The government may try to limit your movements and restrict who you can socialize with during the coronavirus pandemic — but can your ex?
One Brooklyn mother of two told BuzzFeed News her ex-husband sent a proposed court order stipulating that she must abide by all New York state rules regarding social distancing, not attend any nonessential gatherings, and not have any visitors while their children are with her.
“It really feels like my rights are very The Handmaid's Tale,” she said, referencing Margaret Atwood’s classic story about women being subjugated into motherhood by men.
The woman shared the social distancing contract with BuzzFeed News but asked for it and her identity to remain anonymous out of concern for her safety. Her husband had always been emotionally abusive, she said, and the pandemic gave him the opportunity to try to control her under the veneer of safety and concern for their kids.
"The pandemic just reset everything," she said. “I had distanced myself from him, and it feels like the government is saying I can only be with him and my children."
The fear of COVID-19 has introduced a new legal maneuver for warring separated parents to fight with each other over: the social distancing contract. Family lawyers tell BuzzFeed News that many separated parents are using the pandemic as an excuse to try to place further restrictions on their exes, including social distancing contracts and other changes to custody agreements. While the aims of such contracts sound honorable, as a way to help public health or protect children, their existence can also be used to emotionally abuse the other parent, according to lawyers. Parents might be prevented from dating a new person, banned from seeking help with childcare or cleaning, or unable to receive emotional support from family and friends.
“COVID-19 is a giant magnifying glass," said Susan Myres, a family law specialist in Texas and president of the American Academy of Matrimonial Lawyers. "And if he was, or is, controlling during their marriage, it's going to feel even stronger now."
“This pandemic really created the perfect storm for someone who wants to just fight.”
Judges usually try to avoid limitations on parenting choices — although some families may need or want safety guidelines, particularly if there are health issues or a parent is an essential worker — but lawyers also warned that social distancing contracts create unnecessary drama in high-tension custody and divorce battles.
“This pandemic really created the perfect storm for someone who wants to just fight,” said Alton Abramowitz, a matrimonial lawyer in New York City, who said he has heard of “hundreds” of similar social distancing contracts.
“I haven’t seen any statistics and what I’ve heard is purely anecdotal, but I know a lot of the judges were complaining that they were overburdened with these kinds of custody issues,” said Abramowitz.
He described a social distancing contract as “overkill,” but one he's seeing mainly in relationships that were already strained.
Helen E. Casale, a family lawyer in Pennsylvania, said that as soon as the pandemic began, people began questioning custody agreements and trying to make new restrictions. “Everybody's senses are so heightened, even cases of mine that were really quiet for a while have all of a sudden become high-stress,” she said.
Casale had one client whose ex-husband tried to insist she sign an “agreement” to follow all of Gov. Tom Wolf’s social distancing rules and restrictions. Her client did not sign the proposed social distancing contract, and she recommends other people in similar situations ignore them. "This is unnecessary," said Casale. “It’s an example of him exerting this control, and he thinks he has free rein to do so because the governor is saying he can.”
The social distancing contract that the ex-husband of the Brooklyn mother wanted her to sign used language taken directly from the New York state emergency COVID-19 guidelines. She believes that helped affirm her ex's behavior, even though she had been following strict social distancing guidelines herself (the children’s babysitter has not cared for them since March, she banned all playdates, and only had occasional socially distanced visits with friends outside). “He can ask me this now and he’s justified by the government,” the mom told BuzzFeed News.
However, since the pandemic has dramatically changed many family and living dynamics, separated parents may need to adjust their legal agreements and adopt a pandemic parenting plan, said Katherine Miller, a New York divorce attorney and founder of Miller Law Group. "What seemed 'overcontrolling' might be appropriate," said Miller. "What seemed 'appropriate' might be reckless these days. We really don't know."
Miller noted that parents may split custody differently — such as one week on, one week off, rather than switching every three days — in order to reduce transmission and lessen exposure.
"I have former clients living with their former spouses," she said, pointing out that particularly when New York was in full shutdown, some saw it as the only way to safely protect and care for their children.
"No one I know who is doing that is enjoying it," she added.
But family courts — many of which shut down for months and have only recently reopened via videoconferencing — are wary of being used and abused by parents under the cover of the coronavirus.
Casale, the Pennsylvania lawyer, said judges will not want to implement social distancing contracts unless a parent has a history of putting a child in danger. Courts don't exist to tell a person a list of rules of how they can and can't raise a child in their home, she said.
"Think about these parents: The reason they have their custody issues is they don't agree on how to parent their children," said Casale, a shareholder at the legal firm Hangley Aronchick Segal Pudlin & Schiller.
But legal issues have arisen, noted Myres from the American Academy of Matrimonial Lawyers. Some parents who had custody at the time the shutdown began did not want to return the children to the other parent. Others fled their homes in cities and were suddenly long distances from the other parent and did not want their children to travel.
“Courts have said with a unified voice," said Myres, "‘After this is over, if we get wind that you have used COVID-19 to keep the other parent away, we will rectify that.’"
The pandemic has amplified particularly abusive or controlling relationships. Reports of domestic violence have increased. The United Nations Population Fund estimated that three months in quarantine would see a 20% increase in intimate partner violence. But it’s not just physical abuse that is at issue.
“I think the classic abuser — I’m not talking about domestic violence but someone who uses control — really finds a lot of this tempting,” said Abramowitz. “They really want to insinuate themselves in the other parent’s life to an unnecessary extent even though they are living apart."
In the case of the Brooklyn mother, she found the social distancing contract idea "crazy," but her legal team initially did not see it as part of her ex’s abusive behavior.
“My lawyers seemed to not know how to handle it and were almost giving in," she said. "It seemed like they were taking it seriously. They couldn’t believe it was a power play."
Later, her lawyers told her ex that they didn't believe a social distancing contract was necessary and he dropped the request.
The mother said she wanted to share her story because she's aware that other parents in abusive or emotionally controlling relationships may not be able to.
"At any other instance, you could look from the outside in and say, This seems justified, but knowing his past actions it falls in line with everything else," she said. “He’s using the pandemic to not let us make any plans.”