Family Law Questions During COVID-19

Do You Have Questions About Child Parenting Time During COVID-19?

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Or Watch Our Q&A Video With Family Law Attorney Tim Durkin and Find COIVD-19 FAQ’s Here


Frequently Asked COVID-19 Questions

Are family law courts even open right now?

Yes, they are. They’re sort of running on a skeleton crew. They’re really only addressing emergencies at this point, so, orders of protection if you have an emergency, if there’s a domestic violence issue, and sadly we’ve seen a spike in that. And then of course emergency orders. The family court issued an advisory during this period for parents and parenting plans, and maybe we’re going to get to that here shortly. But one of the questions we’re getting is “Hey what should we do about our parenting plan? We don’t agree on how to social distance. My ex, or the father or mother isn’t following guidelines. Can I modify the parenting plans? Should the child stay with me? Should we do that so we don’t have as much back and forth?” And what the courts have done is they’ve issued this advisory that says: Follow the parenting plan to the T right now, unless there is an actual emergency. And emergencies are typically described by the court as sort of, imminent danger, or an imminent threat or harm, not potential threat or harm. So yes, the courts are open to answer your question. And we’re open for business, and we’re getting a lot of calls.

What about just ongoing regular cases, are those cases on hold, or are they being pushed off the court docket right now until a later date?

Yeah, if you have a case right now, you’ve probably noticed that a lot of these cases are being continued or put on hold. We’ve had a lot of trials and a lot of hearings that quite frankly the judges have just said you know what, we’re gonna continue this and we’re getting these things pushed back probably about three or four months, a lot of them indefinitely. So if your case, if you have a current family law case, and you think that things aren’t happening as quickly as you’d like, or you’re getting anxious, we empathize with you. But we have a feeling that once the advisory is lifted, that these courts are gonna be open, and they’re just gonna be churning.

What can I do if my ex is refusing to follow our order/parenting time plan right now due to COVID-19?

Well, one of the, and I believe the opinion that I refer to will be put up on our website I guess. It’s also on the supreme court’s website. But one of the issues I believe that is addressed there is enforcement issues. So if you have a parent who is not honoring the parenting plan, you can file a petition to enforce the parenting plan. They are hearing enforcement issues, I failed to mention that. So emergencies and enforcement’s.

I lost my job and can’t keep up with child support, what are my options in a time like this?

That’s a tough one, and I think that’s one that we’re gonna be dealing with a lot. In theory, when there is a change of income, you could modify support. However, to do so you’ve got to prove a couple of things. One, you’ve got to prove that there’s been a substantial change in circumstances. A loss of job is typically a substantial change and usually qualifies. The second thing you have to do is prove that it’s continuing and ongoing. And right now, we really couldn’t meet that burden of showing that the financial circumstances the client is in right now is expected to continue into the future, because it’s only been a month, maybe six weeks, of no income and what if those individuals are able to return to work in two months? Then the court would likely not modify the support. Now, if someone’s out of work after the executive order is issued, and we’re back at work, and they can’t find work, then that would be appropriate to modify. And the other thing is, the court is not gonna smack you if you’re not paying your support right now because of loss of income, or loss of employment. They’re gonna be sympathetic because they’re gonna recognize that there is not an ability to do so. So while your support may be accruing as an arrearage, it’s just some things that are gonna have to be addressed when you’re back at work. But again I wanna emphasize if you’re out of work for any lengthy period of time, yeah it’s probably appropriate to talk to a family law attorney about modifying your support obligation.

What would you suggest for developing an emergency parenting time plan? Is this something an attorney needs to do, or is something we can settle among ourselves?

Well, I mean, first of all, if parents can talk and co-parent, and they’re corgile, and they can communicate, then they should certainly do that themselves. We always recommend that, and the courts actually have an expectation if you’re co-parenting, that you’re going to do that. So in fact, quite a few of our clients have done that, they both have the best interest of the kids at heart, and they have said “ok, mom, you keep the kids during this period of time,” or “dad, you keep them”. So it’s certainly best if you can do that. If you can’t, or in other words there’s high conflict or folks aren’t behaving properly, then you might need to get one of us involved or even a mediator to help. And we’re doing a lot of mediation over zoom or skype, and electronically. In fact I have one scheduled here this week. So yeah, we are willing to help if parties are willing to get us involved.

