Parenting plans attempt to provide stability and consistency for children and their families. A well-crafted parenting plan encourages flexibility but provides certainty for circumstances when parents disagree. In 2020, a global pandemic created extraordinary challenges, and rendered many parenting plans obsolete. The pandemic closed many courts, and left the rest with very limited calendars and unable to respond to the rapid changes the pandemic produced. No parenting plan can anticipate disruptions of this scale and duration, but there are some practical lessons emerging from the pandemic
1. Especially in the first months of the pandemic, many lawyers and judges viewed residential schedule issues through their customary lenses with a focus on preserving existing schedules without regard to the realities of pandemic life, include health risks to children and household members, rapidly changing travel restrictions, remote schooling, loss of income and other practical questions. It was difficult to distinguish genuine protective gatekeeping from pandemic rationalizations for restrictive gatekeeping, which led to protective gatekeepers being perceived as restrictive gatekeepers. (Protective gatekeeping refers to limiting parenting time and involvement for good cause; facilitative gatekeeping refers to actively promoting the involvement of the other parent in childrearing; and restrictive gatekeeping refers to limiting parenting time and involvement not for good cause.)
2. Court closures and backlog require restraint in seeking rapid judicial intervention to cases where the need is especially great. That includes careful attention to the statutory criteria for ex parte child custody relief. See Fam. Code §§3061-3064. Lawyers should decline to file RFO’s that are essentially letters to Santa Claus – asking courts for relief which cannot or should not be granted. Court congestion also makes it essential that moving and responsive papers include signature-ready proposed parenting plan orders to minimize the judicial, staff and attorney time needed to go from tentative decision to order after hearing or judgment.
3. Many practical issues arise from mismatch of the risk factors in each household – including multigenerational households, households in which one or more adult is an essential worker, households that include high-risk members, and differences in risk-tolerance. One important factor may be resources for supporting remote education, including the availability and skill of parent support, physical space for studying without distractions, broadband and computer access, and the educational programs offered to each household. While we are accustomed to considering issues relating to school quality and fit, remote education makes those issues far more critical and complex.
4. Domestic violence and child abuse have become more common during the pandemic and often goes unreported. The Domestic Violence Protection Act has been amended to expressly address patterns of coercive control, and it is likely that the Fam. Code §3044 presumptions governing child custody determinations where the court finds a parent has committed family abuse will become more important, as will well-tailored therapeutic jurisprudence interventions.
5. The Family Code does not give family courts the authority to do more than allocate parental decision making between the parents – they may not make parental decisions. The pandemic led parents to ask judges to decide whether children should attend schools when local public schools were open, whether children should travel in a time of rapid changes in travel safety and restrictions, and what risk mitigation measures should be followed in each home. As this chapter goes to press, families will face decisions about Covid vaccination of children. Public policy should guide the allocation of decision making in those cases, absent a showing of specialized individual risk. Hence when public schools are reopening, public policy reflects a balancing of the risk of Covid exposure and spread with the risks to children’s social and educational development. Where a child has special risk factors like a need for in-person learning due to special educational needs, or higher risk of illness because of the child’s medical condition, then assessment of the quality of parental decision making and allocation of that authority should focus on that particularized analysis.
6. Parenting plans that tied parenting time and exchanges to school schedules created havoc as schools closed, reopened, altered schedules and shifted to periods of remote and hybrid learning. Parenting plans should expressly address whether the former school schedule remains the parenting plan schedule and, if not, what schedules will be in a time of changing school terms and daily schedules. Similarly parenting plans that assumed children would be in school while parents worked proved inadequate when schools shifted to remote learning and when some parents worked from home while others were unable to do so.
7. The pandemic created particular strains in the viability of long-distance parenting plans as waves of viral outbreaks, quarantines and travel restrictions made the safety and feasibility of travel by children or parents highly uncertain. These issues ranged from relatively short distance travel to complex questions in Hague Abduction Convention return cases over whether travel pursuant to return orders presented a grave risk to the child sufficient to serve as an exception to the mandate to return children to the country of their habitual residence.
