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THE IMPACT COVID-19 HAS HAD ON CALIFORNIA FAMILY LAW MATTERS

June 10, 2020

The COVID-19 pandemic has had a major impact on all aspects of life including California family law matters.  We are all in unchartered waters here and with the family courts having been closed for the past few months—except for emergency hearings—many have been left wondering how best to handle these new and unique challenges.

Divorce Proceedings

Each county is handling the closure and re-opening of their courthouses differently but in general most family law cases with pending motions or trials to have received notice that their pending family law matter has been continued to a later date—typically somewhere between 3-6 months out from their original date. While the delay may not be ideal, generally speaking, it shouldn’t negatively affect your case or claims otherwise.

One common concern from clients is that they are going to end up partially responsible for the debt their spouse is incurring in light of their recent unemployment or reduced earnings, and/or that their spouse is going to deplete their community estate, or take on additional community debt, before the Court gets the opportunity to divide the parties’ assets and debts.

The good news is that the “community” ceases to exist as of the date of separation (for a detailed discussion on determining a date of separation see past blogs) which typically is no later than the date that the respondent was served the summons and petition for dissolution. Meaning, from the date of separation on, all income earned is the separate property of the earning spouse and all new debt acquired is considered the sole responsibility of the acquiring spouse. Of course, there are a few rare exceptions to this general rule but the presumption is post-separation earnings and debts are treated as separate property assets and debts.

Ideally, post-separation the parties would obtain separate accounts to deposit their post-separation earnings and the community estate would remain untouched until division of assets by the court or by agreement takes place. This scenario is consistent with the Automatic Temporary Restraining Orders (“ATROs”) found on the back of the Summons which both parties are subject to once the Petition for Dissolution is filed and served on the other party.

For a more in-depth discussion on ATROs, which can be found on the back of the Summons filed and served along with the Petition, please see some of our other blogs or call to speak to one of our lawyers at (310) 478-4600.

 

Child Custody Matters

COVID-19 and the resulting closure of schools and statewide ‘shelter in place’ and ‘social distancing’ policies enacted to curb the spread of the virus have had a significant impact on child custody matters. The primary issue is that these temporary policies are often inconsistent with the well-established family law policy that it is in the best interest of a child to have continuous contact with both parents. Accordingly, parents, understandably so, are left wondering what the appropriate course of action is when compliance with the COVID-19 orders would result in a violation of current custody orders.

A common example of this dilemma is where one parent has potentially been exposed to the virus or perhaps has since recovered from the virus, and the other parent does not feel comfortable continuing with the scheduled exchange of custody. Another example could be that the child has tested positive for the virus and the noncustodial parent is still insisting on their scheduled custodial time. At the center of both examples is the issue as to whether the custody orders in place ultimately trump the societal COVID-19 related health concerns and the resulting state orders. Since these societal circumstances are entirely unprecedented, unfortunately, there is no clear answer.  

Due to the lack of precedent, it is unclear how family law judges will deal with these issues once family law cases resume. There is a chance that judges will decide to give a temporary “pass” for custody order violations that resulted from one parent’s honest attempt to comply with COVID-19 related state policies. However, it is more likely that family law judges will review such violations on a case-by-case basis exercising their substantial discretionary powers afforded to them under the California Family Code. This is why, as most co-parents have experienced, a family law judge’s impression of each parent is so important in a custody battle.

Accordingly, it is advised that parents use their own best judgment and avoid the temptation of exploiting these unique societal circumstances. Meaning, it is not advisable to violate current custody orders (i.e., refusing to exchange custody of the child[ren]) without good cause. You will, in all likelihood, have to justify your violation of the custody orders eventually and the Court will likely demand evidentiary proof that the violation resulted from an honest and reasonable belief that the child, or the other parent’s household, would otherwise have been at risk of contracting the virus. Without such proof, you are at risk of a multitude of negative consequences ranging anywhere from a judge’s tainted impression of you all the way to potential quasi-criminal contempt charges.

In an effort to help parties better navigate these unchartered waters, the following is a list of simple guidelines to keep in mind:

  • Maintaining an open line of communication is key;
  • Prior to custodial exchanges the parents should update the other parent on any recent risk of exposure to the virus;
  • If the child or one of the parents test positive for COVID-19 he or she should follow the recommended quarantine procedures and do their best to stop the spread of the virus;
  • If this means that one parent will not be able to enjoy their regularly scheduled custodial time with the child[ren] the other parent should take extra care to facilitate alternative means of contact with the other parent via video conference/chat, phone calls, E-mails, etc.; and
  • If you decide it is in the best interest of the child[ren], or of the household of the other parent, not to partake in the scheduled custodial exchange due to COVID-19 related health concerns make sure you are able to provide evidentiary support for your concerns such as the child’s positive test results, a text from the other parent stating they have recently experienced a few symptoms commonly associated to COVID-19, etc.

Due to family courts having been primarily closed for the past few months, and the financial hardships that so many of us are facing due to the pandemic, it may be tempting to violate the ATROs or custody orders currently in place, but it is important to remember that there will be consequences for those violations sooner or later. All court orders and restraining orders remain in full force and effect and Courts will likely have the discretion to handle COVID-19 related violations as they please.

If you feel your spouse or co-parent is attempting to exploit these unprecedented circumstances for their sole benefit by violating current restraining orders or custody orders, or you yourself fear at risk of violating court orders, please do not hesitate to call the Law Offices of Robert Nachshin at (310)478-4600. We would be more than happy to offer some guidance as to the abovementioned matters based upon the specific circumstances of your case.

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