Parents with shared custody in a lockdown: a lawyer answers your questions

By Erin Ebborn*

Opinion - The Principal Family Court Judge recently issued guidance for families sharing child care arrangements during the Covid-19 crisis. It carries broad principles rather than specifics. This is because decisions are generally made about each child's needs in each family. There isn't a one-size fits all solution - especially during a crisis.

It's almost impossible to give a "legal answer" to every question because the situation is so unprecedented. The nearest we have to it is the decisions that were made in respect of care arrangements following the February 2011 Canterbury earthquakes.

Below I provide some guidance in answers to questions parents have posed to RNZ:

What's the first thing I should do to make sure this goes smoothly?

You should talk with the other parent and develop a plan together. Many parents think it will be impossible to reach agreement with the other parent when they haven't even tried.

There is a difference between "I don't want to speak with the other parent", being hesitant to call because there is the potential for disagreement and "it's impossible".

Just because you rarely communicate doesn't mean you shouldn't try. You need to raise your concerns with the other parent as a first step. If you can't do it by phone then do it by email.

Try to:

• Be neutral or positive in your language. "I am hoping we can agree upon a plan to keep [child] safe".
• Identify what is an emotion rather than a fact. "I feel afraid about [child's name] and worry about him/her/them getting sick".
• Identify what the problem is without assigning blame. Avoid blaming language like "you always..." or "you never..."
• Be consultative. "I'd like to propose some ideas for you to think about. Would it be okay if I emailed them through?"
• Be open-minded. "I'm willing to listen to your suggestions too."
• Avoid dictating a pre-determined outcome. No one likes being told what to do.
• Be fair. Some things you think are fact might not be.

Text message as a last resort. Texts are often too short to properly communicate.

If you can't communicate you should consider contacting an accredited Family Dispute Resolution (FDR) service. You can search for providers on the Ministry of Justice website. At a certain income level it is free.

If you are financially eligible for FDR then you can also get a one-off consult for legal advice under the government funded Family Legal Advice Service.

What do I need to keep in mind?

Travelling distance: The focus has been keeping children within their community. The Ministry of Health guideline is approximately one hour's drive.

This is about minimising risk of transferring the virus from one community into another. You should avoid using public transport.

Print a copy of your Parenting Order or your written Parenting Agreement or email it to yourself on your phone. Then if you are stopped you will have some proof.

How could I minimise travel?

If your child would usually go mid-week for dinner can you swap it for a mid-week Skype call, or similar, instead?

If you have a 2/5/2/5 or a 3/4/4/3 arrangement could you instead swap to a week about arrangement to reduce the number of transitions between the homes?

What if someone is sick?

You should not be making parenting decisions that result in illness moving between communities or households - even if that means the child remains in the care of one parent longer than usual.

What if there is no parenting order in place?

Neither of you, as guardians, has a greater claim to the child than the other.

Even if you have primary care of the child it doesn't mean your child loves the other parent less and does not need that parent.

Remember also that children enjoy routine and certainty.

Should we be making a plan for if the child is sick or if either of us become too sick to look after them?

Yes. If you or your child have compromised immunity talk with your GP and share that information with the other parent so you can make joint decisions.

If one parent is still working in an essential service you could temporarily change the care arrangement by agreement. They might share your concern about the risk of community transmission.

It will likely help if you agree to regularly review the situation. This situation is highly changeable. What might be appropriate this week might not be next week as we learn more about community transmission of Covid-19. As more information becomes available you should be prepared to adapt.

What do we do about child support?

You should talk with the other parent about child support arrangements.

This might be keeping the existing arrangement in place because any change is only short term, or it might be they are able to voluntarily provide extra financial support over this period of time.

If there is no agreement, contact IRD. If you are experiencing financial hardship and can't meet your child support payments then contact IRD.

What about if a child feels safer in one place than another?

If your child is scared you might want to consider temporarily relinquishing your care/contact so they feel safe in one bubble rather than two.

It is acceptable to have a child as part of two households, but they should then consider themselves as one bubble and keep both households safe.

Remember that the welfare and best interests of your child are the first and most important consideration.

What shouldn't we do?

Quite a few things.

You must not abuse the Covid-19 lockdown to turn an existing arrangement on its head.

It should not be used to avoid reverting to the standard pattern once the lock down eases; as an excuse to cease all contact with the other parent. This is about the child's relationship and their right to have a loving relationship with their other parent and extended family.

If a pattern of care has been changed by agreement to temporarily accommodate the Covid-19 lockdown, it shouldn't be used as an excuse to retain the child.

This is not a time for ego. Even if you usually have the primary care of the child, or an equal shared care arrangement, you need to decide what is best for your child and not flex your parental muscle simply to make a point or a power play.

Can I still apply to court?

Where delay in making a court order "would or might entail serious injury or undue hardship or a risk to the personal safety of the person applying to court or any child of their family (or both)" then it is possible to apply urgently to court.

These applications include being able to: make a new parenting order; change or suspend parts of an existing order; or enforce an existing order - e.g. to request a police officer or social worker to take a child and deliver them to the other parent.

The threshold for "urgent" is a legal one, not just because you think it's urgent.

If you are applying through a lawyer then the lawyer must "certify" the application including to say it is appropriate to apply urgently.

You need to have evidence and not just suspicions or guesswork.

The urgent process is still available during the lockdown but is for emergencies and not just because parents don't agree and want clarification.

Family lawyers have also received an indication that it will not necessarily be as easy to have a parenting order enforced during lockdown as it might usually be, but of course each situation is different.

Still confused?

If you are in doubt about what to do you should contact your lawyer and seek advice that is specialised to your particular situation.

The lawyer will use their best judgment to advise you. Your lawyer hasn't been through this scenario before either and we are all try to get to grips with this very strange environment.

* Erin Ebborn is a Principal Lawyer at Portia in Christchurch. This is an opinion piece and is to be used as guidance only.