Tanzina: I'm Tanzina Vega, welcome back to The Takeaway. For the past few weeks here on The Takeaway, we've been looking at how the coronavirus pandemic has brought many courts around the country to a grinding halt in a series I'm calling justice delayed. Today we're talking about family court and the backlog of child support and custody cases that have piled up over the past few months, leaving parents and children from all walks of life wondering how and when these issues will be resolved.
Matt: Hi, this is Matt in Beverly Hills. It's drawn out the process considerably. I started my process in Alameda County in December of 2019. Since the pandemic, it's been almost impossible to get anything through the courts to get a review, even an emergency order. Our first custody court date is now set for March 2021. There's no review or enforcement process in place as such my daughter's mother has frequently been out of compliance with our existing custody order.
James: My name is James Mitchell. I'm calling from Slidell, Texas. My son has a case where he wasn't able to get the child support when he started, he had to go back to court and do some more work and because of the pandemic, he can't do that because the courts are closed. He has tried to contact the state attorney general, the local attorney general in the County and he has no recourse.
Tanzina: Thank you to our callers from around the country. Here to help us understand what this is looking like in New York, is Judith Poller a co-chair of the Family Law Department at Pryor Cashman LLP. Judy, thanks for being with me.
Judith: No problem. Glad to be here.
Tanzina: The courts here in New York, like in many places around the country, started to shut down as the pandemic hit its peak back in March, what types of proceedings were allowed up until that point?
Judith: Until March business, as usual, though, business as usual still involved backlogs and things not moving particularly quickly, but they were in place. Courts completely shut down March 17th, and other than emergency filings, they did not reopen for filings until the late in May. Basically, for those two full months, nothing was getting done and even emergency filings were very hard to get through. Sometime in the beginning of May, however, even later April, judges became available to do call calls, and Zoom or Skype as the court system used and now Teams became the way of judges communicating with people. It slowly began to open, but for filings, not till the end of May.
Tanzina: Judy, remind us when you say emergency filings were what were allowed, what are we talking about there? What types of emergency filings?
Judith: Through emergencies, such as domestic abuse, withholding of children, trying to relocate without permission, real emergencies. Frankly, people try to concoct emergencies which courts completely shut down, but real emergencies such as what I just described, but I have to say that even with real emergencies, it was very hard to get access to the courts. Frankly, even now with the courts still though open, they have such short staff that getting things through, including emergency motions, is taking weeks instead of a day or two.
Tanzina: This, Judy, is obviously having an effect, not just on the parents that are involved, but on the children?
Judith: It's having an enormous impact on everyone but as you say, mostly the kids who are put in the middle here. As you know and we all know, this has been such an anxious, unprecedented period and there are no rule books or guidelines for courts on how to deal with the issues that are at hand. What do you do when one parent thinks the other parent isn't properly following protocols? What do you do when there's really a concern about the transitions between parents, and one parent thinks it's better to be out of the city and the other parent has to stay in the city? How do you deal with schedules?
Though these issues may not be new, they're truly new in this time where there are legitimate reasons to be concerned. Kids who all of a sudden are finding themselves at home and their parents at home and watching parents fight are even in more of a difficult situation than they often are in a divorce or family that's splitting up situation.
Tanzina: Judy, you mentioned a lot of parents that are concerned about COVID-19 protocols as they're splitting up for their children, but I'm wondering if you're seeing even more cases being filed because the pandemic has really wrought havoc on relationships. People are out of work. Are there more people filing, for example, for child support because of the pandemic, are there more cases across the board?
Judith: There are different kinds of cases. Though I hear and read there's a big uptake in divorces, I haven't seen it and the majority of my colleagues are not seeing this big uptake that is being written and talked about. What we are seeing though, is changes in schedules that have been in place for people who are already divorced, modifications in child support, because an earner is no longer earning what he or she was earning. There are a lot of changes and upheavals. We are seeing in people who don't have children, more of an uptake in divorces.
I'm a divorced parent, but it's been many years now. I can't imagine starting a divorce if I had children who are remote learning and at home all the time. I can't imagine the upheaval of going through that. We get a lot of calls from clients calling from their cars or their garages because that's the only place they can find privacy right now. Beginning a divorce process is tough during these times.
Tanzina: I'm also wondering, just in terms of child support, let's say you're a parent who has now found themselves unemployed or is out of work for an extended amount of time, even possibly facing eviction because of the eviction moratorium being lifted across the country, and you're not getting child support. What effect does that have on parents right now? How are the courts dealing with that? Is there a way to prioritize those cases, or are you just out of luck until your number is called?
Judith: Basically, you're out of luck until your number is called. That's not a judgment against the court system. It's just a reality in the backlog. One of the concerns is whether people are using the pandemic as a way of reducing their support versus those who are legitimately in dire straits and have to reduce support. One of the problems is in order to get a reduction in support, you need to file a petition for a modification and only from the date of the filing of the petition, will a modification be granted.
Even though somebody may have lost their job on April 1st, if they don't file until October 1st, those months between April and October are still going to be measured based on the old support order. It's really important if one needs a modification to file. Because there are backlogs, sometimes the filings don't go through so quickly. What I'm seeing is the encouragement for somebody to mail in a petition at the very least so that there's a date stamp that shows a time that a request for modification was actually made.
Tanzina: Judy, one final question for you, as you mentioned, there is no rule book or guide book for dealing with this and I'm wondering whether or not attorneys and or judges are taking, when it comes to custody, questions at least are taking COVID compliance into account. Is that a new layer to this? Are you an essential worker? Do you need to be in contact with other people, and as a result may that put the child at risk? How are judges looking at COVID compliance as a part of the overall custody conversation?
Judith: Absolutely, looking at COVID compliance, it is a huge component of dealing with things from wearing masks to social distancing. I had a case where I was on the phone with a judge at 5:30 PM on a Friday because my client had a special needs child, and the mother was freaking out because the child will not wear a mask, and the father wanted to take the child out to the park, and the mother was, "No way." We had to get on the phone with the judge who said, "No way, you're not taking the child out without a mask, so spend the weekend in your apartment in the city."
Now, with quarantine rules in place for people who travel, some people still have to travel for business if they're traveling to another state, and the requirement is through Cuomo that they quarantine. That impacts schedules. Courts are following what the rules and laws are that are in place. It is absolutely impacting everything on the custody realm.
Tanzina: Judith Poller is the co-chair of the Family Law Department at Pryor Cashman LLP. Judith, thank you so much.
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