Father Wants Parebting Tine Even Though Baby Is Sick
Chaser Kimberley Keyes examines how courts handle child custody and parenting time when a parent becomes seriously ill.
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The coronavirus outbreak has placed a new emphasis on an old question: What happens in child custody cases when a single parent'south medical condition threatens to interfere with his or her power to intendance for a child? Of grade, this question is non restricted to viral infections. Medical issues ranging from car accidents to cancer treatment to giving nascence accept the potential to interfere with a single parent'southward ability to care for his or her child temporarily. In the case of an infectious disease like Covid-19, however, the complications surrounding the parent's inability to care for the kid are compounded by concerns over the potential for disease transmission from the ill parent to the child and vice versa.
It is important to start any analysis of parental medical concerns by noting that well-nigh judges are extremely reluctant to make long-lasting or permanent modifications to child custody based on a parent'due south disease or medical condition. The notion that a sick parent may permanently lose custody or parenting time due to his or her illness is disfavored in the same way that judges tend to exist very reluctant to lodge changes in custody due to a parent's job loss or economic struggles.
That said, judges will order custody changes if a parent'southward medical or economic struggles become astringent enough. For example, if a parent becomes chronically homeless or suffers from major behavioral changes due to brain impairment, a change in custody may exist warranted. In most cases, notwithstanding, a estimate volition seek to make changes to a parenting order due to a parent's illness temporary and reversable. However, the longer a parent's affliction or injury persists, the greater the chances that temporary orders impacting kid custody may be difficult to reverse later.
Parents Infected with Coronavirus Confront Unique Challenges
Typically, when a parent becomes sick with an infectious condition, parents tin can cooperate to temporarily change the parenting schedule to forestall the child from becoming infected and to provide the child with ongoing care. Even so, the lengthy recovery catamenia for individuals infected with the coronavirus, and the risk that virus transmission poses for children – and the other parent who cares for said children – are having an bear upon on child custody. With many family courts closed to non-emergency matters, formalizing custody modifications tin be difficult. For this reasons, parents faced with a Covid-19 infection within the family are seeking resolve concerns over parenting time with the assist of attorneys or mediators before seeking court intervention.
Nosotros will discuss the unique concerns raised by coronavirus below, just before that, it is of import to sympathize the general legal principles at work when a parent becomes sick or injured.
How Parenting Fourth dimension Usually Changes When the Parent Gets Sick
In near cases, when a co-parent becomes sick or injured, he or she can rely on the other parent to "pick upward the slack" and care for a kid while he or she recovers. When the illness is something relatively minor, similar the mutual cold or influenza, it generally makes little sense for parents to formalize temporary changes in the schedule through a modification action. Indeed, for a medical consequence that lasts less than a month, the illness or injury is likely to be resolved by the time the courtroom has fourth dimension to hear the event, particularly with many courts currently closed to non-emergency matters.
Of course, the seriousness of the medical status and the circumstances surrounding the parties tin can impact this analysis. For example, an extremely serious medical status that totally incapacitates a parent – such a parent being placed in a medically-induced blackout – sometimes requires the issuance of an emergency order if the not-custodial parent lives out of land. Similarly, if assuasive a non-custodial parent to take custody of the kid would crusade serious disruption to the child's life, it would not be unusual for the custodial parent's family to seek a temporary guardianship of the child until the primary parent equally recovered. In short, there are circumstances when immediate court intervention may be required, even if the parent'southward medical condition is recent and uncertain.
In the context of the coronavirus, a more than comparable scenario involves a parent who faces a lengthier recovery flow from a medical consequence such as a car accident resulting in major surgery or chemotherapy that leaves the parent ill for weeks or months on finish. When a parent'due south disability is more serious and prolonged, a more than formal legal arroyo may need to be taken. The treatment and recovery period for more serious conditions can exceed several months, disrupting and displacing children and wreaking havoc on carefully synthetic parenting schedules, even if the parent's medical condition does not pose a health chance to the kid. A parent's inability to effectively intendance for the child can require a change to the formal custody arrangement, particularly if the child needs to attend to school in a new district that requires proof of residency at the other parent'due south home.
