Leah Tarantino Cintineo
Apr 9, 20206 min
We are currently facing challenges that we have never faced before due to the Coronavirus and COVID-19 pandemic. Our society is under a tremendous amount of stress. For clients going through a divorce or family law case when the pandemic hit, the stress may seem unbearable. How do parents and litigants navigate through this “new normal” during the pandemic? How are court appearances being handled? What should parents in separate households do to keep consistency for their children? Here are some points to keep in mind answering our most commonly asked questions from this past month.
Until April 7, 2020, the New York State Court System was open but only hearing essential matters specifically defined by the Courts. Notably, matrimonial cases, custody and child support matters in Supreme and Family Courts were not defined as “essential.” All essential cases are being heard remotely when possible. Appearances and proceedings that were previously scheduled in March or April 2020 have been moved to May or June 2020 and beyond.
The Chief Administrative Judge issued a Memorandum on April 7, 2020, stating that the Courts will begin allowing remote access to the courts for pending non-essential matters starting April 13, 2020. As of that date, Judges can begin to schedule settlement conferences in pending cases on their own or on request of the attorneys. The conferences would be held remotely by Skype or telephone. While the plan has not been fully rolled out, it appears that Judges on pending cases will be going through their case loads and reaching out to schedule conferences as needed to move cases forward. It is unclear whether cases already re-scheduled for conferences in May and June 2020 will be moved up unless the attorneys specifically make a request to do so.
If there is an emergency regarding a divorce matter in Supreme Court or a custody/child support matter in Family Court, an Order to Show Cause emergency motion can be filed by a party or his or her attorney, and a Judge would be available to review the emergency motion and grant relief in his or her discretion.
Any temporary or permanent Orders or Judgments previously issued by the Court remain in full force and effect. Child custody orders continue to be valid and enforceable and parties must follow them. If children are court-ordered to be exchanged for residency with parents on a specific schedule, the schedule remains “as is” despite social distancing and voluntary quarantines.
Judges have made it clear that Court Orders are to be followed with the general exceptions being (1) if one or both of the parents are diagnosed with Coronavirus or COVID-19, (2) a child is diagnosed with Coronavirus or COVID-19, or (3) a member of a parent’s household is diagnosed with Coronavirus or COVID-19. If one of those events occur, the parents need to contact the child’s pediatrician and follow any recommendations of the pediatrician or other relevant medical professional regarding quarantine and medical safety for the child or children in question.
If a pediatrician’s medical advice does not allow a child to follow the schedule in a court order for medical reasons in circumstances where a parent, child, or household member have been diagnosed with Coronavirus or COVID-19, then the parents have to be on the same page and follow the recommendations. Compromises need to happen. If a child cannot visit the other parent for a period of time, then they should have liberal telephone and electronic communication with the other parent. The parent missing out on visitation would receive make-up time for the residency time missed when the child and parents are medically cleared to do so. The more reasonable the parents can be, the better result for the children and the less likely they will need a Court to intervene on the issue.
Now, more than ever before, parties need to work together to co-parent their children as much as possible. In most cases, court orders will allow for changes to a residency schedule as long as both parties discuss and mutually agree on the changes. Parents may use common sense and can fashion their own temporary schedule, whether or not someone has been diagnosed with the virus. The health of the children in question is paramount. For example, the court order may have a child exchanged every two days from one home to the other. The parents may decide to space the exchanges further apart, so the child is not having as many transitions and opportunities for exposure. If the parents can discuss a new schedule and mutually agree to it, most court orders offer them the freedom to do so. Parents should try to cooperate as much as possible while continuing to follow the state mandates for social distancing. Keep in mind- if the parents cannot agree to changes to a child’s schedule in a court order, then the court ordered schedule remains as written unless one of the exceptions above applies.
If all else fails, parties can file an emergency Order to Show Cause application at court. It is highly recommended that the parties make a diligent effort to reach resolution outside of court prior to resorting to such an extreme remedy, either between themselves or through their attorneys. If there is an emergency, the courts will be there to assist. All courts around the state have begun virtual appearances in essential cases, so parties and counsel could appear electronically rather than in person for emergency applications.
Parents in separate households can provide comfort and security for their children during this stressful time by trying to be as consistent as possible between households. Parents need to communicate about their household schedules and try to keep the same routine at both homes. This includes the time of day and the curriculum for homeschooling children, the general amount of screen time allowed at each home, and keeping mealtimes, nap times, and bedtimes consistent. Parents should discuss how they want to communicate with their children about the pandemic to avoid anxiety. Parents should try to be on the same page about their own “household rules” for social distancing as much as possible so children know what to expect at both homes. None of this is perfect. Parents can only do their best. However, now is the time for parties to make extra efforts to be consistent between households in the best interests of their children.
The County Clerk’s Offices and Family Court Clerks are not accepting paper or E-filing in non-essential matters. For example, you can’t file a new divorce matter now. However, parties who would like to begin a divorce action can still take steps to begin the case without an official filing. Research the attorney you may want to work with and contact them. Underberg & Kessler is fully operational, and our attorneys are ready to conduct telephone and video consultations with new clients to discuss new divorce or Family Court filings. Once you retain counsel, your attorney can reach out to the other party or his or her attorney to discuss preparation of pleadings (even if they can’t be filed at this time). The parties can begin gathering financial documents and completing Statement of Net Worth packets to exchange.
There are a lot of things that parties and their attorneys can do outside of court to move cases forward. If there are financial documents that need to be exchanged, the parties can compile those documents and exchange them between counsel. Proposal letters for settlement can continue to be discussed, drafted, and exchanged. Separation agreements can be drafted and reviewed by all parties. Separation agreements and consent orders can be reviewed, signed by parties, and notarized without meeting in person. Once agreements have been signed, attorneys can draft and submit final divorce documents to the other attorney for review and approval. Attorneys and parties can engage in video conferencing as a group to discuss settlement in a collaborative setting if the case is the right fit for that and all parties feel comfortable doing so.
In many of the scenarios above, the time of social distancing can allow for parties and their attorneys to really take stock of pending cases and see whether settlement is possible. Even if settlement is not possible, attorneys and clients can continue to follow all of the necessary steps in the case as the case moves toward trial in the future.
It is important that you have consistent contact with your attorney. As noted, we are working remotely and continue to move pending cases forward. Even if you don’t have a current case pending, reach out to your former attorney with questions or consult with a new attorney with questions on these issues. We are all in this together and working to make this transition as seamless as possible.
If you have any questions, please contact us here or at 585-258-2800.
You can view more COVID-19-related posts in our COVID-19 Resource Area here.