As most of the country is now under orders to shelter in place, family law attorneys (and their clients) are facing unprecedented issues. Colorado family law attorneys Ann Gushurst and Jon Eric Stuebner of Griffiths Law outline some of the most pressing questions they’re receiving from clients.
How COVID-19 Impacts Parenting Time
Perhaps the most common question for family law attorneys during the COVID-19 pandemic is: Do we still follow our parenting time schedule? The answer will likely be “it depends.” In general, the consensus is parenting time will remain under current orders despite sheltering orders (which explicitly exempt travel that is due to a court order). Changing orders is another matter. In many cities and counties around the country, courts are reducing in-person access to judicial proceedings to only specific essential and emergencCOVy actions, such as emergency restrictions of parenting time, or protection orders.
Salt Lake County, Utah has issued guidance that regular parenting time schedules should be followed unless the child or someone in the child’s home has tested positive for the virus.
There are several factors that could certainly impact whether regular parenting time schedules should continue. Long-distance parenting time schedules may prove more challenging to follow. This is especially true if you don’t know whether a child will be able to get home or if a child has to fly “unaccompanied.” Additionally, whether a child or family member in one home is sick or exhibiting coronavirus symptoms may impact whether the child should travel to the other parent’s home. Generally speaking, unless the person’s immune system is already compromised due to a preexisting condition, children are not in the risk pool in terms of COVID-19 infection. The primary danger is not that the children will be exposed and get sick, but potential dangers do include:
- Children exposing at-risk family members, such as grandparents or others with compromised immune systems, who live in either home due to traveling between homes;
- Children being in a location where the medical facilities are likely to become overwhelmed with people who are sick and/or dying. In such locations, a broken arm or leg or more serious medical need might not be treated, or might be addressed immediately, because the local hospitals are overwhelmed;
- Children who have compromised immune systems that may be at much higher risk if they contract the virus.
There is no precedent for how to approach parenting time issues during a pandemic.
Family law attorneys are going to have to navigate new and hard issues in a sea of heightened emotions. Unfortunately, COVID-19 is driving some opportunistic bad behavior. In Colorado, many family law attorneys are discussing filing emergency motions to restrict parenting time, or parents refusing to return children because of the shelter-in-place order currently in effect. Family law attorneys, in general, should be warned that potential consequences, such as sanctions against clients and attorneys, will likely follow for unwarranted attempts to restrict or limit parenting time. The general consensus now is that in most cases, a shelter-in-place alone or generalized unspecific concerns about the coronavirus will not justify such actions.
How COVID-19 Impacts Financial Issues
COVID-19 is not only impacting the economy nationwide but is impacting families on a personal financial basis. Parents are facing the loss of jobs, reduction in hours, or are working from home. Many family law clients have questions about paying spousal and child support. These questions may range from “How am I going to meet my monthly child support and maintenance obligations?” to “What do I do if my spouse stops paying their court-ordered obligations?”
Most jurisdictions already allow for modifications of obligations based upon “continuing and substantial” changes. The bad news is that the ability to address these issues with the court may be limited, particularly on any sort of forthwith basis. It may be challenging for clients who rely on support on a month-to-month basis to survive to have to wait several months before a motion might be acknowledged by the court, let alone ruled upon. Under certain circumstances, it may be worth filing a motion sooner rather than later, even if you know the motion might not move forward for several months (get in line before the line gets too long). This is another area where attorneys should consider alternative dispute resolution such as mediation or arbitration. Many mediators and arbitrators are accommodating telephone appearances or use of videoconferencing platforms, such as Zoom. These options may provide a more immediate way to resolve these disputes.
Family law attorneys may also see disputes concerning the federal stimulus package. As of the writing of this article, it appears that most Americans will receive funds as part of the stimulus package ($1,200 for each adult and $500 for each child). The questions/issues family law attorneys can expect to receive are:
- Who gets the money for the kids? It is likely that the funds will be allocated to the parent who claimed the child credit.
- Should those funds be split equally, proportionate to income, not at all?
- I claimed the kids this year for tax purposes, shouldn’t I just get it?
- I already pay child support; shouldn’t I keep the money?
- I get child support because I need the help, shouldn’t I get the money?
- I have more parenting time; shouldn’t I keep the money?
Unfortunately, there is no definitive answers to these questions right now.
The federal stimulus package includes other provisions to support individuals and small businesses. The 10% penalty for early withdrawal of from a qualified retirement account will be waived for distributions up to $100,000 for coronavirus-related purposes. Such early distributions will be taxed over three years, with the option to repay the amount back to the retirement plan over the three years. The stimulus package also provides several options for businesses to help stay afloat. Family law attorneys should familiarize themselves with these provisions.
There is another side to all of this that we conclude with: some families are finding that their shared goal of keeping their children safe against an unknown but powerful threat is creating collaboration and communication. Parents who couldn’t agree on the slightest things are finding that they can find consensus when it comes to keeping their beloved children safe. So, for all who are facing tough decisions right now, please know that always in family law compromise is your best option—now more than ever.