Q: I am separated from my children's father. We generally get along well but have been clashing during this lockdown. We have a 5-5-2-2 share care arrangement. I don't want the children to be going between our homes. I think it is too risky to be having frequent changeovers. Their father works a lot so the children would spend most of their time in front of screens if they go to his home. Next week when the children are supposed to be in his care, I want to take my 14-year-old son with me to get vaccinated when I do. If the Government's instructions are to stay home and limit interaction with others, does this mean I can just keep the children with me until the lockdown lifts?
Answer: The latest Covid-19 alert level 4 lockdown has been challenging for everyone. This is especially true for separated parents trying to co-parent. The current lockdown is the most restrictive since the first lockdown last year and the first in a long time for those outside Auckland. The Delta variant is also more transmissible and more likely to affect children, increasing stress for parents.
Continuing shared care
Lockdown should not be used as an excuse for one parent to change a shared care arrangement unilaterally. The Family Court has made it clear that doing so will not be looked upon kindly by the Court. Where possible, children should continue to see both parents.
Maintaining existing care arrangements provides children with a familiar routine, which is important during this time of uncertainty. The parenting arrangement can be adjusted so that it fits with the current circumstances, but only with the agreement of both parties.
The Ministry of Justice has issued guidelines for shared care in lockdown. These guidelines specify that children can continue to move between their parents' homes in level 4 so long as the homes only combine two bubbles and those two homes are in the same or neighbouring territorial authorities.
Two home bubble
If your children move between your homes, each home becomes part of a shared bubble. At level 4, only two homes can be part of the shared bubble. If you or your children's father have a partner with their own children, they may have their own shared bubble with their other parent. That would mean three homes were linked by children moving between them. If that is the case, then changes to the parenting arrangement would be needed to ensure the two-home bubble rule was followed.
Outside the neighbourhood
The two parents' homes must be in the same or neighbouring territorial authorities. Territorial authorities are the area covered by your local city council or district council area. You can find a map of territorial authorities on the Local Government New Zealand website.
Once areas outside of Auckland move out of level 4, it will not be possible to leave Auckland's borders even for a changeover of care.
You will also need to discuss what would happen if anyone in your shared bubble becomes sick or has visited a location of interest. In this case, the children would not be able to move between bubbles.
Staying in contact
If movement between homes is not possible you should organise for the children to speak with their father regularly. Zoom or FaceTime calls are a great way to stay in touch. You should be generous with allowing contact.
It is also important for your children to stay in contact with extended family members, such as grandparents, if they are seeing them regularly. A child's sense of time is different to an adults, so a few weeks can seem like a lifetime.
If your changeovers usually occur at school you need to agree on when and where changeovers will occur in lockdown. Only travel where you need to. You may need to explain your travel if pulled over by police. If you have a court order for your shared care you should carry that with you to help explain your travel. Where possible, travel in private vehicles.
You and your children's father should discuss whether the care arrangement may allow Covid-19 to spread and reach an agreement to minimise risk. Such an agreement could be fewer changeovers, wearing masks and using hand sanitiser or getting yourselves and your children vaccinated.
Different parenting styles
Differing parenting styles are a common point of conflict between separated parents. This is an issue that can be intensified by lockdown as parents have other pressures, such as balancing childcare and work commitments. It is important to remember that everyone will be coping in their own way. Try to keep the children out of any disagreements.
You may have more time available to encourage the children to do their school work and be frustrated that this does not continue with their father. You can try to explain to their father that you do not want the children spending too much time in front of screens, but it may fall on deaf ears. To avoid conflict, consider relaxing the rules while the lockdown continues. For the benefit of the children, try to agree on a routine that will continue at both houses.
Vaccination of children is a guardianship issue. Your children's father will need to agree before you take your son to be vaccinated against Covid-19. Currently, children 12 and older can be vaccinated. If he is hesitant, there is helpful information on the safety of the vaccine available at covid19.govt.nz.
If you cannot agree, you can attend mediation through a Family Dispute Resolution provider. The FDR Centre and Fairway are continuing to conduct mediations remotely online. If you cannot reach an agreement or the other party refuses to participate, you can apply to the Family Court for an Order to Settle a Dispute between Guardians. The Court can order that your child be vaccinated if it believes that it is in the welfare and best interests of your child. The process of obtaining a decision from the Family Court may take six months or longer. In contrast, mediation typically takes four to six weeks.
Your child's views
The Ministry of Health has recently published guidelines stating that if the child has good understanding, they can say "yes" or "no" to getting the vaccine. This means your son could give consent to being vaccinated if he is old enough to have an understanding of the consequences.
Shared care arrangements should continue wherever possible. It may not be possible for children to move between homes if you live too far apart, one person in the household is in isolation or doing so would risk more than two bubbles being mixed. In that instance, indirect contact through calls or other social media should be generously encouraged. Tensions will likely be running high as this lockdown has weighed heavily on everyone. Remember to be kind to each other and work as collaboratively as possible to resolve any issues that arise.
• Jeremy Sutton is a senior family lawyer, specialising in divorce cases where there are significant assets, including family trusts and complex business structures.