No doubt that COVID has been hard on all of us – especially for children of divorce. COVID parent’s ability to spend time with both of their parents and overturned carefully cultivated parenting plans. I cannot tell you how many stories I’ve read about from attorneys who are seeking advice from colleagues about how to enforce parenting plans that have been upset by COVID. The parents seek judicial enforcement of their settled, court-ordered parenting plans, but the courts are unable to set hearings to enforce those plans due to COVID. Unfortunately, parents often run to court when parenting plans are disrupted, even outside of COVID. This creates ongoing litigation over the children, which is not in the children’s best interest.
I cannot help but feel that the process let these families down. Acrimonious divorces happen, and, unfortunately, anger undermines the parent’s ability to work together to discuss parenting options. Instead, it appears that many parents are asking their attorneys to file motions because COVID has undermined the parent-child relationship (although I believe that some parents and attorneys would assert that one parent is using COVID as an excuse to purposefully harm the parent-child relationship of the other parent.)
COVID is an extreme example of an unforeseen event. But, in every divorce involving children, there will be unexpected events because children are unpredictable. Their interests change. Their activities change—their relationship with their parent’s change. Any parent who can predict a child’s changes has some sort of magic crystal ball that they must share with all other parents.
There are two lessons to be learned from these situations: (1) it is impossible to plan for all scenarios when putting together a parenting or joint custody plan; and (2) the divorce process needs to anticipate the possibility of lesson one.
Too often, divorce judgments involving parenting plans do not include a way to address unforeseen events. When a divorcing couple puts together their parenting plan, they must have a tool to manage unexpected events in their divorce judgment.
There are multiple options for parents. First, parents should be to talk to each other and agree about a change in the parenting plans. Any agreement could be informal if it’s short term, or formalized into an Amended Judgment if it is something more permanent.
If the parents cannot informally agree or their relationship prevents them from even having a productive conversation, the parents should consider mediation as second option. Mediation is a voluntary, confidential process that allows you to resolve your parenting conflict with the assistance of an impartial third party. The mediator helps empower the parents to reach mutually acceptable solutions, even when the relationship has a lot of friction. Parents could plan for unforeseen events by including an agreement to mediate in the initial divorce judgment, which would allow for a process to address unexpected circumstances before the parties go to court.
I also advocate for parents to use the Collaborative Divorce process at the outset to get divorced in the first place. The process gives the parents a support team to make it through the divorce. Also, the initial divorce judgment could an agreement to re-form the Collaborative Divorce team if the parents can come to an agreement when facing an unforeseen circumstance. The team will then work with the parents to agree to any necessary changes that need to be made to the parenting agreements. Again, any subsequent agreement could be informal if it’s short term, or formalized into an Amended Judgment if it is something more permanent.
All parenting plans will face unforeseen circumstances. The parents should plan ahead about how to address these unexpected circumstances in their original divorce judgment and should use either mediation or Collaborative Divorce as a means to avoid constant and ongoing litigation.