COVID-19-Family Law Custody & Visitation Problems, Solutions, And Realities

- purofamilylaw

“There are decades when nothing happens-and there are weeks when decades happen.” Vladimir Ilyich Ulyanov Lenin

The courthouse doors have been closed to the non-essential public. The two super-heroes of the law, Lady Justice and Due Process are quarantined against their will.  The Corona Virus or COVID-19 has paralyzed the Los Angeles Superior Court-Family Law Division.  As a result, families in conflict during this crisis have been left to resolve their own disputes. From the ashes of this historical moment the new legal issue of parent-conflicts during COVID-19 will arise.

COVID-19 has emboldened parents to violate child custody and visitation orders. The other custodial parent has been left legally helpless. Since the Stay-In-Place Order was issued, I have received a massive influx of custody order violations calls. I am on both sides of it. One parent says, “the Mother is withholding my children from me because of the virus, what can I do?”  The other parent says, “The mother works at the hospital and could get COVID-19, I am keeping the kids until the virus is over, I don’t care what the judge does me or if the cops arrest me!”

Legally speaking, court orders must be followed at all times. Where other states in their notices to the public have explicitly said that the stay-in-place order does not pertain to custody orders, the State of California and the County of Los Angeles have failed to issue any guidance regarding custody exchanges during COVID-19.

On March 16, 2020, the court announced that it was closed for all business until March 19, 2020. Afterwards, a series of orders were issued that said all non-essential hearings will be continued until further notice. I have received information that the family law court will remain closed through June 22, 2020 to all hearings other than essential hearings. Only two essential hearings exist during COVID-19

  1. Ex Parte Custody and Visitation Requests
  2. Temporary Restraining Orders and Permanent Restraining Order Hearings
  3. No other hearings or issues may be heard by the court

A Temporary Restraining Order (“TRO”) is the best way to obtain temporary custody and visitation orders during COVID-19.  If the facts meet a certain threshold, the judge will almost always grant a TRO. A restrained party has a right to go to trial on the TRO within 21-days. That is a fundamental due process right. The court on its website proclaims to be operating only for this most important fundamental due process rights like a Restraining Order Hearing.

In reality, all Restraining Order Hearings are being continued so long as one party requests a continuance by direction of the Presiding Judge. A litigant’s due process right to fight potentially false allegations on a restraining order do not exist during COVID-19. That means if a litigant can show violence and obtain custody, they can ride out the restraining order and have no visits with the other parent at least until the end of June.

Obtaining a TRO is a very low legal standard. Consult with a family law attorney to see if any facts in your case could constitute domestic violence. This is best legal option to prevent or obtain custody and visitation from the other parent during COVID-19. My website has self-help information in applying for a TRO.  I highly recommend consulting with an attorney about if you have valid grounds for a TRO. If you do not and the other side prevails it, you could have to pay their attorney fees and potentially lose all credibility with the court in a custody dispute.

The other essential hearing is an Ex Parte or emergency motion for temporary sole custody. An ex parte is a very high standard of proof. Pursuant to Family Code Section 3064, the court SHALL DENY any ex parte request to change custody and visitation of a minor child unless the moving party can show that the child is at “imminent risk of substantial physical or emotional harm” or at risk of being “removed from the State of California.”  The law instructs judges to deny ex parte request.

I consulted on several COVID-19 ex partes the last few weeks and all were denied. In one, the other parent worked at a local hospital and was more likely to be exposed to COVID-19. The request was denied. In another, the other parent worked at the International Terminal at LAX and the minor child had asthma. The court denied that the child was not at immediate risk of getting COVID-19. I have self-help information on my website regarding ex partes that should be referred when considering to go ex parte on your own.

It is my opinion, withholding a child in violation of a valid custody order because of COVID-19 is not a legal emergency or essential hearing. Since the court will not help you enforce a valid court order during COVID-19, your legal options are limited.

If You Have A Valid Custody/Visitation Order And The Other Parent Refuses To Follow

Forcing the other parent to allow you to see your child(ren) with a valid court order is very nasty and difficult business. The only option is to call the police to enforce a valid court order. That means that the child is going to see a parent call the cops on another parent and all of the negative emotions and energy associated with that.

The police can be called to enforce a valid court-order and do a welfare check. The reality is that cops will not rip the child from the other parents’ arms. Often times the police refuse to even go out and check on the welfare of the child personally.

My advice is to be really nice and respectful to the police when you make the call of violation of custody order or go to the station.  Explain that the other parent is violating a valid court order and you need assistance in a custody exchange and determining the welfare of your child. In my experience 8 out-of-ten times, the police will do nothing.  In these desperate times to be with our loved ones its often the only chance.

Last week, I had a case where the mother has sole custody in Los Angeles and the kids visits their father for Spring Break. The State of Florida is requiring anyone from out-of-state to self-quarantine for 14 days.  Thereby the children will be kept longer than the order for Spring Break. We tried to call the visit off to no avail. The father showed up with the police to retrieve the children. My client did not follow my advice and opened the door for the police without a warrant. The police assisted the father in getting custody and the kids are now in Florida and the father refuses to return the children to Los Angeles

I have a case where the parents have 65/35 custody. The mother is refusing to exchange the child because she has stated that the father is not following the COVID-19 guidelines and she is the primary parent. The father went to the Los Angeles Sheriff Department for help. They went to the mother’s home and she refused to open the door or do the exchange. The police could not get the mother to exchange the child by threat.