8. Many parent-child relationships relied more heavily on virtual time together. Research on video time suggests that it can provide important scaffolding between periods of in person care-giving but is not a substitute for that time. Especially with babies, toddlers, and young children, successful use of video applications between in-person contact requires skill on the part of the adults at both ends of the session for the child to be engaged and have a positive experience. One appellate court opined in a dependency case, “We can all appreciate now, in the midst of the COVID-19 quarantine, that video meetings are not an adequate substitute for meeting in person, even for adults. That’s even more true for children, especially small children, who aren’t cognitively developed enough to engage in that setting.” (In re S.S. (2020) 55 Cal.App.5th 355, 377.) Where possible, parenting plans that include virtual interactions should include provisions for parent education, counseling and coaching about how to maximize the benefit of virtual parenting experiences.
9. Almost every aspect of family life has been stressed by the pandemic – and most parenting behavior and judgment has been compromised to one degree or another. Many families are grieving deaths of family members, and every family is living with fear and anxiety. Consequently supportive services and therapeutic jurisprudence programs are more vitally-needed than ever. At the end of the pandemic, as families, institutions and communities recover, families will carry the scars of the pandemic. Child custody evaluations (many of which are being conducted remotely), adjudications of parenting plans, and negotiation of parenting plans should recognize the need to revisit the plan in the future because the behavior of parents and children, the needs of children, and the circumstances of children’s lives during the pandemic are highly atypical and may well not be predictive of the children’s future needs and the ability of parents to meet those needs.
It will be years before California’s family courts can recover from the backlogs and budget cuts of the pandemic. The adjudicative model for child custody determinations was already unscalable to the demand once the law and society moved from rare adjudications challenging the maternal preference to developing, implementing and adapting detailed individualized parenting plans over the course of childhood. Provisions for mediation, coaching, counseling, parent coordination, arbitration and private judging of requests to adapt parenting plans by families who can afford private practice services can help bridge the gap and reduce the demands on overstrained family courts.
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Leslie Ellen Shear is an attorney licensed to practice in California since 1976, certified as a family law specialist by the State Bar Board of Legal Specialization since 1983, and as an appellate specialist since 2009. She is one of only four California lawyers holding those two certifications. She is a fellow of the International Academy of Family Lawyers. Her statewide family law practice family law trial court practice consists of consulting and appearing on a limited scope basis as part of a client’s legal team in complex parentage, child custody, interstate, international family law jurisdiction and other family law cases. Ms. Shear has served as an expert witness on abduction risk, and international child custody and jurisdiction matters in California, Canada and the United Kingdom. Ms. Shear has 21 published appellate opinions including Michael H. v. Gerald D. (1989) 491 U.S. 110 where she represented a child in a complex parentage case from the trial court through the U.S. Supreme Court and the lesbian parentage cases in the California Supreme Court (Kristine H. v. Lisa R. (2005) 37 Cal.4th 156). Seven of those published cases helped develop California’s law governing complex parentage cases and another seven cases helped develop California child custody relocation and modification law. Ms. Shear is past president of the Association of Certified Family Law Specialists (ACFLS) and co-chairs the ACFLS amicus committee. She received her J.D. from the University of California, Los Angeles, School of Law in 1976. She is the author of the chapter on Parenting Plans in CEB’s California Child Custody Litigation and Practice. For her full biography, see http://tiny.cc/LESbio2020.
Early in the pandemic, Ms. Shear presented a webinar, Covid Custody Conundrums, for the Los Angeles County Bar Association (LACBA), along with Robert A. Simon, PhD, on how child custody professionals can best assist parents in developing, implementing, and adapting workable parenting plans during the Covid-19 pandemic. That April 20, 2020 webinar (and the materials from the program), may be accessed here: https://www.ourfamilywizard.com/lacba-covid-custody-conundrums.