Divorce

San Mateo County Superior Court Releases Best Practice Recommendations for Parents Sharing Custody and Parenting Time During COVID-19

COVID-19 has presented a new set of challenges for parents sharing custody and parenting time. Shelter-in-place orders, school closures, job losses, and limited family court operations have complicated parents’ ability to interpret, follow, and enforce court-ordered parenting plans.

On April 13, 2020, the Family Law Division of the San Mateo County Superior Court provided nine best practice recommendations for parents sharing custody and parenting time during the COVID-19 pandemic.

The goal of the Court’s recommendations is to encourage parents with shared custody orders to continue to follow their parenting plan as closely as possible. During these uncertain times, it is critical that parents are flexible, transparent, and collaborative, as doing so will ensure a level of consistency and stability that is in the children’s best interests.

The nine best practice recommendations include:
1. School Closures. Parenting time should continue as if the children are still attending school in accordance with the school calendar of the children’s school district.
2. Denial of Parenting Time. COVID-19 is generally not a reason to deny parenting time.
3. Parenting Time in Public Places. If there are no open parks or recreation areas where parents and children can maintain social distancing and avoid commonly touched surfaces, then parenting time should be conducted virtually via videoconferencing or telephone.
4. Supervised Parenting Time. If the supervision provider is unavailable due to COVID-19 related issues or government orders, the parents should work collaboratively to ensure parenting time continues to occur in a manner that promotes their children’s safety and well-being.
5. Governor’s Executive Orders Regarding Travel. Parents whose custody orders require out of state travel or travel outside of the 9 Bay Area Counties for custodial exchanges should work collaboratively to determine whether such travel is currently advisable or should be rescheduled in light of local health conditions where visits are scheduled to occur and the potential for COVID-19 related travel disruptions.
6. Exchanges. During the exchange of children, all parties should follow CDC guidelines and local health officer directives for limiting the spread of the virus.
7. Transparency. Unless parties are restrained from communicating with one another by court order, parents are encouraged to communicate with one another about precautions they are taking to slow the spread of COVID-19, and about potential exposure to the virus within their own households.
8. Makeup Parenting Time. If parenting time is missed due to COVID-19 related issues or government orders, parents are encouraged to work collaboratively to schedule makeup parenting time.
9. Flexibility. If COVID-19-related changes to a parent’s employment or health situation make current custody orders impractical, parents are encouraged to work together to reach agreements to modify those orders in the best interests of their children.

The complete recommendations can be found at the link below: https://www.sanmateocourt.org/documents/court_news_and_notices/041320a.pdf.

Divorcing While Sheltering-In-Place Due to Covid-19 or Coronavirus

Divorce is supposed to be one of life’s most stressful events.  And then you add Covid-19 and school closures to the mix.  It is a highly combustible situation!  The stress level for our clients, especially those who have a high-conflict parenting relationship with their ex-spouse, is off the charts right now.

While we are all new to this constantly changing landscape, below are some tips to help guide litigants and parents during this uncertain time.

• Continued Hearings. Many courts in the Bay Area have postponed non-essential court hearings.  If you have a matter pending with the court, go online or contact your attorney to find out whether your case has been impacted.  Do not appear in court if you are sick or symptomatic.  Contact your department and ask the clerk for permission to attend your appearance telephonically.  If you cannot reach your department’s clerk, try calling the court’s family law clerk for more information.  For updates on California court proceedings, visit: https://support.onelegal.com/california-court-updates-covid-19

• ADR. Ask your attorney about ADR, including mediation, attorney-assisted negotiation and settlement, private judging, or collaborative divorce to move your divorce case forward to a resolution while the Shelter-In-Place Order continues.  Many divorce professionals are continuing to resolve cases using Zoom or other web conferencing technology.  There is no reason why your case should have to stop just because the courts are temporarily shut down.

• Domestic Violence Restraining Orders. For those of you who are in an abusive situation or need the protection of a domestic violence order, know that courts remain open to issue emergency domestic violence restraining orders.  Also, law enforcement and emergency services continue to operate.  You can call the police if you are experiencing domestic violence.

• New Divorce Cases. Can you start a divorce now?  Yes, the courts are allowing cases to be filed.  However, the appropriate timing of a divorce filing really depends on the unique circumstances of your case.  You should consult with a family law attorney for advice about timing.

• Follow your Custody Orders/ Parenting Plans. Do not use Covid-19 as an excuse not to exchange your children or follow a court order or written parenting plan.  Judges will not look kindly upon parents who use this crisis as an excuse to withhold their children from the other parent.  Moreover, children right now need a stable home life more than ever because they are losing the structure and routine associated with attending school.  If your children are accustomed to a regular parenting schedule, this schedule should continue unless there are exigent or emergency circumstances warranting a deviation, such as the other parent is self-isolating or has been diagnosed with Covid-19.  If you are truly concerned about the other parent’s ability to parent safely during this crisis, you should promptly seek legal advice.  If your parenting plan or custody orders are ambiguous and you are unsure how to handle the school closure, try to work it out with the other parent or seek legal advice if necessary.  Try to be flexible and put the needs of your children first.

• The Importance of Self-Care. Please put the oxygen mask on yourself before your child (i.e., the importance of self-care).  Now is the time for parents to take care of themselves so that they are able to take care for their children.  This includes eating well, getting enough sleep, and getting exercise.  Stress can also be managed with the help of a meditation app, such as Calm.  It’s also important that we all find opportunities to connect with one another where we can by telephone or Zoom.

• Follow the CDC Guidelines. Please also help each other by following the CDC guidelines and orders of our local and State governments.  For more information, please visit https://www.cdc.gov/coronavirus/2019-ncov/index.html.

