The COVID-19 pandemic presents unexpected and unprecedented challenges for those with family legal issues. With many parents forced to work remotely while also home schooling their children, numerous questions arise regarding how to navigate custody and other family matters. Due to the unparalleled economic collapse and resulting job loss, many people are simply unable to meet their child support, maintenance and other required family financial obligations. The fact that most New York courts are inaccessible for all but the most serious matters concerning health and safety only compounds the problem. This memo offers some practical suggestions for navigating family legal issues during these difficult times.
Child Custody and Visitation
Custody orders during the current pandemic should be followed no matter how inconvenient they may appear to be. Jeffrey Sunshine, the Statewide Coordinating Judge for Matrimonial Cases in New York, recently stated: “Those who think that there is a lack of consequences to not conducting themselves appropriately during this crisis are wrong.” If parents are unsure how to comply with certain provisions from their custody orders, they must try to the best of their ability to communicate and cooperate with each other to reach agreement.
Families with first responders face particularly difficult circumstances. Some parents may be reluctant to comply with custody orders where the other parent is a first responder, healthcare worker, police officer, firefighter and the like. However, the fact that the non-custodial parent is a first responder, and therefore naturally more at risk than those who are homebound, may not justify, by that fact alone, noncompliance with custody agreements, as courts are likely to presume those first responders are taking necessary precautions and protocols.
In situations where compliance with a custody agreement or order would place a child in serious risk of harm (such as where the child has an underlying respiratory condition), and the parents cannot reach an agreement as to access and visitation, parents may consider filing an emergency motion with the court.
Parents should also know that custody determinations are never final and may be modified based on various criteria including, quality of the home environment, the parental guidance provided by the custodial parent, ability of each parent to provide for the child’s emotional and intellectual development, financial status of the parents and length of time that the custody arrangement has been in effect. Although custody modifications are not readily granted, the current health emergency may present unique circumstances where such modifications, at least on a temporary basis, may be appropriate (such as where the physical or mental health of a custodial parent has been significantly compromised).
It is essential for parents to communicate openly, especially regarding any health issues that their children have or whether anyone in their respective homes tests positive for COVID-19, as there are numerous New York regulations regarding quarantine/isolation that must be followed. (https://coronavirus.health.ny.gov/travel-large-gatherings-and-quarantines#quarantines). Parents must also communicate about their child’s remote schooling to ensure that assignments are completed and children do not fall behind in their school work.
Modification of Child Support
Parents who have experienced job loss or a decrease in income may seek a downward modification of child support upon a showing of a “substantial change in circumstances.” The factors considered by the Court in making a downward (or upward) modification are many but include the loss or gain of income or assets by a parent, and the increased costs and/or needs of the children due to special circumstances. The “change in circumstances” must post-date the original support order and, where a parent has lost their job, they must attempt to obtain employment commensurate with their qualifications and experience. What constitutes a “substantial change in circumstances” is fact-specific and depends on the unique circumstances of each family.
For orders or stipulations entered after October 2010, child support may also be modified after the passage of three (3) years since the last order or modification, or where a parent’s gross income changes by 15%.
Modifications of Spousal Support
The current health emergency may also prompt parents to seek a modification of maintenance payments. A modification of spousal support also requires a “substantial change in circumstances” as measured by comparing the payor’s financial circumstances at the time of the motion and at the time of the divorce or the time when the order sought to be modified was made. Such substantial changed circumstances may be present where the paying spouse loses a job or becomes so seriously ill that he or she cannot earn an income, where the receiving spouse is unable to support themselves or where the receiving spouse’s financial position changes negatively.
Medical Insurance
Medical insurance is obviously of paramount importance during the current health crisis. It is imperative that both parents have readily available information regarding their children’s healthcare and the provider’s explanation of benefits. Since typically only one of the parents maintains health insurance for the child, it is important for the parent not maintaining health insurance to get authorization from the other parent so as to be able to obtain information directly from the insurance company. For divorcing spouses, a soon-to-be former spouse cannot remain on the other party’s health insurance plan, but rather will need to transition to COBRA (if available), a private plan or secure coverage through an employer.
Access to Courts
New York courts currently are not accepting the filing of any new “non-essential” matters. Proceedings in New York Family Court deemed “essential”, however, include child protection intake cases involving applications to remove a child from the home, juvenile delinquency intake cases and emergency family offense petitions seeking temporary orders of protection. As to existing actions in New York Supreme Court, motions are once again being accepted as of May 4, 2020, however, except for emergencies imminently effecting a child’s health, safety or welfare, litigants should expect postponements of previously scheduled court dates until the courts fully reopen.
Although any delay in a family matter is not ideal, the additional time may afford parties the opportunity to resolve their differences without litigation. Alternate dispute resolution methods such as mediation remain available via videoconference despite court closures.
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We hope that you are staying safe and healthy throughout this crisis. If you need assistance or have questions relating to any family law matter, please do not hesitate to contact either of our Matrimonial practice group partners, Arthur Rosenberg (at 212- 519- 5147, arosenberg@kanekessler.com) or Reid Kahn (at 212-519-5129, rkahn@kanekessler.com). Kane Kessler’s Matrimonial practice group can assist in all family law matters including divorce, separation agreements, child custody disputes, and prenuptial and postnuptial agreements.
The offices of Kane Kessler, P.C. are open and working remotely at full capacity. We are available at all times through email, phone, and videoconferencing to address any of your legal needs and answer any of your questions.
This memo is provided for informational purposes only. It is not intended as legal advice and readers should consult counsel to discuss how these matters relate to their individual circumstances.