Co-Parenting During Lockdown: COVID-19 and Child Custody Cases Before the Vaccine

• Author: New York Law School Family Law Quarterly Editors
• Pages: 173-194

173

Co-Parenting During Lockdown:

COVID-19 and Child Custody Cases

Before the Vaccine

NEW YORK LAW SCHOOL FAMILY LAW

QUARTERLY EDITORS*

Introduction

This Article looks back at child custody disputes from the early days of

the COVID-19 pandemic in the United States, when there were no vaccines

available to limit the spread or impact of the disease and much of the country

* This project began in Fall 2020, when the 2020–21 New York Law School Family Law

Quarterly Student Editors researched and prepared digests of selected 2020 Family Law cases

that involved child custody and visitation during the rst six months of the pandemic in the

United States (from March through September 2020). The case summaries were initially

included as part of the materials for an April 8, 2021, Family Law Quarterly virtual symposium

event, Family Law During COVID-19: Challenges, Adaptations, and Future Impacts. Editing

of the case summaries and development of this Article were completed by NYLS students Erin

Peake, 2020–21 Symposium and Communications Editor, who also researched and selected

cases; Aliyah Polner, 2020–21 student Editor in Chief, who helped to write, organize, and

develop the structure for the Article; 2021–22 Curriculum Editor Mathew Fontanez and 2021–

22 student Editor in Chief April Pacis, who completed additional editing work and developed the

format for the Article; and faculty Editor in Chief Professor Lisa F. Grumet. Other contributors

to this project include 2020–21 student editorial board members Lina Abdullah, Maraya Aboly-

Brown, Natalie Alvarez, Shelby Arenson, Fatin Assaf, Jessica Awad, Kelly Barrett, Shannon

Bartlett, Reid Bloom, Megan Brandon, Andrew Cohen, Martina Colaizzi, Alexis Dairman, Vlad

Goldfarb, Natalie Gutierrez, David Hawkins, Caitlyn Kelly, Andreina Mendez, Lisa-Marie Ortiz,

Julia Porzio, Serene Qandil, Laurence Reichman, Alana Reid, Madeleine Robinson, Courtney

Roman, Hannah Ross, Kali Schlegel, Sabrina Smith, Elsie Tan, Kathy Torres, Victoria Wilton,

and Sivan Zak. Thank you to Professor Ramesh Kasarabada for tremendously helpful feedback.

Published in Family Law Quarterly, Volume 55, Number 2, 2022. © 2022 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may

not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

174 Family Law Quarterly, Volume 55, Number 2, 2021–2022

was in “lockdown.”1 While the cases included here reect the trajectory and

uncertainty of the early months of the pandemic, they show how courts

have weighed physical and emotional health considerations and the parties’

circumstances when determining the best interests of the child.

Beginning in March 2020, most state governments issued some form of

“stay-at-home” orders with the goal of protecting public health by limiting

the spread of the virus.2 Most elementary and secondary schools closed their

buildings and shifted to online learning, at least from March 2020 through

the end of the 2019–20 school year.3 Many courts suspended in-person

proceedings and/or restricted nonemergency lings, and began using virtual

technology.4 The United States and other countries imposed some restrictions

for international travel,5 and 27 states and the District of Columbia imposed

restrictions for interstate travel.6 In an April 2020 custody decision, a

Brooklyn family court judge summarized the “lockdown” rules in effect in

New York City, which was hit especially hard early in the pandemic:7

Unfortunately, in March 2020, the United States became enveloped in

the public health crisis of the Coronavirus Pandemic. The Mayor of the

1. For general information about COVID-19 and guidance from the U.S. Centers for Disease

Control and Prevention (CDC), see COVID-19, CdC, https://www.cdc.gov/coronavirus/2019-

ncov/faq.html. The rst known cases of the virus appeared in China in 2019. The rst known

case in the United States was identied in January 2020. See Derrick Bryson Taylor, A Timeline

of the Coronavirus Pandemic, N.Y. timeS (Mar. 17, 2021), https://www.nytimes.com/article/

coronavirus-timeline.html.

2. See Amanda Moreland et al., Timing of State and Territorial COVID-19 Stay-at-Home

Orders and Changes in Population Movement—United States, March 1–May 31, 2020, 69

morbidity & mortality wkly. reP. 1198, 1200 g.1 (Sept. 4, 2020), https://www.cdc.gov/

mmwr/volumes/69/wr/pdfs/mm6935a2-H.pdf.

3. See Ctr. oN reiNveNtiNG PubliC eduC. (CrPe), how muCh have StudeNtS miSSed

aCademiCally beCauSe oF the PaNdemiC? a review oF the evideNCe to date 4 (July 2021),

https://www.crpe.org/sites/default/les/8_5_nal_academic_impacts_report_2021.pdf.

4. See Lynda B. Munro & Nicole M. Riel, Our Virtual Reality: Facing the Constitutional

Dimensions of Virtual Family Court, 54 Fam. L.Q. 245, 261–66 & 262 n.57 (2020); Elizabeth

G. Thornburg, Observing Online Courts: Lessons from the Pandemic, 54 Fam. L.Q. 181,

188–90 (2020); Univ. N.C. Sch. of Law Research Team, Family Law Court Proceedings in

the Pandemic’s First Year: The Experience of Each State as Reected in Contemporaneous

Interviews and Reviews of Court Websites and Orders, 55 Fam. l.Q. 195 (2021–22).

5. See Robert G. Spector & Melissa A. Kucinski, The Effect of COVID-19 on International

Child Abduction Cases, 54 Fam. L.Q. 268, 275 n.42 (2020).

6. See Travel Restrictions Issued by States in Response to the Coronavirus (COVID-19)

Pandemic, 2020–2021, ballotPedia, https://ballotpedia.org/Travel_restrictions_issued_by_

states_in_response_to_the_coronavirus_(COVID-19)_pandemic,_2020-2021#Map_of_active_

travel_restrictions_by_state.

7. Corinne N. Thompson et al., COVID-19 Outbreak—New York City, February 29–June

1, 2020, 69 morbidity & mortality wkly. reP. 1725 (Nov. 20, 2020), https://www.cdc.gov/

mmwr/volumes/69/wr/pdfs/mm6946a2-H.pdf.

Published in Family Law Quarterly, Volume 55, Number 2, 2022. © 2022 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may

not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.