Sunday, March 29, 2020

TOP TIPS FOR DIVORCED OR SEPARATED PARENTS DURING THE MOVEMENT CONTROL ORDER AND THE COVID-19 PANDEMIC

 

Since the 2-week long Movement Control Order (“MCO”) came in force on 18th of March, 2020, the daily routines of many have been drastically impacted as schools and businesses have been forced to close and movement being restricted save for very limited reasons, e.g. to perform an official duty, to make a journey to and from any premises providing essential services, to purchase, supply or deliver food or daily necessities, to seek healthcare or medical services or any other special purposes permitted by the Director General.
With so much uncertainty in the air and our Prime Minister’s latest announcement that the MCO is now extended for a further two weeks until the 14th of April, 2020, where does it leave the separated or divorced parents who have joint-custody of their child or are entitled to access but are unable to exercise it because of this MCO?
These real concerns are not specific only to divorced or separated parents in Malaysia, as many co-parents in other countries are also facing the same issues. So hopefully, to help take the edge off your co-parenting concerns, here are our TOP 8 SUGGESTIONS to help divorced or separated parents to get through this confusing time.

  1. STAY INFORMED AND ALERT OF THE NEWS
Stay abreast of the latest news regarding the Covid-19 situation and be aware of the guidelines and the credible health advice given by the government on how to protect yourself and your loved ones from Covid-19 infections.
Good sources of information are generally the Ministry of Health (@KKMPutrajaya) or the Prime Minister’s Department’s (@jpmgov_) twitter or other social media platforms as they are constantly being updated with the latest news and reports. Alternatively, faithfully check credible news outlets, such as the Star, News Straits Times, the Malay Mail, Berita Harian, Harian Metro and Sinar Harian.

  1. EDUCATE AND REASSURE YOUR CHILD
This can be a confusing time for children as they are suddenly on an “extended” school holiday but are told they cannot go out and are forced to wear a mask for no apparent reason.
It is important to explain and make sure that your child understands why he or she needs to take precautions to protect himself or herself from Covid-19 and the need to abide by the MCO. You should be honest about the seriousness of the pandemic so that your child understands the situation. However, it is also important not to overly alarm your child and to reassure him or her that things will improve and stabilise over time.
If you are not sure how to explain the Covid-19 situation to your child, please feel free to check out the various online articles / videos providing guidelines on how you may do so without scaring your child unnecessarily. Some websites you may refer to are:

  1. BE A GOOD ROLE MODEL
Abide by the MCO and stay at home. Practice good hygiene habits and instill the same in your child. Children, particularly young ones, learn best by watching and observing those around them. Hence this is the best time to put the term “monkey see, monkey do” to the test.
You could teach your child how to cook, watch shows together, talk, read a book, help him or her with homework (if you know how!) or maybe do some yoga together. Spend as much time to bond with your child because who knows when such an opportunity will come about again.

  1. BE REASONABLE WITH ACCESS
Notwithstanding the MCO, many parents are confused about what the Covid-19 MCO means for their children and access arrangements.
Some useful guidance may be obtained from the well-written judgment of 24.3.2020 by Justice Pazaratz of the Family Court of Hamilton, Canada of Ribeiro v Wright (2020) ONSC 1829 (CanLII). The main points of his decision from paragraphs 10 to 18, are reproduced below:
“10      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. 
11        In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing. 
12        In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).
13        In some cases, a parent’s personal risk factors (through employment or associations, for example) may require controls with respect to their direct contact with a child.
14        And sadly, in some cases a parent’s lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered.  There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.
15        Transitional arrangements at exchange times may create their own issues.  At every stage, the social distancing imperative will have to be safeguarded.  This may result in changes to transportation, exchange locations, or any terms of supervision.
16        And in blended family situations, parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in a household – including children of former relationships.
17        Each family will have its own unique issues and complications.  There will be no easy answers.
18        But no matter how difficult the challenge, for the sake of the child we have to find ways to maintain important parental relationships – and above all, we have to find ways to do it safely.”
(Emphasis ours)
A similar view was shared by the Irish District Court President, Colin Daly who was of the opinion that, although the restrictions put in place by the Irish Government meant the detail of every access order “may not be full implementable”, it was acceptable for parents to temporarily vary the access arrangements, provided this was done by agreement. He also said that where a child does not get to spend normal access time with a parent, the court would expect contact to be maintained regularly by video calls or over the phone.
Therefore, where court orders are involved or a parenting plan is in existence, parties are to comply unless there is a reasonable excuse not to. Keep in mind that under a joint custody order, both parents are entitled to have shared custody of the child and the reason such an order exists is for children to spend time with both parents, to facilitate smooth handovers and avoid acrimony/arguments between the parents, to minimise distress to the children.
Some examples of a “reasonable” excuse with Covid-19 considerations would include, among others:
    1. a medical professional from the Ministry of Health directing a parent/child(ren) to go into quarantine;
    2. Evidence or examples of behavior or plans by the other parent which breach COVID-19 safety protocols, failure to adhere to social distancing and blatant non-compliance with public health directives.
Thus, in the event of breach of the court orders or failure to provide a reasonable excuse, the other parent may file an application to court and the parent in breach may be ordered to provide replacement access time and/or face potential contempt proceedings at a future time.

