BY JOAN MCWILLIAMS AND STEPHANIE E. DANKEL
This article explains challenges divorcing parents face in the C0VID-19 era, as well as opportunities that arise when parties take a creative approach to overcoming these challenges. It also discusses the importance of creating a flexible parenting plan with pandemic-specific provisions.
The COVID-19 pandemic has created chaos for many families, but it is also creating opportunity. Many co-parents, out of necessity, are seizing the moment to reject conflict and work together for the benefit of their children. In fact, it is possible that the pandemic could create a "tipping point" at which parties will reject the adversarial approach to divorce and prioritize the children's needs. The anticipated tipping point is supported by
■ family circumstances that are drastically changing from day to day. Parents and children are experiencing emotional, physical, and financial traumas that demand immediate attention. Parenting plans that require the interpretation of a judge and countless hours of litigation are impractical. Clients need parenting plan provisions that are straightforward and flexible and can be implemented as their needs evolve.
■ the unique judicial morass resulting from the pandemic. Courts are either closed or operating on an emergency basis, and court staff has been reduced, with further reductions anticipated.2 In addition, legal precedent for parenting plans is sparse. This combination of limited availability of hearings and uncertain case outcomes encourages parental cooperation.
■ the increased importance of the lawyer's role as an advisor. Due to the factors outlined above, clients need attorneys to act primarily as advisors and to assume the role of advocate only in the most extreme cases. Many attorneys are counseling clients to prioritize their children's mental and physical health and adopt a cooperative approach to parenting after divorce.
This article describes the current challenges faced by divorcing parents and children as well as opportunities for enhancing parenting presented by these same challenges. It focuses on the status of the courts in Colorado, the lawyer's role as an advisor, and factors to consider when drafting parenting plans.
The Emerging Parenting Challenges
The COVID-19 virus has made co-parenting evenmore complicated. Parents must now plan for unanticipated events such as illness (the parent's or the children's), self-isolation, job modification or loss, home schooling, mental health issues, working at home, and perhaps food shortages. They must make decisions regarding the necessity to self-quarantine, whether to take out-of-state vacations, choice of childcare if schools are closed, and extracurricular activities. In some instances, parents are dealing with increased conflict, domestic abuse, and an unpredictable future.
The pandemic has created challenges for children as well, with parents unable to reassure them when or whether things will return to normal. Children may suffer anxiety and mental health issues, which may go undetected and/ or untreated. The fear of losing a loved one, or the fear of becoming ill themselves, can create trauma. Social isolation is harmful for many children and devastating for children with special needs. For children experiencing increased conflict or violence at home, the situation is especially troubling. Childhood trauma is extremely serious and may affect the children for the rest of their lives.4
The pandemic is highlighting the need to better educate and support divorcing parents and their children. Attorneys can attend to this need by fashioning creative approaches to divorce, including the use of self- implementing provisions in parenting plans that can be submitted to the court when appropriate.
Colorado courts are striving to balance public health considerations with the necessity to maintain the fair and effective administration of justice for communities. Due to ever-changing local and state guidelines, it is difficult to summarize how Colorado courts are presently handling cases related to C OVID -19 and parenting plans. It is quite likely that while this article is being published, the statewide recommendations and procedures will change multiple times. But regardless of the fluctuating nature of COVID-19 orders and the courts' availability, the last few months may inform how courts will respond to a future resurgence of COVID-19.
When the "stay at home" orders were first put into place by Governor Polis, the Colorado Supreme Court issued an "Order Regarding COVID-19,"6 which suspended various court operations but allowed state courts to continue hearing matters to protect basic constitutional rights and address matters essential to safety and well-being. This order classified hearings on motions to restrict parenting time and parental abduction prevention as "essential."
After the Supreme Court's initial order on March 16, 2020, judicial districts proceeded to publish additional guidelines on their websites. For many judicial districts, this meant vacating and continuing all hearings not related to public health and safety for the foreseeable future. Where possible, hearings were held either online or by telephone. Permanent orders hearings were pushed back into the fall of 2020. Some districts even began accepting pro se filings via email or E-file.
Based on anecdotal information, family law attorneys are currently seeing a major up tick in both motions to enforce and restrict parenting time. These filings are primarily...