Well-nigh parental illnesses and injuries practise non involve the total incapacitation of a parent. Courts by and large volition not seek to limit the parenting time of a parent who is disabled, simply maintains control over his or her faculties and is able to communicate effectively with the other parent, and make reasonable arrangements to ensure continuity of care for a child. Consequently, most adjustments to parenting time due to parent'southward illness or injury are temporary. Even so, the longer and more serious a parent's disability, the greater the chances that formal modify in the parenting schedule might be required, particularly if the parties are separated past geographic distance.
When the Medical Condition Passes, the Previous Schedule Can Usually Resume
In virtually instances, the parenting schedule volition go dorsum to normal afterward a sick parent recovers. Notwithstanding, this assumes the parent makes a complete or virtually complete recovery from their medical condition. Parents who, for instance, have a stroke that leaves them with debilitating long-term effects may struggle to care for a child in their custody, especially if the child is young. Similarly, parents whose medical conditions permanently impact their cerebral function, speech or mobility may face applied limitations, such every bit an inability to easily ship a child to and from school or communicate with thee child'due south medical and educational providers. In these infrequent instances, the parenting and custody arrangements may need to be modified permanently, or at least until either the ailing parent shows signs of comeback or the child reaches an age where he or she no longer needs the degree of care that the parent is unable to provide without help.
All the same, a parent'due south recovery from an injury or illness does not automatically guarantee a return to the previous parenting program if there has been a lengthy disruption of the prior arrangement that has been formalized past a temporary order. For instance, if a kid is forced to temporarily alter schools due to the master parent'south incapacity, and the child subsequently thrives at the new school in clear and measurable ways, a courtroom may determine that it in the child's all-time involvement to go along residing with the other parent and attending the new school. If a child articulates a clear preference for remaining with the substitute parent, a court may as well take this into account when considering a permanent change, depending on the historic period and maturity of the child.
In Massachusetts (and virtually other courts in the United States), judges decide child custody cases based on the somewhat amorphous "best interests of the kid" standard. Although individual parents certainly have rights, the rights of parents are supposed to exist secondary to the best interests of the child. In the instance of parents who go temporarily incapacitated, almost judges will seek to avoid a scenario in which a parent who becomes sick or injured at no fault of their own loses parenting time equally a result. However, scenarios can and exercise occur in which a kid'southward lengthy residence with the other parent results in changes in the child's circumstances that propose that a permanent alter in custody or parenting time would benefit the child.
Child'southward Best Interests Require Consideration of Parenting Abilities
If the parents are unable to hold on a long-term change to the parenting programme or custody arrangement, they must resolution of the dispute past the Probate and Family Court. As with all other questions in kid custody law, the primary focus of the court's conclusion will exist the best interests of the kid. The guess will presumably event an lodge that gives the child meaningful access to both parents, just too ensures that the child gets the intendance he or she needs.
In the context of sick or injured parents, most judges will work hard to avoid the impression that a sick or injured parent is being "punished" for his or her diminished capacity through a change in custody. Nevertheless, judges are required to examine the objective parenting abilities of each parent. If a parent'south disability straight impacts his or her power to care for the child, the court must consider this reality in fashioning a parenting social club moving forward. Of course, most judges are likely will likely view skeptically arguments that a parent'southward physical limitations truly hamper the parent's ability to intendance for a child. Disabled individuals are often wonderful parents and opposing parties who seek to utilize a parent'due south disability as fodder for a custody fight face a real take chances of angering a judge.
With Re-Opening, Social Distancing and "Stay Home, Salvage Lives" Called into Question
Cheers to the coronavirus, many single and divorced parents worry about the bear upon of the affliction on both their child and their parenting plan. With so little known near the effects of Covid-19, coupled with the closure of the courts that would otherwise have decided such bug, judges in Massachusetts and elsewhere have been struggling to come with compatible solutions during the crisis. Meanwhile, the process of "re-opening" has created bones contradictions betwixt the ongoing recommendations of public health officials for parents to engage in social distancing and an increasingly permissive regulatory framework that permits parents to bring children to churches stores and restaurants, subject area to diverse rules that may exist selectively enforced by business owners, hosts and attendees.