Obviously, this is a rapidly changing situation.  The information provided above does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.  Nor is the information contained in this article intended to be exhaustive.  Readers of this article should contact an attorney to obtain advice with respect to any particular family law matter.

The Second Appellate District finally eliminates the confusion, holding in Marriage of Perow & Uzelac (2019) 31 Cal.App.5th 984, that a responding party’s request for sanction-based attorney fees under section 271 is not an impermissible request for alternative relief on different issues. The court explains that the Family Code, Section 213 restrictions on seeking affirmative relief on issues different than those raised in the moving papers are designed to keep the proceeding limited in scope to the “message” raised by the moving papers. By contrast, when the responding party is seeking Family Code, section 271 sanctions to redress the moving party’s conduct in litigating his/her motion, the sanctions request does not fall outside the scope of the moving party’s “message”. The sanctions request is properly responsive to the conduct of the movant and is therefore a permissible “attack on the messenger, not on his message.” (Id. at p. 991.)

Founding Partner, Kimberly A. Madigan, CFLS was recently interviewed by Jason Crowley, CFA, CFP, CDFA.  For a link to the interview, please visit https://www.survivedivorce.com/california-divorce-a-beginners-guide.

What Is an Emergency Screening?

An Emergency Screening is ordered to assist the court in determining the health, safety, welfare, and best interests of the child regarding the current emergency related to child custody and visitation.  An Emergency Screening is an urgently needed and time limited examination conducted by an investigator from Family Court Services, focusing on emergency issues and resulting in written recommendations to the court.

When Is an Emergency Screening Appropriate?

Emergency Screenings are a limited resource which should be reserved for cases involving true emergencies pertaining to a child’s immediate health, safety, or welfare.  The court will send a case to an Emergency Screening only if it is necessary due to an imminent risk to the child.

Pursuant to the Guidelines, an Emergency Screening is appropriate when:

• There is evidence that the child may have been abused, neglected, or endangered;
• There is evidence of child abduction or legitimate concern related to potential child abduction;
• A parent is denied access to the child and there is no visitation order;
• A move away issue is related to the emergency safety issues;
• There is significant evidence that the child is suffering severe ongoing distress related to the existing time-sharing arrangements;
• A parent is severely developmentally or psychiatrically disabled and the judge is therefore unable to determine an appropriate temporary time-sharing arrangement; and
• Medical neglect that endangers a child.

What Happens at an Emergency Screening?

Before the Screening:  Each party may submit documents, certificates, photos, records, letters, etc. to the screener so long as everyone in the case has been given a copy.  A signed declaration made under penalty of perjury or a copy of a proof of service is required.  The limit for documents is 15 pages.  Attorneys will meet with their assigned screener for about 15 minutes.  Counsel will have the opportunity to tell the screener what they allege is a safety concern, deny is a safety concern, and feel would be best for the child.

During the Screening:  First, the screener will interview the parents.  Domestic violence victims are entitled to have separate interviews and may have a support person attend the screening.  The screener will then review the court file and selected documents or materials related to the emergency issues.  The screener will:  (1) conduct criminal record checks on all adults living in the home; (2) conduct a Child Protective Services history check; (3) interview the child(ren); (4) observe the child(ren) interacting with the parents or other family members; (5) interview other family members or witnesses by phone or in person; and (6) collect additional data from school, daycare, physicians, police, etc.

After the Screening:  Upon completion of the Emergency Screening, the screener will present written recommendations to the parents, attorneys, and the Court.  If both parents agree to the recommendations, they will become court orders.  If either parent does not agree with the recommendations, they will be presented to the judge and the parents will have a short hearing at the conclusion of which, the judge will make immediate, temporary orders related to child custody and visitation.

For more information about Emergency Screenings, please visit https://www.scscourt.org/court_divisions/family/fcs/fcs_home.shtml or contact a family law attorney who practices in Santa Clara County.

1. Make a detailed holiday plan and keep the children informed of the plan. Planning and predictability helps children cope with the often-intense emotions and expectations of the holidays.
2. Be open and flexible. Although it is important to have a detailed and specific plan, changes are inevitable so don’t adhere too rigidly to your plan.
3. Make early travel and logistical arrangements and provide the other parent with a copy of the travel itinerary and emergency contact information. This avoids last minute confusion and significantly decreases risk of conflict.
4. Include the children in making the plans. If the children are old enough, include them in discussions about the development of new, post-separation holiday traditions, but make sure they understand that the final decision making is up to the parents.
5. Create space for the children to describe their holiday experiences at the other parent’s home while still respecting their privacy and avoiding interrogation.
6. Create new holiday traditions. Even though the family structure is now altered, invite the children to work with you to help create new personalized traditions while still honoring the old traditions.
7. Holidays are not the time to introduce new romantic partners or other emotionally charged information such as a move.
8. Make pick-ups and drop-offs conflict free. Avoid the temptation to discuss separation or divorce issues with the other parent during holiday drop-off and pick-up times as tensions are heightened and the children sense this.
9. Email communication should be brief and focused. This is especially important during the holidays. Limit emails to one topic using one paragraph of five sentences or less and send no more than two emails per day, absent an emergency.  Keep the focus of your emails on the children and try not to repeat yourself.  Make sure emails are between the parents, not significant others or step-parents.
10. Give yourself a break. Holidays can be stressful in the best of circumstances.   It is to be expected that you will struggle with difficult feelings and behaviors.  Do your best to parent cooperatively and put the children first but understand there is no right or perfect way for divorcing families to manage the holidays.

Adapted from Kids First: What Kids Want Grown-ups to Know about Divorce and Separation by Peg Libby (AFCC Ask the Experts).