The social and economic disruptions due to the novel coronavirus pandemic are bringing unprecedented challenges to the legal system, including the courts that consider child custody and child support issues among parents who are separated or divorced.
The social restrictions and economic shutdowns since mid-March — and now expected to continue into at least mid-May — mean a parent who is paying child support may have lost their job, and stay-at-home orders may interfere with joint child custody arrangements.
A parent could be concerned about a child being exposed to the virus if the other parent’s household includes a front-line health care worker, or having children staying at home because schools have all been adjourned could be imposing an unanticipated burden on one parent more than another. Some custody situations could involve grandparents, who are in the high-risk age group.
But just when parents caught in those situations need guidance from a Family Court judge, the pandemic has closed the family court system to all new cases except for emergency filings related to domestic violence, child abuse or juvenile delinquency.
Family courts are already among the busiest and most backlogged of courts, with cases typically being heard at the county level; large counties have two or more family court judges. The judges hear the parties and set rules for custody arrangements and financial support, with their decisions having the force of law, and legal motions and hearings required in order to modify those decisions.
“The problem people are facing is, if there is a new matter related to child support, say someone has lost a job and needs a downward modification child support, the court cannot hear that right now,” said Eric Tepper, a partner in Gordon, Tepper & DeCoursey in Glenville an immediate past chairman of the New York State Bar Association family law section.
“I think there’s going to be a huge backlog of new matters related to child support modification, child custody modifications and even divorce filings,” Tepper said. “There’s going to be even more activity that usual, not only because there’s backup in normal filings, but there will be a lot of new filings because of the current crisis.”
Barbara King, a partner who oversees the upstate family law practice for Tully Rinckey LLC in Albany, said the firm has seen a huge increase in inquires, from current clients, past clients, and the general public.
“We’ve seen the issues crop up in two different areas, first is custody arrangements, and second is in the area of support,” she said. “If don’t pay you’re in violation of court order, but right now the courts are closed. One of the big problems will be with child support, because any downward modification is only retroactive to when you file the petition, and right now you can’t file a petition.”
A parent who can’t make a payment required by a court order could face contempt charges down the road, but King said they want to avoid being held in “willful contempt” — when the paying parent has the resources, but simply decides not to pay. A parent found in “willful contempt” can end up in jail, she said.
Case backlogs as parental circumstances change and court orders need to be modified are a problem being seen not just in New York state but across the country, as state court systems have been closed in an effort to stop the spread of the deadly coronavirus. The state court system was initially shut down almost entirely, but last week state Chief Judge Janet DiFiore said courts will begin hearing already-filed civil cases, with judges relying on teleconferencing to confer with attorneys.
It is still unknown when lawyers might be able to start filing new cases with the court system, and judges begin hearing them.
“The hope is that (reopening) will be handled gradually over the next few weeks, but that is unknown,” Tepper said.
A spokesman for the state Office of Court Administration said plans are being developed to re-open the state court system, which is the busiest in the nation, with 3.5 million filings annually. Last week, the courts began moving forward again with some pending cases, using new technology for judge-lawyer conferences.
“Clearly it has been a huge undertaking and while our technology people have done nothing short of miraculous moving the court system to a virtual model almost overnight, that has been our priority.” spokesman Lucian Chalfin said.
“We are working on the next steps continuing to add to the nonessential matters that can be heard and further down the road the return to normal operations,” he continued in an email. “These changes will be rolled out incrementally in the coming days.”
For now, parents who have obviously had their serious differences in the past are left to try to work things out as best they can.
“I would recommend that parents try to behave civilly with one another, and that they co-parent as best they can with one another, and think first about what is in the child’s best interest,” said Tepper, who has been practicing family law for more than 35 years.
If one parent tries to take advantage of the situation, that is something the courts will carefully assess once the courts due re-open and a judge can hear about their actions, attorneys said.
“Mostly, we’re recommending that parents talk to each other, and try to work out or make arrangements,” said King, who has practiced family law for 30 years. “We have to give very clear guidelines that when this is over, judges are not going to look favorably on it if they try to take advantage during the crisis.”
A parent who can no longer afford to make their court-ordered child support payment should do their best to keep paying and at a minimum try to pay something, Tepper said. He urged parents not to take matters into their own hands, while at the same time acknowledging a parent may need to act if they fear for their child’s safety.
“Judges should definitely look very carefully at the parents’ respective behavior during this critical period of time when they can’t go to a judge, and that is going to be a critical issue,” Tepper said. “There could be pretty severe consequences for those parents down the line.”
With so many families seek to navigate uncharted waters, part of whatever happens next could include even more work for judges.
If the experience in China when its coronavirus domestic quarantines were lifted is any indication, the reaction to all the enforced togetherness in New York households will include a lot of new divorce filings — some brought on by weeks of couples rubbing each other the wrong way, and some that might have happened anyway, except that the courts are closed.
“You cannot at the present time even start a new divorce action in New York state,” Tepper said.
Reach staff writer Stephen Williams at 518-395-3086, [email protected] or @gazettesteve on Twitter.