New York City based Divorce Attorney and Author of “The New Rules Of Divorce: 12 Secrets to Protecting Your Wealth, Health, and Happiness,” Jacqueline Newman answers our questions and others that directly pertain to divorce in a post-pandemic world.
Orethapedia: If a parent is comfortable with the new covid vaccines, can they prevent their ex (who is not comfortable with the new covid vaccines) from seeing their children?
Jacqueline Newman: I assume you mean that if one parent gets the vaccine and the other does not, can the parent who does not get the vaccine have his/her access to the child restricted? If I have that question correct – I think the answer would be “No”. The standard that is applied when dealing with any custodial test is the “best interests of the child”.
I would think that (unless the Child is compromised in some way and at great risk), a Court would deem that it would be in the child’s best interests to have full access to both parents (even if one if not vaccinated). I imagine there are going to be many people that are going to refuse to take the vaccine at this time for a myriad of reasons and that (in itself) will not be deemed a good enough reason to restrict access to a child. This is going to be a very tricky and sensitive topic that Courts will need to deal with in the very near future.
Orethapedia: Can parents legally forbid their children to see their ex if their ex refuses to take a covid test or has failed one?
Jacqueline Newman: There is a fully executed custody agreement in place, that is a valid contract and should be adhered to until it is modified by the parties or a Court order. So in the case where there is a valid contract that dictates when a parent is scheduled to be with his/her child and that parent refuses to take a Covid test, I do not think that a Court would say that the refusal to take a test in itself is reason for that contract to be ignored.
However, should the child be in high risk for getting sick and the parent tests positive for Covid and then insists on seeing the Child anyway, that would be a good reason (in my opinion) for an immediate motion to be filed with the Court to obtain a Court order that dictates that the custody arrangement should not be followed until that parent is no longer sick. Again, the best interests of the child is the standard and I cannot see how one would objectively say it is the in Child’s best interest to be exposed to person (even if he/she is your parent and there are other options available) who is sick.
We are living in unprecedented times, so nothing can be stated for certain, but we need to hope that common sense prevails and parents can step back from their own needs and look at the those of their children.
Orethapedia: If a parent is comfortable sending their child back to school but, their ex is not (out of fear of covid), who’s side will a judge likely rule on?
Jacqueline Newman: This is a very common dilemma we are now facing. You have one parent who is (especially in New York City) that feels that he/she is paying $60K+ per year for school and that the children need the socialization and school is important – so they must go! That parent is trusting the judgment of the schools and the government who deems to be safe. And then there is another parent who says “Why take chances??”
The other issue that comes up for parents who already have legal custody decided and one parent is permitted to make educational decisions and the other parent is permitted to make medical decisions. So, the parent with educational decision-making says “This is an educational decision – our child goes!” The other parent with medical decision making power says “This is a medical decision – it is not medically safe – our child stays home!” Who wins?? That is for each judge to decide.
Orethapedia: Because many in person after school activities (such as soccer, karate, band) have either been halted or cancelled due to covid, can a parent ask a judge to re-assess their alimony payments since they are no longer paying for these activities?
Jacqueline Newman: This would usually be more of an issue for child support than for alimony. However, there are parents who are claiming that his/her child support should arguably be reduced if the amounts that were determined incorporate the expenses for extra expenses. More often than not, the extra expenses for extra-curricular expenses are paid in addition to lump sum monthly child support so if activities are not happening, then they are not being paid for and there is no reason to involve the Courts.
However, what is sometimes included in alimony (spousal support/maintenance) are expenses for vacations and other activities for the spouse which are not occurring during Covid. For cases that I am working on now and trying to settle, I am running Covid budgets and post-Covid budgets to address the fact that people are not living their pre-Covid lives.
Her book is available on all digital platforms now for you to read.