Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome Nanda E. Davis back to our pages.
Doctors and nurses in emergency rooms and ICUs, are on the front lines fighting this pandemic. They are also regular people, with children, families, exes, and court-ordered custody, visitation, and parenting time. Family law attorneys are about to see a lot of motions to suspend visitation for clients who are healthcare professionals. Should courts be limiting the time that children spend with those on the front lines of this pandemic?
First, check on executive and judicial orders in the states in question.
In some states, governors have entered executive orders dealing with activity and travel. Some of these orders mention custody and visitation. For example, in North Carolina, Gov. Roy Cooper’s travel ban provides a specific exception for travel for the purpose of custody and visitation. The Kentucky Supreme Court has issued an order specifically dealing with custody and parenting-time orders. Be sure to check on the orders in your state.
Next, look at the best interests of the children.
Assuming there is no executive or judicial order that conclusively solves the issue, then the overriding concern should be the bests interests of the child. The CDC states that adults make up the most known cases to date and that children with confirmed cases generally present with very mild symptoms. Practitioners and parents should also consider whether the child has asthma, is immune-compromised, or otherwise at greater risk from the coronavirus. Experts have said that, in general, children have not been as at risk as adults from serious complications from the coronavirus, but that does not mean that in some cases, like with asthma, that a child might not be at greater risk.
Assuming the child does not have asthma or other health concerns, practitioners and parents should consider other factors, such as, how close is the child to a parent in the healthcare industry? Is that parent the primary custodian? Does the child regularly spend a lot of time with that parent? Would limiting time with that parent be traumatic to the child, especially given that the child’s routine is already impacted by the closure of schools, activities, and ability to be around friends?
Look at the specific circumstances of the parent in the healthcare industry.
Is the parent working in a hard-hit area like New York City, without proper protection like masks, gloves, and gowns? Or is the parent in a more rural area that has not seen as many cases? Is the parent working longer shifts? Is the parent doing everything he or she should upon return home, like washing clothes, removing shoes, etc.? Assuming the parent in the healthcare industry is taking proper precautions, like using N95 masks when performing procedures that may put him or her at greater risk for transmission, washing his or hands, avoiding touching his or her face, and removing all clothing upon return home, the risk of transmission may be very small.
Consider the other parent’s situation.
Is that parent at high risk due to asthma or is that parent immune-compromised? Does that parent share a house with or care for someone who is at greater risk due to age or health concerns? What is that parent’s work schedule? Is that parent maintaining proper social distancing? Is that parent also an essential employee, or otherwise still coming into contact with people? The circumstances for both parents need to be carefully considered.
Above all else, this is about the child’s best interests; it’s not about what either parent wants. Lawyers should be on the lookout for opportunistic parents who are still angry at an ex and who may see this as a chance to limit that other parent’s time with the child. There is also a strong element of equity or fairness here as well: we are asking our healthcare professionals to put their lives on the line to save our lives. Every day, they go to work and fight this pandemic that has disrupted the entire world while the rest of us watch. Do we thank these individuals by deeming them unfit parents? Do we reward them by denying them downtime with their children? That doesn’t seem right.
Lawyers should weigh all these considerations when advising and guiding their clients during these difficult times.
Nanda E. Davis opened her firm, Davis Law Practice, in Roanoke, Virginia, in 2014. She specializes in divorce, custody, and matters involving Child Protective Services. She is the mother of two boys and active in the Roanoke Chapter of the Virginia Women’s Attorney’s Association. More about her can be found on her website and she can be reached by email at firstname.lastname@example.org.
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