For a related article on the International Bar Association website, click here.
“None of us know how long this crisis is going to last. In many respects we are going to have to put our lives “on hold” until COVID-19 is resolved. But children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.”
(Justice A. Pataratz in Ribeiro v Wright, Ontario Superior Court at Hamilton, 24 March 2020)
On March 11, 2020, the World Health Organization declared COVID-19, the disease caused by the coronavirus, to be a pandemic. It was expected that a significant proportion of the world population would be infected. Countries around the world declared a state of emergency and issued a variety of restrictions and directives aimed at implementing a policy of social distancing in order to contain the spread of the disease.
These restrictions restrict interpersonal physical contact to members of the same household. The situation creates particular challenges and difficulties for families in which the parents are separated or divorced and live in separate households. The main question that arises, and which is examined in this report, is: How do divorced families cope with custody arrangements – the times that the children spend with each of their parents, how they move from one home to the other, and how supervised visits are conducted – while complying with social distance practices and ensuring the children’s physical and mental health.
The countries and states included in this review are: Israel, the US states of Arizona, Virginia, Vermont, Texas, Nevada, New York and California, the Canadian provinces of Quebec and Ontario, Australia, England, Ireland, Spain, Italy and Sweden. Those countries were chosen because we were able to obtain substantial data on the subject, with an emphasis on countries where the spread of the epidemic and the scale of the crisis were greater than in Israel (Spain, England, the US, and Italy). In addition, most of them had well-developed care services for children and families that were divorced or separated before the COVID-19 crisis.
The review was conducted at the beginning of April 2020 and was largely based on open sources (websites, official documents, opinion columns written by experts, and articles in the media), particularly the websites of local social services and NGOs or private companies that provide legal advice in family court hearings. Additional information was obtained in discussion with professionals working in the social services and family courts. 
In the first part of the Hebrew report, we provide background data on the way that the countries and states in the review are managing the pandemic. We then describe the official guidelines issued with regard to the time spent by the children with their parents. Next we describe the guidelines for activity of the supervised visitation centers for parents and children, and conclude with a description of the “soft” (non-binding) guidelines to parents on how to divide the children’s time with them, and recommendations to the service system on providing the best support to families when the parents do not live together.
- Most of the states/countries in the review are contending with high morbidity rates of COVID-19 and all have issued government emergency regulations with restrictions on the freedom of movement and on leaving home for non-essential purposes. The restrictions imposed in Sweden do not limit the freedom of movement or going outside the home.
- In all of the countries/states with emergency regulations limiting the freedom of movement in the review (apart from Spain), children whose parents are living apart were exempt from the restrictions on movement. The emergency regulations permit the parents to travel with their children so as to divide the time the child spends with each of them according to the court order.
- In all of the countries/states in the review, there are recommendations that the parents be open to changes in the division of time spent with them according to circumstances, such as changes in employment or the need for isolation.
- In every country/state (apart from Australia) the most common instruction is for the parents to reach an informal agreement either directly between themselves or through an intermediary or mediation, and to document it in writing so that it can be reviewed when life returns to normal. In extreme cases (such as domestic violence or child abuse), it is possible to refer to the family courts, which are now working in a reduced format, for a legal ruling as to how to divide the time with each parent.
- In Australia, by contrast, the family courts are working online, and all families can submit an online request for a court to approve an agreement regarding a change in the division of time spent with the parents or for alternatives to existing orders.
- Apprehension has been expressed that the situation could be exploited and that some parents would take advantage of the pandemic to have a restraining order placed on the other parent, or interfere with contact between the child and the other parent, without justification. In England and Ireland, it was noted that such cases would be examined and sanctions placed on those parents.
- In countries for which we found information about the activities of supervised visitation centers for parents and children during the pandemic, efforts are made to continue activity. However, face-to-face meetings between the child and the non-custodial parent are not held due to the large number of participants at the meetings and in order to respect the principle of social distancing. Instead, efforts are made to hold supervised and semi-supervised meetings online.
- In most of the countries/states in the review, government assistance and social services for families in separation or divorce situations operate a reduced emergency service, and some third sector and private sector organizations offer assistance in these areas. In contrast, in Australia and Canada, government assistance to these families has been increased.
- All of these countries/states have issued “soft” (non-binding) guidelines for inter-parental relationships on how to divide the children’s time with each of them. At the present time, flexibility, transparency, compromise and adaptability are recommended and each parent is asked to act fairly towards the other parent both emotionally and legally.
- The recommendations therefore are as follows:
- To ensure maximum care of the child’s health by a full exchange of information and mutual updating between the parents about the health of the child and family members
- To carry out a neutral and fair transfer from one home to the other by means of a third party such as a friend or relative,
- To maintain open, ongoing and frequent communication between the child and the non-custodial parent or the parent with whom s/he is not staying at the time
- To reduce the child’s exposure to parental conflict
- That each parent be considerate of changes in the other’s economic situation
Recommendations for adjustments of the social service and support systems to provide maximum support to families where the parents are living apart:
- Increase assistance from the professionals to mitigate the intensity of the parental conflict
- Strengthen the channels of assistance, counseling and guidance for parents living apart
 We are particularly grateful to Judge (retired) Philip Marcus, formerly of the Jerusalem Family Court, for his help in finding relevant information through his contacts with professionals involved in working with families in countries abroad.
For MJB’s publications on the COVID-19 pandemic in English, press here.
For MJB’s publications on the COVID-19 pandemic in Hebrew, press here.