Updated: Feb 24
A few weeks ago, I heard a term called "Decision Fatigue" that I thought described very well what a lot of us are experiencing a year into the COVID-19 pandemic. Dealing with the pandemic has led to so many hard choices: Is it safe to eat inside? Who should I allow in my house? Is it safe to go grocery shopping? The reality is that these are really hard decisions, and having to make so many of them so frequently has many of us feeling more and more anxious and strung out. If you are co-parenting with an ex that feels differently about these hard choices than you do, it becomes exponentially more difficult. I wanted to share some guidance on how to approach such disagreements.
At play in such disagreements are the concepts of legal custody and parenting time. If you are a co-parent, most likely you and your ex share joint legal custody, so this article will assume that is the case. Joint legal custody means that you both have a say in major decisions regarding your child, and you are expected to come to agreements with the other parent on such major decisions. A related, but distinct, concept is that of parenting time. Most likely you and your ex share parenting time - i.e. your child (or children) are with you some of the time and with their other parent some of the time. Legally, when the child is with you, you have the right to make "day-to-day" decisions about the child, and, when the child is with your ex, that parent has the right to make those day-to-day decisions.
So, whether a decision is deemed major or day-to-day is a big deal because, if it is a major decision, you both have a say in that decision. If it is deemed day-to-day, you have to defer to your ex's decisions during his or her parenting time, and vice-versa. So, your job - albeit a difficult one - is to determine if you think a Referee or Judge would deem this particular disagreement to be a major one or a day-to-day one. To be clear: either way, you should try to come to an agreement with your ex. If you can't, though, and it is a major decision, then you can file a motion and seek to have the Referee or Judge decide. If it is a minor, day-to-day decision, your best play is likely to defer to the decision of the other parent and take solace in the fact that he or she will have to do the same regarding your day-to-day decisions when the child is with you.
If you deem the decision to be a major one and you are considering filing a motion and putting the question before the Referee or Judge, you should take into account that that person will have their own position along the pandemic spectrum between being overly cautious and overly cavalier. You probably don't know his or her position. Therefore, you should gauge where you are on that spectrum. If you are far to one side or the other, chances are the Referee or Judge will not be that far. You still have the right to put forward that position and argue its merits, but you should be prepared that the Judge will likely not be similarly extreme. Thus, you should use that information to decide whether to file a motion or try to moderate your position. If you decide to moderate your position, perhaps your ex will agree to that more moderate position and you can avoid court altogether. If he or she does not, then you can file your motion and know that, with a more moderate position, the Referee or Judge is more likely to fall where you do on the caution versus risk spectrum.
To be sure, applying the framework I described here to a particular pandemic-related issue is difficult, and there are far too many such issues that can arise for me to discuss them all here. Hopefully, though, having a strategy for approaching the issue will help. However, if you still feel stuck, I would be happy to help you navigate your situation, as I have done for many parents during this pandemic. Feel free to call me for a free consultation: (248) 457-4566.