A Guide to Coronavirus and Family Law
This is not intended to be legal advice and is a summary of FAQ based on the most recent laws and executives orders available as of 4/2/20.
Q: What should I be thinking about in relation to protecting my child from Coronavirus? What items should me and my child’s other parent be discussing?
A: You should consult the following:
- The Center for Disease Control’s website and any latest recommendations
- Be diligent about keeping yourself, your child’s other parent, and your child away from anyone who has been diagnosed with Coronavirus
- Explain good hygiene to your child. This includes washing hands regularly and not touching their face. Make sure that they are keeping good habits no matter where they are (whether at your house of their other parent’s house)
- Consult with your child’s pediatrician or doctor as well, especially if they have underlying health conditions
- Proactively work with your child’s other parent to establish contingency plans should either one of your places of residence become a Coronavirus hotspot
Q: My husband and I are separated and have no formal parenting plan at all. How do I get one?
A: Custody agreements outline how much time each of you will receive with the children as well as how decision making regarding your children will be made. If you do decide to put one in place now make sure to be clear about any measures or obligations that are temporary due to Coronavirus. An attorney can help you create a comprehensive arrangement.
Q: Can the custodial parent deny visitation because he or she does not want the child traveling or transitioning homes?
A: The New York on Pause order on 3/22 mandated that 100% of non-essential businesses must begin to work from home but does not mandate that we all stay isolated to our homes. This means that you should try to stick to your child custody order or agreement and all exchanges and transitions of your children should continue to take place.
Q: What happens if the other parent is denying visitation at this time?
A: If you are being denied the opportunity to see your children by the custodial parent then you might consider filing a petition to modify and/or enforce the order.
Q: My child’s other parent works in a hospital. Can I temporarily pause visitation at this time?
A: Likely not. Unless the other parent is sick, or it can be proven that they have been exposed to Coronavirus (and therefore quarantined) you should continue to stick to your ordinary visitation schedule. You can always express your concerns and see if there is a different solution you can mutually agree to during this crisis. You may even come up with a temporary visitation plan that would remain in place throughout the Coronavirus pandemic. You might also want to consider coming up with contingency plans if the other parent gets sick or needs to quarantine. If that happens, you may want to offer additional make up time after they recover.
Q: As a non-custodial parent, can I refuse to return my children to the custodial parent because I am afraid of them traveling due to the Coronavirus?
A: No, you may not refuse to return your children to the custodial parent at this time.
Q: My ex-wife lives in a Coronavirus hotspot. Can I refuse to let my children go?
A: In order to change an existing custody arrangement, you must have her approval. You can’t decide by yourself to not let her see the kids if it was what you previously agreed to. If you have tried explaining your concerns to her and she is still wanting to see the children, then you can consider filing an Order to Show Cause to get an emergency hearing. The standard on these orders is high and requires a need to show that there would be immediate and irreparable harm to the children without emergency modification.
Q: We have agreed to keep our child in my home rather than traveling between houses at this time. How can I encourage contact between my child and my child’s other parent during the Coronavirus pandemic?
A: Some ideas are below
- Face Timing or Skyping daily
- Reading a bedtime story over video
- Playing online video games together
- Watching the same movie or TV show on Netflix
- Phone Calls
Q: During this time, I have agreed to let my children stay with their other parent to reduce travel between homes. Can I get back this lost parenting time in the future?
A: If you are missing out on a substantial amount of time with your children then you may consider requesting more time during another time of the year (like summer vacation) to make up for it. You can also request time during future holidays as well. If you do decide to modify your custody agreement or parenting plan you can write these changes into an emergency parenting plan so that they are accounted for in the future.
Q: Can the custodial parent temporarily relocate outside of New York without permission?
A: You would likely not be able to do this without your ex’s agreement or going to the Courts.
Q: My child’s other parent lives abroad in an area where Coronavirus is widespread. My child was scheduled to take a trip to see them in the next month. Am I under any obligation to send my child there?
A: You should first communicate with your child’s other parent to see if you can reach a quick agreement to temporarily change your plans and get it in writing. It’s unlikely your child would be able to enter that country or even leave the US due to suspension of certain flights to international countries. If they insist that you follow your custody plan this would be cause to go to court to file an emergency custody motion to stop the trip.
Q: Can I see my kids if they are quarantined in the custodial parent’s house during the Coronavirus pandemic?
A: A court would likely not allow the non-custodial parent access to the custodial parent’s home for this reason. If the child is quarantined due to exposure to Coronavirus or because they have Coronavirus it is likely that the custodial parent also either has it or is now exposed. During this time, it may help to take a look at the larger picture and focus on the health and wellbeing of all parties involved. In the meantime, if there is missed visitation time you can talk with your children’s other parent to see if you can either do more of it virtually or add on time later when everyone is healthier.
Q: My child’s custodial parent has been quarantined due to Coronavirus. Is there anything I can do to have my child live with me until they are healthy again?
A: If one parent is quarantined and they had the child with them at that time then the child was likely also exposed. In that case, the child should probably be quarantined as well. If the child was not with the parent that is quarantined, then it may make sense to have the child stay with the other parent even if that goes against an existing parenting agreement as long as both parents agree.
Q: If I find myself unemployed due to Coronavirus can I stop payments on child support?
A: No, you cannot stop your payments under a child support order and must continue paying.
Q: What if my pay has been decreased or I’m not being paid at all during this time due to a change in my job because of Coronavirus?
A: You can file to have your child support obligation modified during this time. In order to qualify for modification one of the following must be applicable:
- It is three years from the date of the last order
- A 15% change in either party’s income, or
- A substantial change in circumstances
Do not stop making payments until this order or agreement is in place. You may also suspend payments or reduce your payment if you have a consent order with the other parent.
