How Are Parents Supposed to Deal With Joint Custody Right Now?
The rules of the pandemic require every person to stay put in one household. The laws of joint custody require the exact opposite.
Life under COVID-19 house arrest has its obvious logistical challenges for all families. An unprecedented wave of job losses means less money for food and rent in many households, as well as a loss of health insurance right at the moment when a global sickness descends. Child-care help has become a vague and distant memory. Parents lucky enough to still have jobs can’t seem to find the hours in which to do them, what with this child needing the computer for school, that one crying over missing friends, the baby screaming to be fed, or a toddler who likes to jump off the couch straight onto a skateboard the minute you turn your back.
But combine the rules of pandemic quarantine, which require every person to stay put in one household, with the laws of joint custody, which require the exact opposite, and you’ve entered into unprecedented family territory, legal and otherwise. Co-parents are now having to renegotiate hard-won agreements and routines as they try to keep their families safe.
From 2016 to 2019 B.C. (“before coronavirus”), my former husband and I had become almost smug about how well we were co-parenting our youngest child after a three-year separation during which I was the solo parent. We’d been significantly less than adept at compromising during our 20-year marriage, but once we had to figure out how to shoehorn the logistics of our work responsibilities into the too-tight slippers of shared custody, we became unusually kind to each other, even rational. Every time he asked, “Can you take him on Thursday night? I have a work thing,” I answered swiftly in the affirmative, and vice versa. Each last-minute change of schedule was treated as par for the parenting course, not as an opportunity to attack the other person.
But 2020 A.C. (“anno COVID-19”) has thrown the joint custody of our youngest child––a boy, 13––into complete disarray. My ex-husband and I both live in New York City, a hot spot for the virus in the United States. Our state, as of Tuesday, has reported more than 5,000 deaths. My ex lives at the northern tip of Manhattan. I live with my new partner an hour away in Williamsburg, Brooklyn. And recently, all three of us in my household (my youngest son, my partner, and I) have fallen sick.
“This is an unprecedented legal situation,” says Dana Stutman, a matrimonial lawyer in New York City, who has been inundated with calls from parents since the city’s lockdown began. “Children need to have a relationship with both parents, and continuing this relationship during this time is still important. But this is a life-threatening disease, and it’s very aggressive. Obviously the safest plan is to shelter in one place, and if there’s fallout as a result of this, parents will have to deal with that in the aftermath.”
In other words, as rumor became fact and the virus made its way into our communities, even parents who have otherwise been quite good at being flexible were suddenly asked to be more flexible than either they or, frankly, divorce law itself had ever imagined.
Prior to getting sick, I’d asked my ex whether I could have our son at my place on a Wednesday night––normally his custodial night––to celebrate my 54th birthday, on March 11, and he gamely agreed. As I was blowing out my candles, feeling completely healthy but suddenly wondering whether I could possibly be harboring the coronavirus and shedding it all over my birthday cake, our president went on TV to acknowledge the growing gravity of the situation, while our phones started blowing up with news of Tom Hanks’s COVID-19 diagnosis and the cancellation of the NBA season.
“I’m keeping him home from school,” I texted my ex the next morning: a unilateral decision, not an opening to a dialogue. And not my normal modus operandi either. But I was worried: All through February and early March, I’d been closely following the exponential curves of the disease’s progression around the globe. This latest news clinched for me that we had to change our lifestyle now. My ex wondered whether I was overreacting, but he was ultimately okay with my decision.
I tried to imagine how we would deal with the coming weeks (months?) of shared custody should the situation grow dire. Normally our son goes back and forth between us on the subway. That would now be out of the question. Then there was the issue of living quarters: My partner and I live on the top two floors of a four-story walk-up. We have one set of neighbors below who share our stairwell (a couple who are vigilant about the rules of social distancing), but otherwise it’s just us. My ex lives in a large apartment building with a shared elevator and many elderly residents. In my home, my son has his own bedroom with a door that shuts; in his father’s, he sleeps behind a bookcase in the living room.
On Saturday, March 14, fretting over how we’d even attempt to share custody, I texted my ex the following: “Hey, hey, we need to talk about parenting in the era of corona. All things being equal, I’d be happier if he just stays here until the plague is over, but maybe you could do bike rides together outside? What a crazy time.” (This was back when we were encouraged to get out and exercise, and told not to wear masks unless we were sick.)
It pains me now to even reread our text exchange from those days. He thought playdates were still okay. I said they were not. He thought shuttling our son between us via Uber was fine. I said the cars could be coated in shed virus. Suddenly, all the goodwill we’d built up over three years of (mostly) conflict-free co-parenting was gone. We each became the uglier versions of ourselves. I stood my ground like a petulant toddler. He sent legalese he’d cut and pasted from the internet. I wondered whether he could, in fact, have me arrested for violating our custody order during a global pandemic.
“No,” Stutman told me when I asked her. “I mean, he could try, but I think the police have more important things to worry about right now.” And no, she didn’t think he could successfully sue me at this point either. “Protecting the child’s health and safety has to come first. Because if he’s not healthy and safe, he’s not going to have a relationship with either of his parents.”
