By Amy Silberstein, Divorce and Family Law Attorney

The below article was published in the Illinois State Bar Association’s Section on Child Law Newsletter, January 2021

Co-parenting a child between two divorced, divorcing, or never married parents can be a challenge in “normal” times. While we have all learned many things throughout the past year, including limiting our grocery store trips and staying home on the weekends, we have also learned that co-parenting during a pandemic creates additional and unexpected challenges. Even co-parents who have a generally stable relationship have faced co-parenting challenges this year.

Some of the new and unexpected co-parenting challenges that arose this year as a result of the pandemic include:

• The issue of travel, whether alone or with a child
• How social a child or parent should be with friends or family members outside of his or her household
• Whether a child should participate in remote or in-person learning
• What to do if a parent has been exposed to COVID-19, yet still wants parenting time

While each of these problems involves varying risk levels between the two parents, they have still been problems that must be addressed between co-parents—and they usually must be resolved in a short amount of time.

From the outset of pandemic-necessitated restrictions across Illinois, several counties, including Cook County, released their own guidelines related to the pandemic. Cook County General Order 2020 D 8, released on March 18, 2020, specifically states, in pertinent part, as follows:

3. Unless otherwise directed by further order of Court, the parties shall continue to follow their respective parenting time schedules.
4. Nothing herein prevents parties from altering a possession schedule by agreement if allowed by their court order(s), or courts from modifying their orders. Parties are strongly encouraged to act in the best interests of their children and are strongly admonished from taking acts that would imperil the physical health of any child, including unnecessary or discretionary travel.

See Cook County General Order 2020 D 8, March 18, 2020.

In short, neither COVID-19-necessitated restrictions, nor the related Illinois state and local guidelines alone, have been deemed a sufficient reason to limit or withhold parenting time. However, a parent not acting in the best interests of their child may provide a sufficient basis for limiting or withholding parenting time.

Unsurprisingly, not every parent agrees about what is or is not in their child’s best interests. Disagreements between parents about their child’s best interests is not a new phenomenon, and the COVID-19 pandemic has called into question many previously “normal” behaviors that may now be deemed unacceptable or unsafe.

While the Illinois travel restrictions have not limited travel for the purpose of parenting time exchanges, it does limit unnecessary travel. After discussing client travel plans with multiple child representatives and guardian ad litems throughout the course of the pandemic, the general thought seems to be that a parent should not be traveling with children unless absolutely necessary. In fact, there seem to be few circumstances when travel with children is deemed necessary. If two parents disagree about whether one parent may travel with the children, the general consensus throughout the pandemic appears to be that most judges would not hesitate to deny a travel request should the issue be put before court. That being said, there is no guarantee that a judge will deny such a request; but, if parents can reach an agreement for behavior that may be considered risky by a judge, it is unlikely that a judge would scrutinize or overturn such an agreement.

Often, if both parents are reasonable and critically thinking, deferring to the local government and/or Centers for Disease Control and Prevention (CDC) guidelines has helped parents reach agreements without the need of turning to others or to the Court for guidance. The local government and CDC guidelines have been well thought out by scientists and other individuals educated about both COVID-19 virus and the local communities and community transmission rates. It is hard to argue around the CDC and local government guidelines, if you are working with a reasonable person. If a parent does travel or is exposed to COVID-19, with or without the children traveling or being exposed, the best course of action will be to follow the local government or CDC guidelines related to quarantining, and to not insist on seeing the children even if the quarantine period does fall during the parent’s parenting time.

What happens if parents cannot reach a parenting time agreement on their own during COVID-19?

If two parents are in the middle of a divorce or parental allocation case and already have a guardian ad litem or child representative involved in their case, the easiest solution will be to bring the issue to the guardian ad litem or child representative and let him or her weigh in on the issue.

If a guardian ad litem or child representative is already involved with a case, the most certain course of action—to avoid litigation and an unpredictable court ruling—is for a parent to defer to the recommendation of the guardian ad litem or child representative. The court will almost always defer to his or her recommendation as well, so reaching an agreement based on the recommendation will save both parents the time and cost of going to court.

However, not every co-parenting situation can be so easily resolved, as many co-parents do not have a readily available third-party attorney looking out for the best interests of their child or children. Another option is to mediate the issue—but in a time sensitive scenario, resolving the issue via mediation is not always feasible.

The final option, when agreement seems to be out of reach, is to bring an emergency or non-emergency pleading in court to either try to limit one parent’s parenting time, or to force a parent withholding parenting time to allow the other parent to see the child or children. If opting to bring a pleading in court related to COVID-19 and pandemic-appropriate behaviors, we have seen the courts err on the side of caution in determining what kinds of behaviors are in the child or children’s best interests, when looking at disagreements related to COVID-19. Choosing to be more risk adverse with behaviors for the remainder of the pandemic, especially if dealing with a difficult or disagreeable spouse or former spouse, might be the best way to avoid going to court on a COVID-19 related emergency.

The best way for a parent to handle a conflict around COVID-19 and risky behaviors is to remember to put the child’s best interests ahead of their own desires and wants. It is also important to remember that a child’s best interests may be child- and family-specific, and there is not a one-size-fits-all solution to many disagreements. Another good reminder is that the COVID-19 pandemic and disagreements regarding risky COVID-related behaviors will not last forever (hopefully).

Contact Our Family Law Firm in Evanston, Chicago, Lake Forest and Oak Brook

If you are looking for advice on how to modify either your parental decision-making authority or parenting time agreement, or need a family law attorney to support you during the process, contact Stern Perkoski Mendez for a free consultation. We can be reached at (847) 868-9584 and can meet you at our offices in Evanston, Chicago, Lake Forest and Oak Brook, or at another location.