Family Law Triage When Courts Are Closed. Play safe. Be Smart.

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If you are watching the news you have some impression of what New Orleans must have been like in the hours before Hurricane Katrina hit.  The Coronavirus storm is hitting New York City and the lower counties with a fury.  The numbers are rising fast throughout our region as well, although New York is clearly getting the thrust of the storm.  Last evening Pennsylvania’s governor announced that its Southeastern residents are to “shelter in place,” meaning travel should be for essential purposes only.  The Courts essentially closed for all but emergencies last Thursday afternoon and the economic and personal impact are starting to really settle in.  The State Bar Association operates an online service where many lawyers are asking some very good questions to each other based on some very good questions coming from clients.  This is a brief distillation of what’s on that “wire.”

If we are to shelter in place, does my kid stay with me in spite of the custody order?

The consensus is “No, the custody order is an essential duty” and the schedule is to be maintained.  At least one county (Chester) has officially said that.  I hasten to add my common sense question.  Does this back and forth not risk a lot?  It now seems clear that asymptomatic people (no symptoms) are a pretty effective way of spreading this virus, and children are designed to put their hands everywhere and on everything with no awareness of the risk they create.  So, you are shipping back and forth what may appear to be a very healthy child who is carrying something that could prove deadly for you and others in your household.  In the region where I practice the bulk of proven cases are afflicting people ages 25-60.  They have good chances of recovery, but they are more and more living with people who are older and have considerable risk.  Of course you want to see your kid.  But is that in your kid’s health interest, or yours?  We are now well past the days when this virus was coming from Europe or Asia.  We are now giving it to each other and children living in two households may be a primary vector.  If the two parents can agree that fewer exchanges is healthier, just make certain that is confirmed in some written (electronic) form.

If you have a custody emergency call the Prothonotary in the county where the case is pending and ask about electronic filing.  Some courts are permitting petitions to be faxed or emailed but you are still currently going to have to follow up with a physical copy, pay the fees and arrange for service; done in a building that will be largely closed.  Barring risks of abduction (not simply “retention”) or imminent danger to the child, don’t expect to be welcomed.  We have had people asserting that children are at risk because one of their parents is working in a healthcare facility.  No doubt, that does elevate risk although the precautions taken in those facilities are substantial.  Now take a step back.  Are all healthcare workers to be quarantined from their children so that none are exposed?  Aren’t those members of our society already enduring enough for the rest of us?  We have to trust that if they love their kids, they are doing everything in their power to protect themselves if only to mitigate the risk to their kids.

I have been laid off or told to stay home.  What about my support when I’m not getting paid?

The various Pennsylvania Courts (about 70 of them not including the local magistrate courts) began issuing a myriad of orders beginning in early March.  Unlike county governments, just about all of which have Public health departments, courts don’t have anyone to give them advice about public health issues.  Courts are also supposed to be open every business day and courts also are often called upon to act in the night and on weekends.  So they are reticent to close.  Each county court tried to fashion orders shutting down some activities while leaving other matters pending; including criminal arraignments and bail hearings, protection from abuse matters, mental health emergencies and other matters of “life and liberty,” (in contrast to property).  On March 18, the Supreme Court received a letter from the State Department of Health imploring them to limit judicial activity as much as possible.  The Court acted that same day effectively closing the courts except for emergencies.  In a nutshell, aside from the usual emergencies, a family law emergency is one where a judge MUST act.  That is probably not going to include whether your payments or your child is late.

Under present law, if you lost your job or your check, you are supposed to file a petition for modification.  The laws says your order cannot be reduced for a period for which no petition is on file.  Problem today is that the office that takes those petitions is not open.  The Bar is working on a solution and we have made some administrative agencies aware of this as well. Anyone in the “system” for support knows about the PA Child Support Program.  However, at the time of this writing there is no means to file a modification petition in each county.  Some counties have sophisticated electronic filing systems and it may be possible to file from your computer.  Try your county website and its Domestic Relations Section.  Otherwise, you may want to get your pen and/or computer and prepare something to say what happened to your job and that you need a modification.  This is not a truly satisfactory answer, but realize that these are extraordinary times and all systems are being taxed while working with very small parts of their usual office support.  The Supreme Court may create a retroactive solution because obviously you cannot pay support based on money that does not actually flow in.  Nevertheless, you can still be charged for support unless and until you file to modify.  Don’t forget if you are in this pinch, courtesy and the Rules of Civil Procedure call upon you to notify the other parties affected.  We are also told that some of the more draconian enforcement procedures like bank account seizure are not being implemented at this time.  Our recommendation if you cannot file electronically in your county is to send in the modification request in the form of a petition and to send it by a means of verifiable delivery.  Some county offices are open and timestamping mail received. Others are not.  Have the comfort of proving you sent it to Domestic Relations in the county where the case is pending.

If things are starting to turn violent?

Call the police.  This is an immensely stressful time and people cooped up in the same house often do not behave their best.  Protect yourself.  Understand that leaving the house is not “abandonment,” although you should probably chat with an attorney if you intend to stay away more than a couple days.  The police and the courts are open to deal with physical abuse but realize that law enforcement is being called on to step up and do more.  That may mean you are waiting longer to see the police arrive.  Do not hesitate to step out to a car or a neighbor’s home while waiting for help to arrive.

Uncharted territory calls for uncommon civility.

This echoes some of the sentiments in my partner Aaron Weems’ blog of the other day.  Most of us lived through the 10-days that followed September 11, 2001, when the Country was attacked.  Courts closed as did many other services while we gauged just how immediate and serious the crisis was.  That one passed fairly quickly.  This one is far more insidious because the attacker may well be in our own bodies or those of the people we live with and love the most.  Tonight your child can love you as much on Skype as in person.  He or she has enough angst without a crisis fueled by mom or dad’s anxiety.  Realize that millions of Americans are plagued with the same anxieties, all of which are very real.  Your creditors are also in a jam.  They don’t have 100,000 extra people out there to repossess your car or evict you from your house, and even if they did get possession of all those cars and all those houses or apartments, there are not millions of people waiting around for your house or your vehicle.  We all need to be reasonable with each other.  As I wrote the other day, our ancestors lived with all sorts of plagues.  This is not a plague, but it is deadly serious and calls for all of us to step forward and do the right thing for our own sake and for the sake of those whom we love.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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