Parenting in the Age of Coronavirus – Some Frequently Asked Questions

Posted in Divorce,Mediation, negotiation & dispute resolution on December 2, 2020

1. How has the coronavirus affected divorces?

The pandemic is effecting family-law and divorces in several important ways.

A. CHILD SUPPORT ARREARS:

Even in non-pandemic times, the most important advice I give to non-custodial parents who get laid off from work is to immediately file a petition in Family Court for a downward modification of their support obligations. That is because in New York, Courts are prohibited by statute from cancelling or waiving child support arrears that have already accrued. So it if takes several months to get a job, even if the parent gets a job paying the same salary, they are then unable to pay the current support and, in addition, all of the arrears that have accrued during the period of unemployment. It becomes impossible for them to dig themselves out of the hole, and the Courts are powerless to provide them relief. So even though the day after someone is laid off they are likely hurt, depressed, angry, and upset, and possibly hopeful that they will find another job quickly, it is so very important that they file a petition for downward modification to ensure that they don’t wind up in that untenable situation.

This has become even more difficult in the current pandemic, when the Courts are closed to everything but categories of matters deemed “essential.” We can’t, of course, be certain that the legislature will pass a law permitting the waiving of arrears accrued during the layoffs related to the pandemic. And we can’t accurately predict whether the Courts will made a judicial exception to the letter of the law, for layoffs during the pandemic. So it’s important to try to file a petition for downward modification, and to notify the other parent (registered mail, return receipt requested, so that there’s a record of it) side so that the laid-off parent can demonstrate to the Court that they did everything they could, as quickly as they could, to file a petition for downward modification and, hopefully, obtain relief on that basis.

 

B. VISITATION/PARENTING TIME:

Visitation or parenting time are effected in several possible ways:

(i) Actual Travel:

Many states have issued shelter-in-place orders. Some of them have specifically excluded visitation travel as a form of “Court-Ordered” travel making it, therefore, expressly permissible.

Though New York has not explicitly excluded visitation travel, the occasional transfer of children from one parent to the other to abide by Court Orders or parenting-agreements in a safe and protected manner should be permissible and even required. Of course suitable and reasonable arrangements that satisfy the parents’ reasonable safety concerns should be made (as discussed below).

(ii) Safety: That of the children and of the two respective families.

Transferring children from one family to another and back again, effectively commingles both families and exposes them all to the least-stringent quarantine standards of them both. So if one family maintains strict quarantines and the other allows even one member to attend large school, play, or social gatherings, it’s as if they’ve brought all of the biologies from the entire class or gatherings into both homes. That can be threatening, disturbing, and frustrating to the parent who sacrifices a lot to maintain a strictly-secluded, safe household.

Of course a parent who doesn’t practice safe social-distancing and hypocritically uses the pandemic as only a pretext to prevent the children from spending Court-Ordered parenting time with the non-custodial parent, is completely wrong and places their custody status at risk. Their failure to practice safe social-distancing is evidence that they uncaringly place their children’s health and well-being at risk. And their willingness to use the pandemic and the closure of the Courts to deny their children time with the other parent, is further proof of a willingness to harm their children to assert petty control over the other parent. Our Chief Administrative Judge has published on this subject, assuring parents that eventually the pandemic will pass, and litigants will once more appear in the Courts. Courts will likely not look kindly for those who have abused the pandemic, attempting to inappropriately profiteer off it, and use it to harm the other parent and the children.

Similarly, I have a problem with a parent, as in one reported case, trying to exclude the other from her child’s life because, she claimed, it would put her elderly mother, who frequently visited them, at risk. Why this mother believed that the child’s contact with her grandmother was more important to the child’s welfare than the child’s contact with her father is beyond me.

Assuming that a parent is not using the pandemic as a pretext, everybody, of course, tolerates different levels and degrees of risk, and people have different degrees of fear of germs.

These issue are difficult to navigate even for close, loving couples who live with their separate families. How much more difficult is it for couples who are now “exes,” and who might view one another distrustingly and with antipathy.

The best possible solution to these issues is for both parents to coordinate together and decide on a reasonable plan that satisfies them both and which they agree will keep the children safe. If they can both agree, for example, that nobody in either household will leave their homes except for bare necessaries until the medical authorities lift the shelter-in-place order, then transferring the children from one household to another increases the risk only slightly and is likely out-weighed by the need of the children to receive the love, affection, and guidance of both parents–particularly during troubling times. Parents can use this common threat and their common love for their children to find new ways of acknowledging the fears and needs of the other, and establishing a trusting mutual relationship to benefit their children. Being able to do so, can be a harbinger of future cooperation and a better relationship in the future.

If the parents do not [yet] trust one another, establishing trust during difficult times can be challenging. But in some way the challenging times can be conducive to reachinng such consensus and starting to build trust on small issues in small ways. Remember, you don’t have to reach a global settlement on all issues all at once.

 

A new opportunity:

So this time of crises can be an opportunity. Parents can use it to create a better working relationship with one another, to begin demonstrating good faith and good will towards the other, so as to nurture feelings of trust and good will. Or they can continue with their adversarial stances, convincing the other that they merely seek to use the children as pawns to hurt one another.

