Child Custody Disputes in the COVID-19 Era & Beyond

Mom and son

We are living through unprecedented times in the COVID-19 era. With developments occurring in real-time and almost hourly, it is very difficult to plan anything amid ongoing uncertainty. The Family Law Courts in New Mexico are no exception.

At Sandia Family Law, in addition to providing excellent representation, one of our long-standing commitments to our clients is helping them understand what they can realistically expect from the court process. In this blog, it is what to expect from the process when parents cannot agree on aspects of parenting and must submit their disagreement to a court for resolution in the context of the ongoing international COVID-19 crisis.

Pre COVID-19 Era

Historically, when controversy arises, if the parents cannot reach an agreement, one or both will file a Motion with the court asking for their respective relief. The court then sets a hearing, typically within the next six to eight weeks, and depending on the form of hearing the court sets, the parties and counsel proceed at the direction of the court.

This could mean:

  • moving forward with an evidentiary hearing,
  • sending the parents for some sort of evaluative process (i.e., appointing a Guardian ad Litem, sending the parties to some form of Court-annexed clinical evaluation, ordering a formal Custody Evaluation)
  • sending the parties to mediation, etc.

The court has several options that can be discussed and determined at the hearing. The question regarding how to proceed centers around deciding how to get the best information to the court for it to make an informed ruling on the merits of the parents’ respective allegations and requested relief. It is a process that grinds along at its own pace, which is not fast enough for most parents, but it has been at least more or less predictable for many years.

The COVID-19 Era

As of the posting of this blog, my last court hearing was on March 12, 2020, in Albuquerque. At that hearing, the judge had left a meeting with other judges and announced that all hearings set for the remainder of March 2020—and all hearing set during April 2020—would be vacated and reset later in the summer.

At the time, I already had about 10-12 hearings set during April, which have all been reset to sometime in July or August. Hearings that were set in April would have been requested around February 2020, meaning that in the COVID-19 era, parents will be waiting at least six months for their day in court. We anticipate that Motions filed after March 12, 2020, might have to wait closer to nine months for their day in court while this log jam clears. At this point, we do not anticipate the courts resolving anything anytime soon, which creates pressure on parties to settle out of court.

We have also received Memorandum Orders (Orders issued without a hearing), in some cases outright canceling our hearings and requiring the parties to participate in some form of mediation before the court resets the canceled hearing.

Co-parenting in high conflict cases in this COVID-19 era has led to three primary results:

  • No change, meaning both parents maintain the status quo timesharing schedule without deviation;
  • Resistance, meaning one or both parents believe the children’s risk of exposure to COVID-19 while in the other parent’s care is so high that they believe they should just keep the kids until all of this blows over; and
  • Temporary deviation, meaning that the parents mutually agree to temporarily modify the schedule, intending to ultimately resume the status quo timesharing schedule. This seems most common when the children are elementary school-age.

Because students will have no more traditional, formal classes for the remainder of the school year, daycare is a real issue for parents who can continue working full time through the COVID-19 crisis. Some parents have agreed to temporarily move to a 50/50 week on, week off, timesharing schedule. Perhaps necessity is the mother of collaboration in, but it illustrates the possibility of cooperation.

To be sure, the courts have been sending memos to attorneys keeping them informed about schedules and procedures during COVID-19, and the Family Courts have made it clear that this crisis is not going to be considered as grounds for either parent to unilaterally deviate from any current Orders. However, some parents still insist on doing so.

Post COVID-19 Era

As we do not know how or if COVID-19 will ever be fully behind us, it will be a challenge to plan for litigation in family law cases. All indications are that our global pre-COVID-19 lives will resume at some point, in phases and over time. That’s not much, but it’s about all we know. How and when a return to a semblance of normalcy occurs is utterly unknown. Also unknown is how much of the COVID-19 era will remain with us indefinitely. Masks, gloves, occupancy limits, social distancing…many of these protocols may be with us for years to come.

Another unclear aspect of our futures is if the courts will resume live hearings at all, but even if/when they do, it will certainly not be like it was “before.” There will be myriad new procedures and protocols which haven’t even been written yet and which will undoubtedly impact proceedings to varying degrees of scope and magnitude.

Like many other professions, attorneys have turned to video conferencing as an alternative to meetings in-person. The courts are also working to utilize this technology to conduct hearings, but this process is slow and frustrating. I recently heard one experienced and well-respected local attorney describe an evidentiary hearing conducted by video conferencing as “a train wreck.” In addition to the difficulty of getting exhibits admitted during a video hearing, issue of interacting with clients during a hearing is also an issue.

When I am sitting at a table with my client, I can simply lean over and speak with my client if necessary, to get little bits of information, to clarify information presented, or to simply calm them down. It is impossible to do this when the lawyer and client are in different locations, and it negatively impacts the assistance an attorney can provide to their client during an experience as stressful as a court hearing.

We anticipate the courts to strongly encourage alternative dispute resolution and even demand it as a prerequisite to setting any hearing. Many of the attorneys we come up against are decent problem solvers who already work hard to settle cases out of court, so in those cases moving into the future will not be such a departure from what we are already doing. However, the courts are aware that we all have a fundamental right to access the courts to present evidence and for a ruling on matters in controversy. They must figure out a way to accommodate this fundamental right.

Remember, lawyers still regularly use fax machines, so it is fair to say that most lawyers prefer to understand the system in which they operate to maximize the benefit to their clients. But this also means that they can be pretty resistant to change.

Our Legal Team at Sandia Family Law is Here to Advise You

Moving into the future, we at Sandia Family Law will fully embrace and engage the coming changes to handling custody disputes. Our ongoing commitment to providing excellence in Family Law remains strong, as we are dedicated to making sure our clients understand what they can expect from a now changing court process.

Please call Sandia Family Law LLC at (505) 544-5126 or contact us online to see how we can meet your legal needs in these changing and unsettled times.

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