COVID 19 UpDATE
HELPFUL INFORMATION ON COVID 19
On March 16, 2020, our local Bay Area governments paved the way for unprecedented National responses to the global pandemic of COVID-19. California’s state government quickly followed suit, and soon the entire state was under a stay at home order. The restrictions of the shelter at home orders have varied slightly between counties. At this time, there have been three issuances of this order: March 16, 2020, March 31, 2020, and April 28, 2020. There is no firm date for when authorities will lift these restrictions; however, Gov. Newsom has outlined the path and his benchmark measurements for when and how we will begin to emerge from this period.
There are numerous ongoing discussions concerning the impact of these shelter in place directives. Widely publicized discussions primarily focus on small businesses and employment statistics. These discussions fail to address the very real, and incredibly stressful, impact these orders are having on an individual, micro-level.
COVID-19 and Its Effect on Family Matters
For those with ongoing family law matters, these stressors magnify family law conflicts even further. Individuals who struggle with co-parenting and clear communication with exes during “normal” times are experiencing increased strains on their communication and ability to co-parent. With children required to attend school from home and the changes in parent’s lives, issues of child care are present as never seen before. Parents are facing looming child support and spousal support payments while also potentially facing moderate to severe decreases in income.
While the following discussion and information may not answer all of your questions, we hope that it provides some initial guidance.
For starters, download the article “Child Custody and Visitation Policies During the COVID 19 Public Health Emergency” from the Superior Court of California, County of Santa Clara.
If you have additional questions, do not hesitate to contact us to discuss your case.
What happens to my custody and visitation schedule during this shelter in place?
The court’s general direction is that all parties must continue to follow all custody and visitation orders. Parties can continue to modify schedules by agreement; however, neither parent has the authority to demand modifications to the visitation plan.
Please remember that just as you are stressed out, so is your ex/the parent of your child. It is possible to overcome this stress by prioritizing and centering the best interest of your children. If the current court order gives both parents unsupervised visitations, then the court has already found that the other parent is capable and competent to have care of your children. It is now more important than ever to find a way to communicate clearly and calmly with your ex. If at all possible, we are encouraging all parties to find ways to work together during this time. Children are experiencing increased stress levels with the dramatic and immediate changes in their schedules and loss of regular contact with friends and peers.
If you and the other parent do reach an agreement to modify the schedule during the shelter in place temporarily, we strongly encourage you to seek legal advice to turn that temporary agreement into a written court order. Having any modifications written and on file with the court is essential to protecting all parties once things return to normal.
The most important thing for parents to know and remember: fears about COVID19 alone are NOT sufficient reasons to change the visitation on an emergency basis or to demand the other party agree to your desire to change the visitation. Parties must abide by all state and local ordinances regarding shelter in place. It is possible to get a temporary emergency order confirming each parent’s obligation; however, this is costly and stressful and not an ideal way to manage conflicts between parents at this time. It is much better for both parties, and the wellbeing of the children if parents can find a way to navigate these stresses instead of resorting to litigation. The courts are operating with very light staff and their turn around time on emergency filings is much slower than usual.
What happens to my child/spousal support orders?
Many people have suffered financial consequences from job loss or other similar factors with the implementation of shelter in place orders. If this has happened to you, there are a couple of options. First, if you are on good terms with the recipient of the support, you are allowed to reach an agreement modifying the payment terms. If this situation applies to you, it is critically important that you contact an attorney to memorialize this agreement in writing and file it with the court.If you are not on good terms with the supported party, the court has modified the rules on an emergency basis, and it is crucial to file a motion with the court immediately. The changes in the court rules will allow any court order to be retroactive to the date of filing. While you will still owe support until the order is changed, this extends the time the court can look backward to modify the order.
When can I get my family law dispute before our judge? What is happening with the court schedule right now?
As of now, the court has authorized judicial officers to continue all non-essential/non-emergency hearings currently set through the end of May. The court is being very selective about the matters they qualify as an emergency. Most emergency hearings include allegations of domestic violence and usually include minor children.