  1. BE CREATIVE AND FLEXIBLE
Understandably many people have been affected by the MCO, with many having to work from home or having suffered a change in working hours or simply being unable to commute due to the MCO restrictions and police road blocks. Offer replacement access periods to the parent who has not been able to access the child due to the MCO. It is always best to be reasonable in such circumstances, as any unreasonable behavior is generally frowned upon and hard to justify in court.
The custodial parent ought to consider discussing alternative modes of access to the child with the other parent. For example, suggest or encourage the child to contact and spend time with the non-custodial parent through online conferencing platforms such as Facetime, Skype, Zoom, et cetera. You could also suggest the child and non-custodial parent exchange their favourite books, play online games together, watch Netflix together, et cetera.
At all times, bear in mind that the Family Court expects parties to be reasonable in accommodating requests by the non-resident parent when usual access arrangements in public locations are no longer permitted by reason of the MCO.
So parents, be the bigger person during this crisis. Where possible be kind to your child(ren)’s other parent. If this is too difficult, then strive for a civil exchange.
To quote Justice Pazaratz in Ribero v. Wright, the Court’s expectations of parents during these challenging times would be:
“We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.”

  1. BE TRANSPARENT
Keep the non-custodial parent informed about any suspected or confirmed exposure to the Covid-19 virus, particularly if the child is exhibiting symptoms of the infection. Keep each other informed of the steps you wish to take to protect the child before the child is taken into your care so that the other parent can feel reassured about the child’s health and wellbeing.

  1. BE SAFE
Many families may be struggling with disruption to their lives which may result in heightened stress and anxiety. Vulnerable members of these families would need support particularly those who may be facing domestic violence and sexual abuse. Apart from reaching out to the police, family members in distress may reach out for help by calling these hotlines:
  • Women’s Aid Organisation (WAO): 03-7956 3488 / SMS or Whatsapp (24 hours): 108-988 8058
  • WCC Penang: 016-428 7265/ 011-310 84001 /016-418 0342 / 016- 439 0698
  • Talian Kasih Helpline (Ministry of Women, Family & Community Development): 15999
  • All Women’s Action Society (AWAM): 03-7877 4221 / awam@awam.org.my

Mental Health counselling:
  • Befrienders: Hotline 603-79568145 / email sam@befrienders.org.my
  • Mercy Malaysia Psychosocial Support Line (8am – 5pm): 011-6399 6482/ 011-6399 4236 / 03-2935 9935
  • Kin and Kids, Marriage Family and Child Therapy centre: +6019-380 0902 / +6018-667 0902
  • Rekindle (9am – 6pm, Mon – Sat): 019-369 8519 / email: enquiries@rekindletherapy.com
  • CLM: 03-2095 6360 / make an appointment via their website http://clm.org.my/about-us/
  • Department of Social Welfare / Jabatan Kebajikan Rakyat: Headquarter’s Telephone No. 03 – 8000 8000 / You could head to any of the District Social Welfare Office / state near you to make inquiries. You can check for the closest officer at: http://www.jkm.gov.my/jkm/index.php?r=portal/directory&id=UzlRTjkxUVFUa2Q5a0hFVm1UQXZuUT09
  • Alternatively, you could drop by any Health Clinic / Klinik Kesihatan to obtain a referral letter for counselling at a government hospital.

  1. BE UNDERSTANDING
Many people are suffering financially from the MCO and it seems inevitable that the future will bring economically challenging times. Therefore, it is all the more important that parents who both care for the wellbeing of their families, should continue contributing to spousal and/or child maintenance and cooperate for their child(ren)’s best interest.
If the paying parent is suffering some financial hardship, he/she should still try to contribute what he/she is able to afford, even if it cannot be the full amount. The receiving parent should similarly try to be kind and accommodating under the circumstances, to espouse the spirit of generosity advised by Justice Pazaratz: 
“Right now, families need more cooperation. And less litigation.”
“None of us have ever experienced anything like this. We are all going to have to try a bit harder – for the sake of our children.”

Contributed by:
Goh Siu Lin and Denise Lim
Family, Probate & Trusts Department
Messrs Kee Sern, Siu & Huey
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