Community spread of COVID-19 is occurring in Colorado and is uniquely impacting parents who share child custody and those who are divorcing with assets in flux. For the most current and accurate information about the virus and its spread, refer to CDC.gov. Colorado family law attorneys will be presented with concerns about their client’s assets and will face many questions from parents who share child custody during this uncertain time, and this blog explores some of the issues family law attorneys in Colorado may face. With respect to children, good co-parenting will help alleviate many of the issues parents may face. However, when effective co-parenting is unavailable and conflict is driving matters, family law attorneys need to be prepared to counsel their clients with both legal and practical guidance regarding the custody of the children during the coronavirus outbreak.
Coronavirus’ Impact on Child Custody and Parenting Time
Advising clients to review their current Parenting Plan should be the starting point. While some highly detailed parenting plans may have relevant provisions, like how parenting time is to occur in the event of illness, most parenting plans lack the level of detail needed to effectively navigate a pandemic. Updating current parenting plans should be considered at this time, and this should be prioritized for those parents who are often in conflict.
Reminding parents of the importance of co-parenting is always a best practice and during these times co-parenting is going to be more important than ever to avoid conflict and to protect everyone’s health. Consider going further than just reminding your clients, provide them with educational resources and materials, such as county and state websites and parenting refreshers. Contacting and enlisting opposing counsel may be warranted as well.
With school closures, as well as limitations on community recreation and educational opportunities, parents and children will experience these times with great challenge. Ensuring mental healthcare is available to your clients and their children should be encouraged. While many attorneys have a network of therapists to whom they can refer clients, go beyond any standard referral list and also provide your clients with community based, non-profit mental health providers, as these could be a less expensive option during what could become difficult economic times.
In addition to involving mental health professionals where warranted, it is important to turn to other professionals as well. Parents should consult their children’s pediatrician or physician with any health related concerns, sharing their concerns and information received from professionals in coordination with the other parent, as any good co-parent would do.
Child exchanges bring additional opportunity for virus exchanges. Most parents exchange their children with the other parent at least once a week, but more frequent exchanges are not uncommon. Blended families, in particular, may have children exchanging from multiple homes, with schedules that do not always align , leading to an increased frequency of exchange. Families with high frequency of child exchanges, who also care for the elderly or health-compromised in their homes should be particularly vigilant, as the elderly and infirm are more susceptible to Coronavirus and children can be carriers. Furthermore, exchanges often occur at school when in session. But with many schools recently closing, additional direct contact between parents is likely, creating further challenges to those experiencing frequent exchanges. Reducing the frequency of parenting time exchanges should be considered. Parenting plans may need to be updated to address how exchanges are to occur in general and when someone is ill.
Declining or Denying Parenting Time
Accountable parents do not want to expose their children to illness, and most parents try to avoid contracting any illness from their children. If a parent is ill, they should consider declining parenting time until their doctor advises otherwise, so as to avoid exposing the child. If a child becomes ill, then the parent with the child while diagnosed should consider keeping the child, to avoid spreading the illness. The other parent should be urged to work cooperatively to limit the spread of the virus in the community.
With vacation parenting time, your clients may have concerns regarding the other parent’s plans to travel. The court may or may not prohibit travel, as any such decision would be influenced by the unique facts and circumstances of the mode of transportation and destination.
When co-parents can not agree, the legal options available include an emergency motion to restrict parenting time, contempt and / or a motion concerning parenting time disputes when parenting time orders are not being followed. With an emergency motion to restrict parenting time the parent must prove to the Court that contact with the child would place the child in imminent physical or emotional danger. Pursuant to Statute, following the filing of the motion, the restricted parent’s parenting time must be supervised and a hearing will be scheduled within 14 days. Would a judge or magistrate find imminent endangerment if one parent may expose the child to COVID 19? The answer to that question is going to be fact specific to each case.
Emergency motions to restrict parenting time and motions concerning parenting time disputes are used in one direction 99% of the time, but they can run in the opposite direction just the same. If a parent wants to decline parenting time, say because the child could be ill, the other parent could try to force the declining parent to take the child with a motion concerning parenting time disputes. If the child was healthy and the declining parent is ill, the ill parent could file an emergency motion to restrict their own parenting time if they believe they pose an imminent threat to the child.
Quarantines ordered or likely to be ordered pursuant to statute at the County, State and Federal levels should also be considered. Seeking to enforce orders for parenting time that are impacted by any quarantine may be unsuccessful, as the quarantine takes precedence over any parenting plan. However, so long as the parents can communicate, they should continue to co-parent as best they can, including by making major joint decisions together. Telephone and live video contact between the children and the other parent should also continue if possible.
Assets and Income in Flux – property division, child support and maintenance
When dividing property in a divorce, one critical step in the process is valuing the assets. An accurate valuation of an asset is most important to it being divided equitably. This is most often a central issue when one party retains the marital home or one party retains more retirement. It may be important to consider the recent economic developments in drawing up a proposed property division. For instance, the stock market was a roller-coaster following community spread of COVID 19 in the United States, in March, 2020, and some portfolios were down as much as 20% within a week. Attorneys representing clients during this time would be wise to ensure their clients’ property division is accurately valued.
Incomes may also be impacted when the economy is in significant flux, and changes in income may impact maintenance awards and child support orders. Child support can be modified any time there is a substantial and continuing change in circumstances that would result in the amount being paid changing by 10%. The initial challenge to someone whose pay is reduced or who are laid off will be meeting the ‘continuing’ change in circumstances, as brief periods of unemployment may not support a modification.
Court Appearances, Client Meetings and More Via Phone
If in-person attendance is not necessary for a court appearance, telephone appearances should not only be allowed, but encouraged and ordered by the Court, as authorized by C.R.C.P. 43(i). Many family law courts in Colorado have already taken steps to facilitate telephone court appearances. Mandatory in-person attendance to Court in the time of a pandemic will only increase the spread of the disease. Requiring parties and their attorney to attend via phone will serve the dual purpose of protecting those involved in the case, but also Court staff and personnel.
Like many court proceedings, family law mediation, settlement conferences and the like could also be conducted via phone or video conference. Interviews with professionals such as custody and vocational evaluators, as well as most interactions with parenting coordinators and decision-makers are further examples of family law proceedings that can and should be conducted via alternative means of communication. However, some family law matters, such as early neutral assessment, need to occur in person and will be postponed during for the time being. Following the health experts’ advice for social distancing, it is incumbent on the attorneys to schedule such matters accordingly. Care should be taken to comply with new time deadlines.
The occasion of a pandemic, like the one we are currently experiencing in Colorado, raises some significant impacts in the area of family law. These impacts including parenting time during illness, asset allocation, and court proceedings. There are things that family law attorneys can do to offer their clients a continued sense of stability in these uncertain times. By providing clear information and advice, and advocating for meaningful procedural adjustments, an attorney can offer their clients much needed guidance during the Coronavirus outbreak.