Per the family code, there is an order of priority concerning the subject matter of family law cases: 1. Domestic violence involving minors 2. Domestic violence without children 3. Custody and visitation disputes 4. Support 5. Property matters. The court has been rescheduling all hearings since March 16, 2020. It is unclear how the court is triaging these continued cases, but you can be sure that they are prioritizing domestic violence and cases with children before property disputes.
There is no prohibition on filing motions at this time. Parties can still file motions on all matters, the unknown is when the court is setting hearings on new filings; and how the court is fitting in the continued hearings.
While we recognize how frustrating this is, the court is asking parties to please be patient. I can assure you that Judges are working diligently to identify cases that cannot be delayed. Further, it is evident from communications received by the court that the judicial council of California, as well as our local judges, are working expeditiously to identify technology that will allow for more accessible remote hearings. There are lots of important factors to consider as the courts venture into remote hearings; the most important of these is ensuring the rights of all parties are protected.
Lastly, it is unknown at this time how the court will operate once it reopens. There is some indication that the court will not resume operations as we have known them again until 2021. The judges and court staff, as well as attorneys, are all eager to return to the practice of law as we know it, and helping people push their matters towards resolutions.
If your case has stalled and you are focused on moving it forward, it is worthwhile to look into alternative dispute resolution options or private judges.
What are the other options available to me and the progress of my case?
Due to the backlog and rescheduling of cases, this is an excellent opportunity for parties to avail themselves of alternative avenues of case resolution.
- Mediation: mediation can take a few different forms. The basic idea is the utilization of a third-party neutral to help parties reach an amicable resolution in their case. A mediator can help parties identify their primary goals and ways to help each party achieve that goal and resolve the other outstanding issues.
- Collaborative law: Collaborative law requires both parties to have legal representation. This process still allows parties to avail themselves of the discovery process. The end goal is for the parties to navigate the dissolution process focused on minimizing litigation and enabling the parties to come through this process with the least amount of stress and tension possible.
- Private judges: if parties to a dissolution action are not able to utilize mediation or collaborative law, then there is the option of hiring a private judge. A private judge is usually a retired judge. The parties locate an available private judge, file the appropriate stipulation with the court, and then can proceed to present the issues to the judge for resolution. This process can allow contested matters to progress quicker. The private judge will still need to follow state and local social distancing guidelines. Even so, this can good be a good option for the right parties.
- Parent Coordinator: Parties with minor children in high conflict custody cases can jointly select a mental health practitioner, usually a psychologist, to serve as a parent coordinator. Depending upon the specific agreement of the parties, the parent coordinator can have broad discretion to assist in conflict resolution. In some cases, parenting coordinators can have the authority to issue orders in the case. One benefit to a parent coordinator is that they are authorized to communicate with the minors (whereas generally, Judges cannot) in determining what is in the best interest of the child. Parent coordinators can be very effective at decreasing tensions and redirecting the case.
Shelter in Place and Domestic violence
One unfortunate impact of shelter in place is that some are stuck at home with people who jeopardize their safety. Alcohol purchase is up across the country. Tensions and stress are at an all-time high with all of the unknowns and ensuing anxiety.
If you are sheltering in place with someone whom you do not feel safe with, there are options available to you. You can obtain an emergency restraining order, and as a part of that, you can ask to have the other party removed from your residence. The court can also issue an order requiring them to continue assisting with the bills even though they are no longer living in the home.
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Gomez Edwards Law Group
2391 The Alameda, Suite 200
Santa Clara, CA 95050
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Gomez Edwards Law Group has represented clients in these San Francisco Bay Area cities: Atherton, Campbell, Los Altos, Mountain View, Los Gatos, Saratoga, Santa Clara, San Jose, Sunnyvale, Milpitas, Palo Alto and more.
The law firm has also represented clients in:
Santa Clara County, Alameda County, San Mateo County, San Francisco County, Santa Cruz County, Marin County and more.