The hostile texts continued for more than a week, during which my ex would ask when and how I would be sending our son to him for his custodial weekend, and I would say, “I’m not doing that, sorry,” while offering him all the makeup days he wanted on the other side and suggestions for outside activities they could share together, as well as compassion over the heartbreak of being separated from his son. He said he’d rent a car to pick up our kid. I explained that he would come into contact with multiple people at the car-rental office, after which our child would be spending time in my ex’s large apartment building, sharing a small elevator with its elderly residents. “We have to do what’s best for our son and the greater good right now. Not what’s best for you,” I texted imperiously.
Then my household fell ill. Arguing was not only no longer worth the breath, but it was stealing whatever breath I had left.
My partner and I had fevers, but my son’s symptoms were mild: loss of taste and smell, loss of appetite. Our doctor told us to assume we all had COVID-19. When I revealed this to my ex, he was understandably upset. I could read the sadness in his texts. “I’m so sorry,” I said. “I really am.”
Even when parents are in total agreement as to how to handle custody during quarantine, the virus typically has the last word. Stutman told me she had one case of a child who’d fallen ill with the virus, and both parents might have already been exposed. But should they still force their sick kid to travel back and forth as they’d so carefully planned? “There are no clear-cut answers,” she said, “but obviously a sick child should not go outside.”
The New York–based singer-songwriter Sasha Lazard was already feeling ill when the city went into lockdown. So her oldest son, 13, of whom she shares joint custody with her ex-husband, escaped with his father to a house Lazard had rented for six months out on Long Island, while she stayed in New York City to recuperate. Her youngest, 9, of whom she shares custody with a different man, left for his father’s farm in New Jersey, indefinitely. “I’ve never been separated from him for more than two weeks since he was born,” she told me. “It’s at once excruciating but also a relief that he didn’t have to be in contact with my germs.”
Being ill while single parenting has its own burdens, too. Jill Greenberg, a New York–based photographer, has been sheltering in place with her two teenagers, 14 and 16. Her ex-husband came over one night to cook and clean for them at the beginning of the lockdown, but then Greenberg got sick; fearing cross contamination between their two households, they’ve since put a stop to this. “Otherwise Rob’s just dropping stuff off––Theraflu, food, whatever,” said Greenberg, “so he can see the kids without being in physical contact with them.”
The virus and its logistical challenges have actually brought some couples closer together. Lazard, having recuperated, is now living with her ex and their son, which, she said, has been surprisingly pleasant. “Because we are no longer a couple, the level of politeness is so much greater. I remember during the marriage, saying to him, ‘I wish you would treat me like you treat your friends.’ And now he’s my friend again.” Another divorced couple, Mike and Molly Rosen Guy, have taken to performing songs together with their daughters on Instagram.
For those separated from their children right now, Stutman suggests staying in touch as much and as creatively as possible. “Use FaceTime or even text or call. You can play a game via video or talk about a book or watch a movie simultaneously. There are dozens of ways to stay connected. It’s not the same as having them in your home, but you will offer them a sense of security. They will not forget you.” Then again, when I asked Greenberg how often her children FaceTime with their dad, she laughed: “They’re adolescents. They don’t even answer his phone calls.”
I tried explaining this to my ex, too: that though he imagines we’re having family movie-and-Scrabble nights every evening, this couldn’t be further from the truth for an almost 14-year-old learning remotely under lockdown and two sick adults. My partner and I fall asleep before 10 p.m. every night, while my son FaceTimes far into the night with his classmates. Once in a while we’ll hear an explosion of giggles. Or a guitar being strummed. Otherwise, he comes out of his room pretty much only for food and to use the bathroom.
Stutman said she’s been urging all of her clients to try to step back from their normal knee-jerk reactions during this time of confusion and illness. “If a child happened to be at your home when ‘shelter in place’ took hold, that’s just the way the cards landed,” she said. “If parents cannot agree, it is vital to protect their children from the disagreement. Don’t argue or discuss it within earshot of your children. Don’t let them absorb any additional tension during a time already riddled with anxiety for children.”
As for the outbreak of hostility between co-parents, Stutman felt confident that this, too, like the virus, shall pass. “Any goodwill parents have built up thus far has not necessarily been destroyed. Parents need to get through this, and remember when all of this is over, that everyone was trying to do the best thing for their children, knowing what they knew at the time.”
On the morning of April 2, my ex’s birthday, I called him. “I’m so sorry you’re all alone on your birthday,” I said. “I feel awful.”
“That’s okay,” he said. “I’ll come by and visit him on my bike this weekend.” The plan was for him to simply wave from the street below, but like all plans these days, this one was scrapped. Our little one had been symptom-free for an entire week by the time Saturday rolled around, so the two of them, along with our older son, 24, who’s been quarantining nearby, donned masks and went for a socially distant walk to our neighborhood park.
I ran into them, on my first day of feeling healthy, while walking my dogs. There they were, each 10 feet away from the other, sitting at their own individual picnic tables. “Thanks for lunch,” my ex said. I’d packed him a thermos full of chicken soup, an apple, and some salami, which I’d sent off with our son.
“You’re welcome,” I said, and sat down with them for a spell—10 feet away, but together.