John D. Casey, the Primary Justice of the Massachusetts Probate and Family Court, has urged parents to maintain their parenting schedules, but to stay flexible in these difficult times and cooperate when i parent has to self-quarantine. Early in the crunch, FaceTime calls and Zoom meetings replaced more traditional parenting fourth dimension for many parents. Parenting trade-offs – where i parent holds on to the children for longer than their allotted fourth dimension nether the court social club, with the hope that the other parent gets "brand up" time later on – also became more than common. Every bit society re-opens, however, the logic behind such adjustments seems to exist eroding.
Increasingly, it seems that parents are in conflict over potentially risky activities – such as children's attendance at summer camps – have arisen. On the i hand, organizations like the WHO and Massachusetts Section of Health continue to repeat the mantra of, "stay home, salvage lives." At the same time, an increasingly broad range of businesses and activities are opening upwards that clearly create the potential risk of transmission for parents and children. Evolving scientific views about the effects of the coronavirus, especially when it comes to how it can affect children, are also driving some of the doubt.
What if a Parent Becomes Sick with the Coronavirus?
If a parent becomes ill with Covid-19, a iii-pronged assay arises. The outset prong of the analysis focuses on the parent'due south physical condition and power to intendance for the child, much similar the assay that applies to whatsoever of the parental illnesses discussed above. The coronavirus has become notorious for causing lengthy bouts of illness, including difficulty animate, chronic coughing and extreme fatigue (and worse) that lasts for weeks or months. The degree to which a parent tin finer care for a child while infected by the virus involves a mix of complex factors ranging from the severity of the symptoms to the historic period and needs of the kid, too every bit the availability of a willing and constructive co-parent. For younger children who require circular-the-clock supervision, repast preparation and aid with remote learning, a astringent bout of coronavirus may get in difficult or impossible for thee infected parent to maintain the kind of childcare that he or she unremarkably provides.
For single parents who become infected, being able to rely on a co-parent to handle parenting tasks during his or her convalescence is more often than not a huge relief. For single parents with an adversarial relationship with the other parent, all the same, the question of whether the parent is too sick to manage bones parenting tasks poses real challenges.
The second prong of the Covid-xix analysis focuses on potential transmission of the virus to the kid, who may go sick or transmit the virus to the other parent. Science has non notwithstanding provided a articulate picture of how likely children are to become sick with the disease. Early on in the Covid-19 pandemic, information indicated that older people were far more likely to die from the virus, and that children rarely showed symptoms. There were fifty-fifty doubts that children could acquit the virus and transmit it to other people. Notwithstanding, in the past few weeks it has become articulate that some children – albeit a very small percentage of those who may have been infected – accept developed life-threatening inflammation to their arterial walls. The status is very similar to Kawasaki disease and, while it is frequently treatable, it can exist fatal in some cases. However, major questions remain unanswered regarding how likely children are to go infected, get sick or transmit the virus to others.
Complicating these questions is the 3rd prong of the assay, which focuses on whether the child may have already been exposed to the virus past the ill parent. The reality seems to exist that parent who are ill with Covid-19 have often been contagious for a period of time before becoming symptomatic, potentially resulting in potential exposure to a kid before the parent became ill. Accordingly, by the time a parent becomes ill, a kid may accept already been exposed to the virus. Some not-custodial parents in this situation may exist reluctant to bring a potentially infected and contagious child into their own household. If a parent's illness arises following a concrete separation from the child, the likelihood of exposure of the child becomes reduced. In these instances, many public health officials would recommend the kid remain in the care of the non-infected parent and avoid contact with the infected child. Even so, if the infected parent is the child'south master custodian, the risk of exposure to the kid may be a chance worth taking, particularly if the parent's symptoms are fairly mild.
Against this complex properties, parents must counterbalance the three factors: the severity of the parent's symptoms, the risk of infecting the child, and the risk the child has already been exposed and could transmit the virus to the other parent. Unfortunately, there are no easy choices.
About the Author : Kimberley Keyes is a Massachusetts divorce lawyer and Massachusetts family police force attorney for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. She is also a mediator for South Shore Divorce Arbitration.
Schedule a consultation with Kimberley Keyestoday at (781) 253-2049 or transport her an email.
Source: https://www.lynchowens.com/blog/2020/june/how-does-child-custody-change-when-a-parent-gets/
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