Q: Is there a waiting period to file for a modification in child support due to a change of job circumstances?
A: No, there is no waiting period. It’s in your best interest to file as quickly as possible as soon as changes occur as the modification is retroactive to the date of filing.
Q: What rights do I have if the non-custodial parent has stopped child support payments under a valid court order?
A: You can and should file to enforce and / or secure any child support which is due.
Q: How do school shutdowns effect parenting agreements now?
A: If your current parenting agreement is working then keep it in place for now. If it is not, then you can try to be flexible. You can always make a change to your agreement with your attorney and prepare in advance for what the parenting agreement looks like during summer as well if the Coronavirus pandemic continues through that time.
Q: While schools are doing online schooling should we go to our summer or holiday schedule or should we work to put a new plan in place?
A: You should first review your parenting agreement and custody orders to see if there are any emergency contingency plans around school. Do you have a plan for hurricane days or snow days? With schools being closed for an extended period of time you may need to negotiate a temporary plan to get you through the summer months as well.
Q: My kids are home from school, and I need extra childcare during this time. What should I do?
A: Re-read your settlement agreement and order. Child care during working hours for a primary residential parent is a mandated statutory add on to child support but you may have opted out of that provision and/ or you may not be the primary residential parent (especially if you and the child’s other parent split time with the children 50/50). You can apply to the Court in the event of an unanticipated and substantial change of circumstance. You would want to file for modification of your support order to provide reimbursement for childcare costs or other unanticipated expenses. At this time, there may be a backlog of cases but when courts do begin hearing cases any decision made in your favor would be retroactive to the date of filing.
Q: What do I do if I am feeling unwell and my ex is unavailable to take care of the kids?
A: If you are able to plan ahead you can proactively establish a power of attorney (legal guardian). If you are not feeling well and your child’s other parent is unavailable, you can grant a limited power of attorney to someone else to take care of the children. You can also name a legal guardian specifically for the time period of the Coronavirus pandemic. You want to make sure that this person is willing and able to take care of your children in an emergency. If you do not have this in place and experience the same situation a relative can also go to the courts and be appointed a “kinship guardian.”
Q: Can I file a petition or motion if the other parent is not following the custody order? I do not want to wait 6-12 weeks to see my child because the other parent is deciding the Order does not apply at this time.
A: Even though courts are temporarily closed to pending matters and new filings they are still making exceptions for emergencies and essential matters. Courts will still hear and accept the following essential matters:
- Child-protective intake cases involving removal applications
- Newly filed juvenile delinquency intake cases involving remand applications
- Emergency family offense petitions and temporary orders of protection
- Orders to show cause
- Writ applications where there is a court order for custody or parenting time
Q: I have a temporary order of protection in place. Is that still valid? Can it be extended?
A: Yes, your temporary order of protection is still valid. If it was to expire soon it was likely extended due to the closure of courts. Check with your attorney to determine whether that is the case. Right now, all temporary orders of protection that were set to expire while courts are closed should have been extended to a new court appearance date. This new date will be set by the courts and they should notify both you and your attorney of the new date.
Q: Can I file a petition or motion if I believe my child is not being safely cared for by the other parent…whether due to alcohol or drug issues, mental health issues or abuse or neglect?
A: Yes, this would be considered an emergency matter that the Courts are hearing at this time.
DIVORCE AND SEPARATION
Q: Can I start a divorce now during the Coronavirus pandemic?
A: You can start the process of a divorce during the Coronavirus pandemic. While courts are now closed you can work with your attorney to draft documents and ensure that everything is ready to go as soon as the courts are open again. You can prepare things such as:
- A complaint
- Any sworn affidavits
- Gathering documentary evidence
Cases are usually heard in a first filed, first addressed manner meaning being ready to file as soon as they are open will enable your case to be attended to sooner. You should always check with your attorney and county to determine how divorces are currently being handled and whether filings are being allowed during Coronavirus.
Q: I filed for divorce right before the pandemic. What options do I have to keep the divorce on track?
A: You can consider mediation or a collaborative divorce instead of traditional litigation. Virtual proceedings are still taking place. Mediation and collaborative divorces are out of court methods for divorce. You can also meet with your attorney via video or phone call to determine the best ways to move your case forward during this time.
Q: Can I enter into a separation agreement or other marital agreement now?
A: Yes, you can. A separation agreement can be prepared by your attorney and is a contract between you and your spouse that spells out spousal support, child custody, visitation rights, and division of the marital property. It’s usually a very detailed contract. You can meet with your attorney virtually or via phone to discuss the details and have them prepare the agreement. While courts are currently closed the agreement cannot be filed but all work ahead of filing can be done now for filing when the courts open.
Q: Can I get an uncontested divorce at this time?
A: Since an uncontested divorce does not require court appearances or office visits, yes. You and your spouse must be in full agreement about all of the terms and your spouse must not be retaining legal counsel. You will still need to get your signatures notarized when you sign your divorce documents.
The Cimino Law Firm is operating at full capacity for you and your family throughout this coronavirus pandemic.
New York State courts remain open for essential business and many family law issues can involve essential matters.
To make our law firm more accessible, we are conducting free consultations over the phone or virtually through Zoom videoconferencing. There is no need to leave the safety and comfort of home to get your family law questions answered.
With over 20 years of experience, Michelle Cimino has established a reputation as one of the best family law attorneys in Rochester, NY for her integrity, compassion, commitment, and results.
Contact us today to get a head start on your family law matter and avoid any potential delays caused by this pandemic.
Stay safe and take care of each other.
Michelle Cimino, Esq.