(This article was written by Erin Bistricer, ESQ, Senior Staff Attorney for Sarah’s Voice, Shalom Task Force’s Legal Department. Sarah’s Voice provides free, confidential legal services to victim-survivors of domestic and dating abuse.)
One client has a 50/50 parenting arrangement. Her partner insists on applying the court ordered schedule, but he is not following the New York shelter in place guidelines that were directed to help stop the spread of for COVID-19. Another client is immunocompromised. She is the custodial parent. Her partner wants his visitation time, but he lives with a large family and the client cannot be sure they are following guidelines. Another caller is under quarantine, but the child appears healthy and her partner wants visitation. One caller’s partner is seeing the children less than ordered pursuant to a consensual arrangement, but what is going to happen next month when it is Passover?
These are the types of stories the Sarah’s Voice staff have been hearing across the legal community and within their own project. All of their clients fear for the health of their children, themselves, and for society as a whole, but they want to respect the parenting arrangement. The question looms: when it has been emphasized by the government to socially distance yourself, what takes precedent: a court order or the shelter in place directives?
During this chaotic time, it can feel overwhelming keeping up with the numerous directives that are being issued by the federal, state, and local governments. The impact is wide reaching, spreading into every societal institution. There is a sense of social fracturing and a loss of control. We look for guidance to allay our fears.
Yet, in New York the courts have almost entirely shutdown, with several notices being issued that set parameters for if, and how, an individual can seek court intervention. Broadly speaking, the courts are closed unless it is for limited emergency applications.
For New York family law practitioners, what is conspicuously missing among these official notices are guidelines regarding how separated or divorced parents should approach parenting time. This places domestic abuse survivors in a particularly challenging situation.
Survivors have long had to struggle with feelings of isolation and powerlessness. Frequently, after being subjected to various abusive tactics, which often includes an emotional component designed to prey upon their self-confidence and their decision-making, survivors are hesitant to start litigation in court. Doing so requires them to surrender more control to a system they are not familiar with.
A large part of what Sarah’s Voice strives to do is to explain the family courts’ inner workings. We do not guarantee any particular outcome, but explore the strengths/weaknesses of a particular case to give a sense of what can be expected. We emphasize that while the system may be imperfect, it provides invaluable structure. Boundaries are sometimes the only tools available to take control back from an abuser. In court, nothing is more powerful than an order.
The COVID-19 outbreak has not only prevented survivors from relying on the courts for parenting access matters, it has also left them in a state of uncertainty on how to apply directives that were already issued. The anxiety which we feel as a society while structures we depend upon are being dismantled is compounded for parents who not only have to grapple with what has been taken away, but also with what to do with a legally binding court order. They need to do this without the reassurance of guidelines from an institution that they looked to for help. The court order, once a source of stability, is now a source of uncertainty.
In the age of COVID-19, the time-tested counsel of ‘follow the court order’ now has the potential to be irresponsible. In New York City, people are either under “quarantine” – not being allowed to leave the home – or are “shelter in place /social distancing” – being directed not to leave the home unless it is for an essential matter.
Many parents who have visitation subject to a court order would consider those arrangements “essential.” But, during these times, are those exchanges safe? Visitation requires the transfer of children between homes that may operate very differently. Contrasting parenting styles, which are frequently a source of tension, could now be health threatening. One parent may be in self-quarantine as a precaution while the other is not following social distancing. If the second parent has a right to visitation, can the self-quarantined parent deny it out of fear of exposure?
Without any guidance from an official institution, separated or divorced custodial parents are in unchartered territory. The question of what is “reasonable” is heavily litigated by parents during ordinary times and we are in extraordinary times. There is no precedent for how to establish a visitation schedule during a global pandemic that could place New York under lockdown for several months.
In domestic abuse cases this issue is further exacerbated. It is a common pattern for abusers to use times of crisis as a mechanism for control and as an opportunity to undermine the decisions of their partner. For many survivors, reaching a resolution with an abuser is not possible.
Medical decision making is one area where abusers frequently exert manipulative tactics. Survivors often report that their partner will take the opposite opinion just to toy with them. For example, if a survivor wants to seek medical attention for their child, they are accused of being over reactive. If they do not want to pursue a course of treatment, they are accused of being neglectful. In the age of COVID-19, these dynamics are once again being played out, but now during a time of great uncertainty.
Custodial parents can become paralyzed by fearing that acting in what one feels is best for their family’s health will later be used against them. They must choose between health considerations and following an order that was issued during a drastically different landscape without being able to seek a modification. Compounding their anxiety is what will happen when the outbreak lifts and courts resume as normal: will survivors be held accountable for acting in their discretion during a time when everyone is feeling confused and at a loss of what to do?
My project continues to analyze these questions in a fact specific approach. We have been working to diligently contact past and former clients to offer support. This is a time of great anxiety for everyone, but for survivors navigating parenting arrangements they may feel that a system they took the courage to place their trust in is abandoning them.
Recently, Justice Jeffrey Sunshine, the New York statewide coordinating judge for matrimonial cases and also a justice of the Kings Supreme Court, published an article in the New York Law Journal. The difficulties of this time for parents, lawyers, and judges in relation to court closures are acknowledged. His words send a strong message to parents: act unified, put the children first, and be creative. Court protection is not gone, though it is largely on pause.
Our office will continue to monitor for court guidance and to provide targeted advice. There is acknowledgement that while these situations are immensely complicated, survivors are resourceful and creative. In the absence of clear policy, it is likely that survivors will have to create their own. Sarah’s Voice is here as a resource to help in creating those solutions.
Join us Wednesday, April 1st, 2020 at 9 Pm for a webinar, “Shelter in Place: Which Place?” This webinar will discuss legal issues impacted by COVID-19 including court changes and custody and visitation. For the Zoom Webinar ID number, please visit shalomtaskforce.org.
Call Sarah’s Voice for legal intake, questions, and to create a safety plan at: 212-742-1478 x2