The mother has a pattern of canceling visits and acting irrational. She once placed a tape recorder in the child’s clothing in a desperate attempt to prove child abuse. This mother has stated that until the stay-in-place order is lifted in Los Angeles that the minor child will not be exchanged. That is likely to be over 90 days. I fear this mother will retain primary custody and not be punished in any manner regarding her conduct during COVID-19.

Contempt of court is the usual vehicle to punish parents that knowingly violate a valid court order.  I usually advise my client not to file for contempt of court. It is a long and expensive process and is often continued and drawn out. In the end, contempt is often a waste of time and resources.

Presently, the court has issued an order that it will not accept any contempt of court filings for violations of child custody orders. For the “child alienators,” “restrictive gatekeepers”, and “Munchausen mothers” this is a license to conceal children. COVID-19 is providing immunity for contempt of court. As a result, children are being withheld from their parents for months.

The only option right now for parents of children unlawfully being withheld from them is to file a Request for Order (“RFO”) to modify custody and visitation. I filed a motion on April 09, 2020 for a similar case and it has not been calendared until July 16, 2020.  That is a long time to wait to see your child(ren).

Until a parent obtains a court order for visits, the police have nothing to enforce.  The only other way to see your child(ren) during COVID-19 is from the other parent’s consent.  I am advising clients whose children are being withheld to pay the other parent off or find any means to find a temporary resolution. The reality is that once a parent gets away with withholding a child, they get a taste for it, and will not stop until they get their day in court to spew lies and distortions to justify their wrongful actions.

I Do Not Have A Court Order And The Other Parent Is Not Allowing Me To See My Child

If you do not have a court order for custody and visitation, file a petition for divorce or paternity, and file a motion to set up a court-ordered custody/visitation. In the Los Angeles Superior Court that will be the following California Judicial Council FOR PATERNITY: FL-200, FL-210, FL-105, FL-300 (with declaration and exhibits), and Los Angeles Local Form Family Law Case Cover Sheet: FOR DIVORCE: FL-100, FL-110, FL-105, FL-300 (with declaration and exhibits), and a Los Angeles Local Form Family Law Case Cover Sheet.

The clerk’s offices are closed and you will need to fax file your case. If you are lucky your request will be heard in July. You do not have a moment to spare to reserve a date in court. I highly recommend seeking legal advice in preparing and filing these documents. You need a family law lawyer’s help to tell the story of your family.

When will the doors of justice open again?  I am an officer and servant of the court. My prediction is not until July or August will the court be ready to hear any case of a parent withholding visits because COVID-19. That means to get your paperwork ready and filed so you can reserve your place in line.

Think when your flight is delayed at the airport.  It first gets delayed an hour.  Then when the hour is up, you notice the plane is still not at the gate.  At the very last minute, the gate check-in announces that it will be delayed only another hour. Yet, the plane is still not at the gate. It is obvious that the estimated departure will keep getting delayed.  Be prepared for the court to not be open to handle custody cases for months.

That means that parents will continue to withhold children through the spring and into the summer. Despite, no orders issued that allow parents to cancel visitation and custody exchanges. Tension is building every day and families are suffering without the help of the courts.

I expect a flood of cases to pour into the Los Angeles Superior Court to change custody and visitation based on one parents’ conduct during COVID-19. I foresee judges not using it against the offending parent to switch custody around.  Afterall, the world is locked down and shutting down.  Parents are stressed and making emotional decisions that under the circumstances may be deemed justifiable by the court.  I am interested to see how the Los Angeles Superior Court Family Law Division responds to this foreseeable influx of cases.

My instinct is that the court will be overwhelmed with claims and not hold it against parents that withheld custody.  The courts will be slammed when life gets back to normal. When slammed the court is more prone to cut corners to save time. That means that the poor parent that is not able to see their child right now, will likely not get the justice they deserve when life gets back to normal. And more importantly the children suffer during COVID-19 without both parents.

Most lawyers that I know are not signing up a lot of new cases. Parents are not sure when their next paycheck will come and are left to fend for themselves. An option to save money now is for an attorney to just provide document preparation. That means you represent yourself in court until you sign a new contract. The lawyer prepares the legal documents only, fleshes out your legal issues, and assists in getting you set up for your day in court over COVID-19 conduct.

Think of it like a la carte lawyer services. Getting your paperwork straight and filed right now could be the difference of resolving a custody dispute this summer or at Christmas.  Document preparation is done at a flat rate.  That means no hidden costs.

Also, lawyers are out of work too. Now is a bad time to hand them over a big retainer check. I am never surprised to hear of unethical billing practices.  With document preparation and flat fees, you can make sure you are not getting hustled while fighting to get your kids back.

Call and inquire about FLAT FEE DOCUMENT PREPERATION for your COVID-19 custody case.