How Are Divorce and Family Law Cases Being Affected by the Covid-19 Crisis?
This is such a broad question that it’s difficult to answer. Let’s start with child custody and visitation. The Court, in San Diego County, is not scheduled to accept filings for motions or new cases until either Friday, May 1 or Monday, May 4 – or shortly before that time. Hearings based on paperwork filed on, say, May 4, would normally be heard in three months’ time to allow the parties to attend state mandated child custody and visitation counseling before actually seeing the judge. But with everyone who had hearings scheduled between March 17 and April 13 needing to have those hearings rescheduled, along with the people who now are deciding they need a judge to help them resolve a custody or visitation dispute, if you file your paperwork on May 1, the wait time to see a judge may be much longer.
Of course, if you’re familiar with Family law, you know that there’s a shortcut to see a judge, normally called an “ex parte” hearing. Provided you comply with all the procedural rules, you could have your paperwork considered by a judge this week. But you woudn’t be able to see the judge; rather, your request would be considered in chambers by the judge (the one who is covering for all of the other family law judges) and then someone would meet you in the courthouse at some predetermined location like the lobby and give you the paperwork, letting you know whether the judge had granted or denied your request.
Normally, a judge is not allowed to make an ex-parte ruling involving custody and visitation unless there is an imminent threat of irreparable harm to the child (or children) or if there’s a risk that the child (or children) will be removed from the State of California. This is based on Family Code section 3064.
The question we’ve been hearing is what about Covid-19? Is that a section 3064 emergency? If there’s an existing court order, but the other parent is not following the stay-at-home rules issued by the Governor on March 19, 2020 and is thus increasing the likelihood that the child (or children) will be affected, is that good enough to get an emergency order cutting off the noncompliant parents’ time with the child (or children)? How can a child technically comply with stay at home rules if he or she is commuting, basically, between two homes? Or, is the home of each parent, the home of the child so that the child is always staying at least one of her or his two homes. What if the other parent is positive for the virus or won’t tell you if he or she is? What if the other parent is an essential service provider, like a nurse, and may have a much higher chance of being positive. What if the other parent is diabetic and therefore is more likely to have health problems if infected?
The other related question deals with exchanges of the children. The stay at home order, some parents have argued, whether accurately or not, says that you can go to the post office, the bank, the gas station, the grocery store, the hospital, the pharmacy, the hardware store, the dog groomer and places like that, but does it say anything about going to an exchange location or the other parent’s home? And if the child is extremely young and has to be carried to the other parent, how do you practice social distancing which you’re supposed to do if you’re dealing with someone who is not a member of your household? What if the estranged spouse or parent admits to an ongoing sexual relationship with someone? After all, sex does not involve social distancing.
Some have also argued that if the visitation schedule was supposed to change at the end of school, and since schools are physically closed, summer has begun. No.
Courts have tried to address this problem by issuing statements about what they expect from litigants during Covid-19. For example, some of these issues were answered by the family law supervising judge in Orange County and at least one family law supervising judge up north. San Diego County later chimed in as well.
These edicts are not really binding but an indication of what might happen if you try to use court resources before May 1 to address your Covid-19 grievance. This is because one judge generally cannot tell another judge how to handle any specific case, because every case “has to be resolved based on the facts of that case” and judges cannot be fired. Arguments over when summer begins are not going to be well received, in most cases; summer begins when school would have ended in a normal situation. But some of these other matters, especially where the other parent is going rogue, are problematic. Courts can argue they don’t need to intervene because an order governing the conduct of the recalcitrant parent is already in place, having made by the Governor pursuant to his emergency authority. But if there is uncontradicted evidence that the emergency orders are not being obeyed, and some risk of harm can be shown, a request for a temporary zero contact order against the noncomplying parent has to at least be considered.
Moving on, child and spousal support orders already in place are dramatically affected by Covid-19. Those orders can change in favor of the payor, so he or she does not have to pay as much support based on a showing of changed circumstances. The hearings on these matters might not be for months, by which time the economy may improve, but the date of effectiveness of any order lowering support can, at best, be made retroactive only to the date the paperwork is filed with the Court. But in San Diego County, there is no ability, at the present time, to file papers by e-mail, fax, or by leaving them in a drop-box with some sort of stamping device that allows one to retain proof of the date the papers were deposited, so at least when everyone returns to work, clerks can back-stamp the papers so that they are deemed filed the date that they were received. By contrast, in Los Angeles County – the only California county with an even larger infrastructure than San Diego County—drop box filing remains possible at all 36 or 38 courthouses in what is the largest court system in the country if not the world.
Some have suggested serving a request for a motion reducing support, even if the request cannot be filed, so as to at least impart notice to the other side. But that would only work if the party requesting the change knew when the hearing was going to be, which would be impossible, since nobody can get a date at this time in San Diego County because nobody can file anything. Mailing, emailing, or even personally handing (with gloves on, I guess) paperwork to the other side without any indication of when the hearing is going to be is really not notice at all.
The San Diego Court has declined to open its mail, so trying to “mail it in” with a return envelope with stamps on it does not work either.
Some have asked the Governor to address this problem by making an emergency order that temporarily does away with the requirement that retroactivity not extend before the date of filing. The Governor, who is not a lawyer, has already approved, in his collaboration with the Chief Justice of California, rules that make it easier to serve papers by email and to even conduct depositions in a virtual fashion, which used to be virtually impossible to do. Maybe he can continue rewriting the Family Code by dealing with the retroactivity issue. But if he does that, there are those on the receiving end of support who could argue that a bill or order that does away with the rule of retroactively is the impairment of a vested property right. That’s too complicated to further address here.
It has also been suggested that those who are unable to file motions for support modification could be charged with contempt for failure to comply with the existing court order. This does not seem like a realistic concern, because contempt cases are disfavored anyway because they only antagonize litigants who are already angry with each other in their family law case and because if a person is incarcerated for disobeying a valid court order, he or she will not be able to work at all, and that would hurt both sides. Plus, even though a contempt citee has a right to remain silent, he or she can give up that right and prove inability to comply because of unemployment and only a judge from Mars would have a hard time believing at least part of that argument. On the other hand, even if one is acquitted of contempt, he or she still owes the arrears that accumulated before any motion to modify is filed as well as ten percent interest on those arrears.
Why won’t San Diego County accept papers for filing now? We are told that criminal matters take priority, and nobody disputes that because criminal matters are governed by rules over 200 years old enshrined in our Constitution. But the priority of criminal law has always been the case. The real problem, at least at the Central Courthouse in San Diego, is that only two clerks are working in a building of over 20 floors. This is based on an email from April 3 at 3:03 p.m. We don’t know if having two clerks due to union issues or a perceived exclusion of clerks from the “essential services” exception to the Governor’s orders or for some other reason. Certainly, reduced staff is necessary and full-time staffing is not necessarily needed at this time. But having reduced staffing that exceeds two persons would not prevent the practice of social distancing in the courthouse, especially if members of the public were excluded, as they are now, from the building. And those staffers with day-care issues or other problems that make covid-19 particularly dangerous to them if they were to be infected should be the first to be allowed to stay at home.