CORONAVIRUS AND FAMILY LAW
By: Jonathan A. Rapel
Lots of lifestyle changes are occurring with the onset of Coronavirus, particularly in the arena of Family Law. Here is a quick overview of legal challenges facing some of our clients, as well as some legal strategies on how to better protect yourself and your family during this pandemic.
Many of our clients are addressing issues with court orders for custody and visitation, as parents with occupational hazards inadvertently threaten the safety and well being of custodial children. Individuals who work in the field of medicine, healthcare, first responders, as well as other “essential” fields often find themselves risking exposure to Coronavirus as a result of employment-based duties. These clients may wish you have custody and visitation orders modified to mitigate possible exposure of the virus to minor children.
Many States, Counties, and Cities have put into effect “shelter in place orders” or restrictions on travel for non-essential activities. The transfer of custody of children subject to court orders should not be impacted by these shelter-in-place orders, as the transportation needed to facilitate the transfer of children pursuant to a visitation order is considered necessary travel. Of course, some travelling might be impossible, such as long-distance exchanges that require plane flights. In instances such as these, the inability to transfer children should not be found by a Court to be non-compliance.
If an individual wishes to make modifications of existing visitation schedules, two viable options are available. First, if there is good cause to request a modification based on health concerns to the child, a request for order can be filed in the Court of Jurisdiction over the child. The Court will likely determine that good cause exists to temporarily modify the visitation schedule if a parent or family member who is in close contact with the child is at a high risk of exposure based on employment.
However, if the Court is not open due to the COVID-19 restrictions on government buildings, the second option is to contact the custodial person, whether directly or through counsel, to request a mutual agreement to temporarily adjust visitation schedules until the risk of spread has diminished. This may be the better option considering that many, if not all of California Courts, are either completely or partially closed to civil matters and getting your case heard before a judge may be impossible for the near future.
Another unexpected issue arising for many of our clients is a substantial change in income due to the economic impact of COVD-19. Unfortunately, lots of people are suffering financial hardships from Coronavirus in the form of loss of unemployment and/or a substantial decrease in income. The best thing to do if you find yourself in this situation is to file a request for modification of support. Even if you cannot get a Court Hearing because of the closures, the Court will consider a retroactive order to the date in which the request was filed. Additionally, this will help to avoid any finding by the Court of a willful failure to pay which can have severe penalties.
Some of our clients are currently undergoing divorce proceedings in which division of marital assets is an issue. The trouble some people are having is an inability to accurately value marital assets because of the volatile nature of the stock market. Also, it has become increasingly difficult to accurately determine valuations of businesses that are suffering dramatic losses of income during this tumultuous economic period. If you have a divorce proceeding in which the fair division of marital assets is an issue, our best advice is to consider an agreement to put off resolution until a later date. This will allow other issues of the divorce proceedings to be resolved without unnecessary delay.
Lastly, it may be an opportune time to modify a Last Will and Testament. In contentious custody cases, it may be necessary to inform the court of your wish to have the custody of a child transferred to a non-custodial parent in the unfortunate event that a person succumbs to the virus. In this scenario, it may be helpful to have a writing to show the Court why a certain individual may be best suited for custody of the child. When a person cannot give oral testimony in Court, the Court may be persuaded by a written declaration in a Will in its place. This is not binding on the Court but can be used as evidence to aid in a determination of future custody.
Jonathan A. Rapel is an Associate Attorney at Castillo Harper APC where he represents clients in all aspects of Criminal, Administrative, and Family Law matters. Jonathan’s hands on approach to handling his cases and client communication allows him to provide the best results possible for his clients.