Crime and Justice

‘Stay home’ fraught for parents who share child custody

Brian Grearson
Chief Superior Judge Brian Grearson listens to testimony in the House Judiciary Committee at the Statehouse in Montpelier on Thursday, Jan. 31, 2019. Photo by Glenn Russell/VTDigger

Last month, when Gov. Phil Scott ordered Vermonters to “stay home,” he opened the door for a deluge of questions for parents who share custody of a child.

“When orders from the government start coming down the line, your initial reaction is, ‘Oh gosh, am I going to be pulled over with my kid in the car and asked where I’m going?’” a parent in Hinesburg who shares custody said last week.

The Covid-19 crisis has raised questions for parents of children who move between two homes about what is allowed, and safe, at a time when public health authorities are urging Vermonters to minimize contact with others.

Family law attorneys would like more guidance from the courts to help parents and guardians make decisions how to handle situations in which children move between homes during the crisis.

Vermont’s judges are in agreement that court orders concerning contact between parents and children stand despite Scott’s “stay home” order, according to Chief Superior Judge Brian Grearson. The courts have drastically reduced activity during the crisis, only hearing emergency motions. Though motions to modify custody arrangements may be considered in some circumstances, Grearson said the “stay home” order is not enough to trigger an emergency.

The state’s high court has not issued any guidance about parent-child custody orders so far, and Grearson does not expect the court will do so.

“The Supreme Court believes that each case involves a unique factual basis and the decisions relating to these cases are best left to the discretion of the trial judges,” he said.

The parent in Hinesburg, who asked not to be identified by name because of the custody agreement, said the coronavirus crisis has created a very emotional situation for parents who share custody.

“When the world is on fire, you want to be with your kid,” the parent said, adding that routine and connection are important, too. “Kids need their parents, and if they have two parents, then they need to be with both of their parents.”

The family has made some changes to the schedule to adjust to the unusual circumstances. On a typical school week, it makes sense for the child to switch houses on Friday after school, because they have the weekend to settle in. But since schools were dismissed for the rest of the academic year, students are now engaged in remote learning and Saturday makes more sense. Because they have a good relationship and have been in a co-parenting situation for years, it was easy for the two parents to talk about making changes in light of the “stay home” order.

But for others who may have more strained relationships, navigating court-ordered co-parenting arrangements is challenging.

Patricia Benelli, a lawyer in Chester and the chair of the Family Law Section of the Vermont Bar, said lawyers across the state are fielding questions from confused clients.

“They have one order from the courts and another one from the governor, and they’re conflicting,” she said.

While judges have made clear that they expect court-ordered custody agreements to remain in place, the courts may modify arrangements in emergency situations. 

Benelli said attorneys would like more guidance from the judiciary about what factors would be considered.  Amid the Covid-19 crisis, different factors are taking on new significance in child-parent contact arrangements. For instance, how far does a child have to travel between parents? Or, if one parent is particularly high risk, is there a chance that a back and forth could harm a child’s health?

“There are umpteen questions that come up when considering this that we normally don’t have to consider,” Benelli said.

Many parents are figuring out how to adjust visitation schedules in the coronavirus crisis without going to courts, she said. Court orders typically allow parents flexibility to make changes based on circumstances. But in some cases, particularly where relationships are contentious, altering schedules can’t be easily navigated outside the courts.

Benelli is hoping the Vermont Supreme Court will issue guidance so attorneys will be better able to help clients make decisions about parent-child custody agreements. Already, Benelli said, there are apparent discrepancies in how flexible different judges are willing to be.

“We’re basically winging it, and our clients are winging it,” she said.

Some lawmakers have been concerned about the impact of the “stay home” order on parent-child custody since it came out, according to Sen. Joe Benning, R-Caledonia, a member of the Senate Judiciary Committee and an attorney with a background in family law.

Legislators have been looking at whether to allow visits between children in foster care and parents during the crisis. A House committee last week reviewed language that would allow courts to postpone in-person meetings of parents and children in foster care for the duration of the pandemic because of public health concerns.

Cutting off visitation between children and parents, Benning said, can hurt the bonds between them. Threatening to do so is “potentially a weapon that can be used by those that have the child,” Benning said. “They just don’t want to put up with the other side and that is very disturbing.”

He is advising clients to maintain their typical contact according to their court order unless there has been a Covid-19 diagnosis in a family, at which time, they could turn to the courts.

Effie Davis, who shares custody of her son, said families are worried about the health issues of having a child moving between two households and doubling their exposure to the virus. 

“If the kid can’t go to school because this stuff is so contagious, then visitation should stop,” she said.

While some parents can easily discuss changing schedules, Davis said, for others the subject can be difficult and emotionally fraught.

“It turns into almost ‘you’re using the child against me,’ when it’s not that at all,” she said.

Davis and her mother, Jeanette, who helps care for the child, said parental visitation orders from the courts should be more lenient during the crisis.  

“When it’s something like this, which we’ve never experienced before, people are being told to stay home. Then those court orders need to be flexible enough to allow this bend,” Jeanette said.

Parent-child custody arrangements are particularly tricky to navigate because they’re generally tailored to individual family situations, several attorneys noted.

That means potential changes to cases could vary widely, Michelle Donnelly of Vermont Law School’s South Royalton Legal Clinic.

“All the cases are going to be so facts-dependent,” she said.

In some cases, one parent may be especially concerned about the child’s exposure to the virus. But, she said, “those concerns about what might happen might not be enough to trigger an emergency.” The closure of non-essential businesses and restrictions on gatherings have also complicated court orders that require supervised visitation or meeting in public places.

The novelty of the coronavirus emergency has put the state’s legal system in uncharted waters, Donnelly said.

“Lawyers and judges and the whole court system rely on this idea of precedents,” Donnelly said. “This is what we did before, so this is what we’re going to do now.”

“We’re just in a territory where there is no precedents,” she said.

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Elizabeth Hewitt

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