So let’s say the two parties do agree, would you recommend putting that in writing somewhere, so that if there is a dispute later over it, they would have somewhere to refer that they were on the same page?

Yeah that’s a great question, in fact the opinion piece I am referring to that the court put out suggests that as well. If you want to modify your parenting plan temporarily, get it in writing, get both of you to sign it, you don’t need to file it, you don’t need to make it a court order at this time. But you need something to verify that there has been an agreement so that if someone breaches it, at least you’ll have some remedy. And also it kind of shows both parties that you’ve had a meeting of the minds, and this is what we’re gonna do.

Do you think at this time, an electronic document is acceptable,something mom sends to dad, and he writes back “I agree”? Do you think something like that is acceptable where we’re not really in contact getting signatures on things?

Yeah, even an email that has your email signature, not even a formal email signature. But yeah emails between the parties that show an offer and an acceptance, that these are our terms, “ do you agree mom? Yes, dad? Yes.“ Yeah that’s very helpful, you each can have access to those emails to prove sometime later if necessary.

We’re separated right now with no formal parenting plan at all, what can I do?

Wow, that’s a tough question, and assuming you can’t work it out? Let’s look in both scenarios, let’s say in one case you’re separated, you have no formal parenting plan, and you don’t agree on what to do with the children, but the recommendation you’d get from anyone is to try to work it out. We’re all trying to be on our best behavior at this time, these are tough times, we make compromises, we see the big picture. In fact, I’m seeing so much of that, it’s kind of refreshing, while we’re under this global stress, many people are behaving a lot better. So, in that scenario do the best you can, and understand it’s temporary. Now if you can’t, and you have no parenting plan, and one of the parents is refusing to let the other parent see the child, then the option would be file. File a petition for a paternity petition.

We’ve been hearing a lot about this virtual parenting time, and obviously this is a totally new concept, but a lot of parents who don’t have custody of their children right now, and they’re not able to social distance with them, they’re asking for virtual parenting time via Zoom and Skype and other means. What are your thoughts on that and do is that going to be the new norm?

Well, it sort of is the norm for many people during this period, I hope it’s not the new norm ongoing. Now it is the norm in long distance parenting plans, mom lives in New Hampshire, dad lives here. Zoom, Skype, the courts use electronic communication a lot, so yeah. The bottom line is if kids are separated from their parents, especially younger kids, they really need to talk to mom and dad. So make it work. If you’re not making it work, the court could hold it against you. In other words if the parent is saying “ hey, I want to talk to Sally, let’s set up Skype or Zoom,” and the other parent is not cooperating, or just ignoring, that could ultimately come up and bite the other parent in the behind, if there’s a court case. Facilitate contact with the other parent, you never want to be in the position where you can be portrayed as a parent who is not helping the other parent see the children. Unless there is a legit reason, that’s a whole different thing. But with virtual parenting time, there should be no real reason unless there’s bullying or bad conduct going on.

I’m hearing that Coronavirus will come back in the fall, maybe worse than it is now. How do we prepare as a family with a contingency plan for issues that I’m sure are going to arise again?

Yeah, the answer’s yes. That’s a great idea. I haven’t thought of it in terms of a legal strategy in parenting plans because this is the first pandemic I’ve been involved in, and probably for most of us this is the only one we’ve been involved in. But I can tell you, lawyers, we learn from experience, and I suspect there will be, in upcoming parenting plans, in templates we will probably have a provision that says in the event of something where there is a quarantine or something similar to what we have, we’ll work out the language, but we’ll make some provision. Now with respect to what the docs are telling us about Arizona and the possibility of a return, it makes sense that if you’re going to get something in writing that you address what happens if we have to go back into a quarantine situation. And again, attorneys are pretty good at negotiating the language of what that might look like if you need some help. But that’s a great question, I didn’t think about that, and it’s causing me to think about my future parenting plans.

My ex is keeping the kids until this pandemic is over, can I request make up time after COVID-19?

Yeah, yes you may request it. And I think that’s a good idea, and I think the other parent, I would hope, would be open to discussing that. Now the question is if the parent who’s keeping the kids refuses to give you makeup parenting time, we call it, would the court? Probably not, unless there was also another action going on that got you in front of the judge. But yeah I like the idea of makeup parenting time.

