Many clients are wondering what, if any, impact the COVID-19 pandemic may have on his or her obligation to comply with existing family court custody and child support orders. Please consider the following:
Court orders are enforceable through the court’s contempt powers.
Just because the courthouse is effectively closed during this crisis does not mean your court order becomes inoperable. Judges are still expecting their orders to be complied with absent significant exigent circumstances. Your failure to comply with a court order can be deemed a contempt against the court, subjecting you to payment of the opposing party’s attorneys fees, payment of a fine, or even, in some instances, serving a jail term for violating the court’s order.
Governor Cooper’s executive order requiring persons to stay at home has an exception for parties complying with custodial or visitation arrangements. So the pandemic does not give you license to ignore or reject the court order, and you should comply with that order if you are at all able.
Make sure you document your rationales for deviating from a custodial schedule.
That being said, there may well be circumstances where you cannot comply with the court order. For example, if your ex-spouse has the coronavirus in his or her household, or is in a period of quarantine due to exposure to the virus, you are not going to want to be sending your children to your ex-spouse’s residence during that time. (For that matter, your ex-spose would presumably not want you sending the children to him or her.)
In any event, if there is going to be a deviation from the court order due to a public health condition, make certain you document as best you can the reasons for the deviation. Also make certain that you offer (in writing, and repeatedly) the opportunity for “make up” time due to the deviation. Taking such steps lessens the likelihood that you would be held in contempt of court and, hopefully, also alleviates any hard feelings between you and your ex-spouse concerning the deviation.
But remember the point above—you are expected to comply with the court order, and you should deviate from it only in light of significant exigent circumstances such as exposure to or illness arising from the virus.
Make sure you document your loss of employment/income in the event you are unable to meet financial obligations imposed by a family court order.
Your obligation to comply with the order extends to financial obligations imposed by the order (i.e., child support or alimony). But you may also find yourself in the unfortunate circumstance of losing your job and income stream impacting your ability to comply with the order. What should you do?
First, remember that the crisis by itself is not an excuse to deviate from the court order. For example, even with the job loss if you have sufficient liquidity to meet your continuing financial obligations under the court order, then meet those obligations. A judge is not going to look kindly on someone who stops making payments under an order but has sufficient funds in a bank or brokerage account to continue to keep making payments on at least a temporary basis.
However, if you are truly in the circumstance where your job loss prevents you from meeting your court ordered obligations, then you must make certain you retain documentation of your job loss. You should also retain copies of any efforts you attempt to find alternate employment, even if that employment is on a temporary basis.
Also realize that your financial records are going to be an open book to both the court and the opposing party if the opposing party seeks to hold you in contempt for failing to meet your financial obligations. That means your bank, credit card, and other financial statements are going to be made available and scrutinized by both the court and the opposing party. So make certain you can document all your income and, particularly, all your spending.
Finally, even if you are not able to meet your entire obligation, do what you can to pay as much as you possibly can. And make certain your ex-spouse knows you intend to make up the difference when the pandemic passes and you are hopefully employed once again.
If you have questions concerning compliance with your unique family court orders, or require other domestic counsel or litigation assistance in these uncertain times, please contact Michael Harrell or your Manning Fulton relationship attorney.