These issues are further exacerbated when one parent is a doctor, nurse, or EMT ambulance attendant. That parent is performing a vital, even critical, public service. The other, however, has a legitimate cause for concern for the risk to the child and the family the child might transmit it to upon return.

While I haven’t seen formal guidance on this issue yet, there are a few principles parents should bear in mind. Bob Mnukin of the Harvard Negotiation Project says that “All negotiations occur in the shadow of the law.” So here are some principles:

(1) Parents should always be guided by the principle of reasonableness. Admittedly, this is difficult when both parents have diametrically opposite reasonable positions which sometimes require that if one wins the other loses. However sometimes reasonable accommodations can be devised (like the parents and children take their temperatures and, if there is even the slightest fever, no visitation takes place). Parents should try to be creative in devising solutions that satisfy both parent’s reasonable and legitimate concerns and needs;

(2) The pandemic will, at some point end. The Courts will resume. Judges will not look kindly on those who sought to use the pandemic to profiteer or hurt the children and the other parent. Any sense of unreasonable behavior might hurt the parent and might even result in the transfer of custody to the more reasonable parent, who was driven by the best interests of the children.

C. ABUSIVE HOUSEHOLDS:

The most troubling aspect of the pandemic is the effect of shelter-in-place orders on victims of domestic or sexual abuse. Requiring the abuse victim to remain in a sealed home with the abuser is just too horrible to imagine. Moreover, the most dangerous time for abuse victims is the 24-48 hours after the abuser is served with legal papers. How much worse if the person can’t be removed from the home because of the shelter-in-place orders.

Nevertheless, the Courts and shelter agencies are open though, I imagine, understaffed and overworked. If you or someone you know is in such a position, you can still get help–a Court order, or alternate shelter. So, please, stay safe.

D. NEW DIVORCE FILINGS & ONGOING CASES:

New divorces are, understandably, not being commenced. The Courts in New York State have closed for all but essential matters, so unless it involves abuse or lack of support, it might not be appropriate to file a new action or proceeding right now.

Similarly, cases that are ongoing are now moving much slower. Deadlines have been suspended. Orders of protection are automatically administratively renewed and extended until the case will be hear again.

Many law offices are completely closed, some have its staff working from home with minimal access to files and support. The Courts have directed lawyers to be accommodating to one another, and recognize that more time will be needed to prepare or comply with discovery demands.

After the pandemic is over, I expect divorce filings to jump. The shelter-in-place order will make people realize that life is precious and finite and that tolerating flawed relationships might squander one’s life happiness. Additionally, spending so much time together will aggravate the fault lines of relationships hastening the demise of merely tolerable relationships.

E. LAWYERS’ SERVICES:

We and others are working from home, in accordance with our Governor’s shelter-in-place order. We are now permitted to notarize documents if we witness their execution via web-conferencing. We are “meeting” with clients using web-conferencing service which are surprisingly effective, though not as good as in-person meetings.

F. EFFECTIVE OPPORTUNITIES:

Life has slowed down for many. This may, therefore, be a perfect opportunity for clients to take advantage of the lawyer’s ability to focus more and spend more time on the client’s case. The client might also negotiate a better rate for the legal services for prompt payment or pre-payment for the lawyer’s services. So a savvy client might use this slow-time to prepare the case so that when the world comes out of it’s pandemic hibernation, the client’s case is ready to go.

 

2. Are people taking advantage of the shutdown of the courts to defy court orders?

See 1(B)(ii) above.

3. What can I do to protect my child and our custody arrangement during this pandemic?

See 1(B)(ii) above.

4. If the other parent is denying visitation because of the virus, what are my options?

Courts are closed except for essential matters. I have heard of cases in which denial of parenting time was accepted by courts across the country, considered, argument accepted via web-conferencing, and decided by the Court.

I imagine that, depending on the circumstances, Courts will not deem every visitation violation to be an essential matter. So it will likely depend on the egregiousness of the violation and its effect on whether it will be considered immediately or postponed until after the pandemic has passed.

The ability and willingness of a parent to foster the child’s relationship with the other is, however, one of the factors enumerated by the caselaw to be considered by judges in determining the best interests of the child. So people should always remember that Courts will be reviewing their behavior after the pandemic has passed.

5. What can my attorney do to help me resolve this custody dispute?

A wise attorney will help the client first to set up the matter to improve its likelihood for success initially, and to increase its chances for success in the courtroom, whether immediately or post-pandemic.

First, it’s often easier for a lawyer, than for a client who is emotionally embroiled with the frustrations and anger of the situation, to draft a dispassionate communication to the other parent so that it can be received by the other parent, and considered, instead of provoking a backlash. If it can be worked out without court intervention, that would be best (and cheapest) for the parties and their children.

I also often act as a “negotiation coach,” helping my clients frame issues and helping them to know how they should behave and speak, so that they increase their chances for success.

So often, parents who write or speak to the other aren’t cognizant that if their communication was listened to or read by an impartial judge, the judge would be aghast at how the parent sounds. So the lawyer can ensure that the parent is dispassionate and remains factual, never abusive, and lays out the request in measured tones, so that when it’s reviewed later by a judge, it’s the other parent who seems unreasonable.

So part of my job as a litigator is to, even before the litigation begins, help the clients set up the facts in such a way that they improve and multiply their chances for success.

 

 

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