I wonder if things continue, will we see those sort of cases, or you just hope that a lot of these parents are able to resolve the issues themselves?

Well yeah, being optimistic and hopeful is good but the family law lawyers wouldn’t have much work if everyone behaved appropriately. We don’t see it often but let’s assume your scenario where you’ve got a health care worker and he/she has much higher exposure, and they are insisting they have their regular parenting time. Mind you, what the court has said is follow the regular parenting plan. But, could a parent theoretically say in this situation it’s not appropriate under these circumstances? Yeah, in fact I’ve referred to this advisory here multiple times and we’ll get it up on our website, but that’s exactly what it says. Follow the parenting plan, we will deal with the exceptions as they come.

What do you say to people who are going through a divorce right now, let’s say they were in the middle of their divorce proceedings and their case has obviously gotten pushed back, what do you advise them on right now? Is it mediation, is it trying to do some sort of alternative dispute resolution and settle their case sooner, or just be in a position where you’re ready for it when the courts open back up?

Well, if the spouses are anxious to move their case along, and they’re not able to because the courts aren’t open and they’re not setting hearings, then yeah, you can get into some kind of mediation, or alternative dispute resolution. One thing our viewers should know is that ADR (alternative dispute resolution) is ongoing, and many of us family law attorneys are judge pro tems doing ADR. I’m, in fact, one and I’ve got a couple coming up here in May.

Explain to our viewers what a judge pro tem is

Ok so, a judge pro tem that’s Latin for a judge who basically is temporarily fulfilling a role, or being a judge but not a called or officially appointed judge. So what do we do? The courts, because of the heavy load, they assign cases to us. One of the types of cases they assign to us is mediation. So we’ll go in, the parties will come to us, and we will have the authority to make their agreements binding, and we can order them to follow their agreements. A judge pro tem does not have the authority to make a person do something, but basically they can act as neutral mediators with the authority to take whatever the outcome of the mediation is, and make it a formal, final, official court order. So those are going on right now. ADR, tons of that is going on right now. So it’s a good option if your case is kind of stalled, and you want to move it along and get in front of one of these judge pro tems. Contact an attorney, ask them about ADR as an option, and he/she can get that rolling for you quickly.

Do you expect to see a jump in divorces after COVID-19?

Well I can tell you, there is a lot of conflict that is percolating up to the surface during the quarantine period. We’re seeing it in the criminal law section as you might know. I was speaking to one of my clients recently who is a police officer, and I was asking him if he’s seen any sort of trends. And he said yeah, domestic filing, domestic disturbance calls are on the rise. Now, have we seen an increase in filing for divorces here in Arizona yet? No. Will we? I don’t know, I hope not for these marriages but I suspect we will. And as you said, overseas we’re seeing that because China has moved on, they’re out of quarantine period, and they’ve had a large increase in domestic filing so we may see that. Here’s what I think. I think people living together 24/7, without any breaks, they often discover that their relationship may not be as strong as they thought it was. And they may come to the conclusion that their relationship is irretrievably broken. And those folks are going to want to talk to an attorney about what might be done, or they can talk to a therapist about what might be done in terms of saving their relationship, A lot of people think family law attorneys want to see families fall apart, and encourage divorces, but not at all. Not me at least, I hope these relationships can endure and the kids can have the same relationship they’ve been used to. But the reality is in many cases, it’s not appropriate. In fact, it may not even be healthy for some individuals. So that’s where you talk to an attorney, at least get a consultation, and explore your options.

Are there any other thoughts that you have on Coronavirus and family law that you want to discuss?

You know, one thought that I’ve had, in fact, I’ve been passing this along to clients. Don’t take advantage of this period to do a “gotcha” to the other side. I’ll give you an example, a client called and said, we’ve got a summer parenting plan which is fifty-fifty, and we’ve got a school plan which is where one parent has more than the other has. Well, what do you do now? We’re not out of school yet, my kids are still in school, they’re homeschooling. But one of the parents wants to use this situation to their advantage and to take advantage of the parenting plan. And so, don’t do that. Follow the parenting plan is the best advice I could give, unless doing so would cause the children imminent harm, or the threat of imminent harm. And in that case, don’t hesitate to talk to a lawyer. Most of us are open, we’re doing consultations, in person if necessary. But mostly like what we’re doing right now over Zoom or Skype. So be safe, be well. Take care of your kids and each other.


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