There is little differentiation between weekends and weekdays in this remote-work, socially-distant world we’re living in. The “Boys of Summer” have not yet returned home to Fenway Park. The Boston Marathon has been postponed. Under these circumstances, it’s easy to forget that Massachusetts schools would traditionally be “on vacation” next week. For children in intact families, this may have little meaning or impact, but for children with separated or divorced parents this often is a week of great significance, as many parenting plans allocate the February school vacation week to one parent and the April school vacation to the other. In those situations, the February parent would have already enjoyed his or her school vacation time with the children, before the country shut down in mid-March. What happens now, in the midst of this pandemic? Here are five key considerations.
- Are the Children’s Schools Observing the Vacation Week? If so, and if there is a Temporary Order or a Judgment allocating April school vacation to one parent, that parenting time should go forward in most cases. In an Open Letter posted online, the Chief Justice of the Probate and Family Court reiterated: “Parenting orders are not stayed during this period of time. In fact, it is important that children spend time with both of their parents and that each parent have the opportunity to engage in family activities, where provided for by court order.” Judge Casey went on to note: “In cases where a parent must self-quarantine or is otherwise restricted from having contact with others, both parents should cooperate to allow for parenting time by video conference or telephone.” So, in the absence of a need to self-quarantine, if April vacation is being observed, vacation parenting time should proceed.
- What if April Vacation is Cancelled? Strictly speaking, and depending on the language in the Order or Judgment, if there is no “April Vacation,” then perhaps there is an argument that vacation parenting time should not go forward, and the regular schedule should remain in place. However, under these unique circumstances, which could not have been contemplated when the Order or Judgment was issued, the consensus among family law practitioners seems to be that vacation parenting time should remain in place, with the vacation-time parent then being responsible to ensure that the children’s schoolwork is done. In the alternative, in some cases, it may be appropriate to postpone the vacation time and make it up later, perhaps with some extra time during the summer.
- What if the Vacation-Week Parent Plans to Travel with the Children? The answer to this question is every lawyer’s favorite: It depends. As noted in my colleague Elizabeth Crowley’s earlier post on custody issues, it is more critical now than ever that parents find a way to work together to reach agreement on decisions implicating a child’s wellbeing, health, and general welfare. This will involve a careful look at what travel has been planned, and what the current advisories are. Travel by air or by car? Staying with family or in a vacation home, as opposed to in a hotel?
- What precautions are being proposed? There is no one-size-fits-all solution to this complex issue. Massachusetts does not have a shelter-in-place order, only an advisory, so travel is not precluded per se, and there is great variance in how people are approaching this. A thoughtful and rational conversation about options and accommodations will, we hope, result in mutual agreement in most situations. If that is not possible, see 4 and 5 below.
- Can I Get into Court if We Cannot Reach an Agreement Regarding April Vacation? Because the Courts remain largely closed to the public, Court intervention is possible only if your situation is considered an “emergency,” and the various Judges have differences of opinion as to what might constitute an emergency. Is the April-vacation parent refusing to log into the children’s Zoom meetings or otherwise facilitate whatever schoolwork might be required next week? Maybe not a great parenting decision, but likely not an emergency. Is the April-vacation parent planning to hop on a flight to Rome with the children? That might constitute an emergency, and a Judge may grant a telephonic Hearing. Note that the protocols for requesting an emergency Hearing vary from county to county and are updated frequently.
- What if My Case is Not an Emergency, but I Still Need Help? If your case does not qualify as an emergency, and if you and your ex cannot agree on how to handle the April vacation (or non-vacation) week, first contact counsel. My colleagues and I have been called upon to help resolve numerous parenting-time disputes during the COVID pandemic, and we can often do so through direct negotiation. Where necessary, we can also facilitate Mediation or other Alternative Dispute Resolution (ADR), which is available remotely via telephone conference, Zoom, and other online forums. Many of the ADR firms that we are accustomed to working with in person during “normal” times, are offering remote services with great success, whether for resolution of a discrete issue or for more comprehensive negotiation of a pending divorce, modification, or contempt action.