day from home. It wasn’t long after that Gov. Chris Sununu issued a stay-at-home order and directed all nonessential businesses to close, raising new questions for divorced and separated couples now grappling with whether it is safe – or even permissible – to split their children’s time between two homes.
Moira O’Neill, director of New Hampshire’s Office of the Child Advocate, said parents likely don’t know what is happening day-to-day at the other house because there isn’t an open line of communication. Sometimes that is because the parents simply don’t get along. Other times it is because the relationship is complicated by a history of abuse, mental illness or substance misuse, she said.
“In some unfortunate situations, parents are weaponizing the risk of viral exposure because they just have toxic relationships and are attempting to build a case against the other parent in an ongoing custody dispute,” O’Neill said.
That tactic is being employed by perpetrators of domestic violence who view the pandemic as an opportunity to further abuse, according to victim advocates. Crisis centers have reported that offenders are using this crisis to seek primary custody. In other cases, parents who had visitation when coronavirus hit locally have refused to return the child to the primary parent.
Given these situations, family lawyers are seeing a boost in calls as more parents reach out for guidance.
“There is a tremendous amount of fear right now,” said Amanda Grady Sexton, public affairs director for the New Hampshire Coalition Against Domestic and Sexual Violence. “Court orders make clear that the courts in the state are still open and hearing these types of emergency petitions, but parents are reporting they are afraid to bring their concerns forward because they don’t feel judges are adequately addressing them.”
The Office of the Child Advocate, created in 2018 to oversee the state’s child-protection system, routinely receives calls from parents about child visitation and custody disputes. Because of COVID-19, the office has seen a spike in calls, too.
“Of the cases we have heard about, the courts appeared to have been fairly conservative in getting involved, instead ruling that the parents should work it out,” O’Neill said.
She encouraged parents who believe they have evidence that another parent isn’t taking the necessary health precautions during COVID-19 to call DCYF’s Intake Unit for guidance. From there, she said, DCYF will determine whether there is medical neglect or emotional maltreatment. She also advised parents to seek clinical support from the child’s pediatrician, local Family Resource Center or family support services through Waypoint.
“If a parent is clearly and consistently putting a child in harm’s way by refusing to follow social distancing or practice appropriate hygiene, if the child is in distress, if all of the above options have been tried and exhausted, a parent might consider going back to court to alter the plan,” O’Neill said. “They should keep in mind that the courts are limited in how they can respond, however, in terms of a timeline.”
Prioritizing children
Although the courts are operating on a restricted basis, King said judges are prioritizing cases that most directly affect the state’s children to include abuse, custody and juvenile justice matters.
“We’re taking cases that involve children and children’s rights as a top priority at a time when the courts aren’t necessarily open for all business. Just because we have a COVID-19 pandemic doesn’t mean they shouldn’t get the attention of the courts,” King said.
“It’s a tough time for kids right now, too,” he continued. “I think kids need both parents more than ever right now.”
O’Neill said that parents should try to remember that divorce is one of a range of adverse childhood experiences or ACEs and can affect a child’s outcomes later in life. She said too often children are working to accommodate the parents and that parents need to refocus their efforts on what is best for the child.
“Ongoing conflict between two separated parents can have deep long-term negative effects on a child’s well-being, emotionally and physically,” she said.
Last week, DCYF recommended new protocols regarding in-person child, youth and family contact during the coronavirus crisis. In an effort to limit exposure to the virus through in-person contact, DCYF has suggested that when possible visits should occur remotely, whether by telephone or video conferencing.
“We believe this step is necessary to do our part to help minimize the burden on the medical system and protect the health and safety DCYF constituencies, including parents, children/youth in care, foster families, and providers,” wrote Director Joseph Ribsam Jr. in a memo to DCYF staff. “Because many children in out-of-home care reside with other children and caregivers who may have their own unique risks and medical complexities, the risk of exposure extends beyond the direct participants in a visit.”
Supervised visitation centers that serve families affected by domestic violence are also weighing alternatives to in-person visits in light of COVID-19. At this time, the state’s three centers that comply with national best practices and safety guidelines have suspended their visitation services and staff are re-evaluating whether video conferencing is a feasible and safe alternative during the pandemic.