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Monday, April 27, 2020

Family Law Client Alert: COVID-19, Co-Parenting, and Your Florida Family Court Case

As the response to the Coronavirus (COVID-19) gets increasingly more complicated and involved, both in Florida and throughout the country, here are some answers to and suggestions regarding anticipated questions you may have about how the Coronavirus affects co-parenting, custody and visitation, and updates regarding court proceedings/closures.

Should I consider delaying the filing of my divorce due to COVID-19?

THE BASIC ANSWER: If you have made the decision to divorce your spouse, there does not appear to be an objective reason not to proceed with it. If a couple is thinking about reconciliation, a successful reconciliation comes from reflection and reunification; it does not come from fear or apprehension.
While there is tremendous uncertainty ahead of us, simply not proceeding with the divorce that you believed was an important decision to make previously does not make that uncertainty go away. If you currently have a divorce attorney you should work with that attorney to ensure that necessary procedures can be taken to try to keep your case active. Doing nothing could affect certain variables in your case such as valuation of marital assets, or problems related to timesharing with your minor children, or could simply have the effect of moving you to the back of the line when normal court functions resume. If you have already started your divorce proceedings, given the current uncertainties with the court system, many hearings will be postponed and delayed. The cases are “continuing” but expect frustrating delays in the scheduling of court hearings, discovery of financial documents, and mediations.
Filing your dissolution of marriage proceeding and moving forward with it is a deeply personal and potentially emotional process. While this process includes economic analysis, it most often can also include many emotional challenges with relationships between extended or blended family members, economic independence, and many other issues.
Note that under Florida law, the date of separation, the date of filing divorce proceedings, or the date of a trial can be the economic dividing point for the acquisition and valuation of marital assets and/or debt. If that date of separation, the date of filing or the date of your trial is moved or delayed for any reason, such as an attempted and failed reconciliation (or the appearance of one), then you could possibly expose yourself to a potential increase and/or decrease in the valuation of marital assets and or marital debt.

If I am in a shared timeshare arrangement and a parent or child tests positive for COVID-19, how should I handle custody and visitation?

Use your common sense, parental instincts, and trust in the other parent; and consider both short-term concerns and long-term effects. Your thought process will be different if the child has a special sensitivity, or anyone in a child or parent’s lifestyle universe has heightened risks associated with COVID-19.
First, the medically recommended quarantine for anyone who has been exposed to the Coronavirus is two weeks. Undoubtedly, there will be exposures that involve parents and children. How do you deal with this? Do what is medically necessary or appropriate: if the child has been exposed to someone who is an identified carrier (in proximity), or worse, has tested positive, above all, follow a doctor’s instructions. If there are outstanding custodial considerations, like the other parent is demanding “my time” with the child, then politely but firmly explain that it is not possible based upon medical advice. Insure that you share all doctors’ appointments with the other parent, and allow him/her to attend. This does not include cases with domestic violence restraining orders that do not provide for such close contact.
For those parents who have realized that we all make sacrifices in the short term for the best interests of our children in the long term, just follow your common sense. If your spouse, former spouse, or the child’s other parent in paternity matters is unfortunately kept away for a short period of time, make it up to him or her when things return to normalcy. The other parent will appreciate it, and so will the child.
Above all, understand that quarantine is for the protection of the child and/or parent, especially if he/she is included in the group of people most adversely affected by COVID-19. The challenge here is that you may not know that a person has a particular medical condition that increases vulnerability.

You are not just thinking about you or the child, you are thinking about all other potentially “at risk” family members such as grandparents, friends and their family members. We all must be socially responsible.

What if I suspect that someone in the other parent’s household is sick?

How would you have reacted to this before the pandemic arose? If you trusted the other parent’s level of responsibility then, why would you not do so now? Do not allow the hysteria associated with COVID-19 to affect and possibly ruin an established and trusted co-parenting relationship. If the other parent or his/her current spouse, or a family member residing with the other parent is coughing up a storm, is complaining of a fever, or there are other indications of sickness, and he/she/they insist that there is nothing wrong, clearly that is an objective basis to have the child remain with the parent not showing such indications of sickness and to request that the other parent, his/her current spouse, or a family member residing with the other parent get tested. Moreover, if someone who has had timesharing with the child is sick or has tested positive to the virus, your child may have already been exposed. Now you should be thinking about protecting grandma and grandpa and other vulnerable and “at risk” individuals. That is where the social responsibility comes into the discussion.

What are some co-parenting guidelines for dealing with unexpected school or daycare closures?

This is challenging. Some parents will look at every word, detail, comma in their existing timesharing agreement to try and gain a tactical advantage for gaining parenting time as though this is a contest. Unfortunately, your child is the one who is going to lose. The way you should be co-parenting is to do what is best for the child based on relative work schedules and susceptibilities of family members.

I have to stay home with my child because the school closed so I am not working or receiving any income. Is it possible to get more child support?

POSSIBLY. The good news is the pending congressional legislation may provide you temporary pay relief because of the closing of schools and daycares. The federal government is stepping in to fill that void which may potentially replace your lost income. Often times that is done through your employer and other sources. If it becomes a long-lasting situation, you lose your job, or your child care becomes unavailable, then you may be able to modify the child support for a commensurate increase in your existing child support. However, you most probably would have a logistical problem. With court closings and the attendant delays, it might take you months to obtain a hearing on your motion for such a modification of child support, temporary or otherwise.

The other parent and I don’t communicate well. What is my best bet for making sure my children are protected from COVID-19 exposure while in the other parent’s care?

Be flexible, cooperative, and informational, and don’t be hostile or accusatory. Remember, the other parent is in this as well and he/she will be in your and your child’s life once this is all over. Avoid interrogating the child about what happens at the other parents’ house. Provide information that you think is helpful, and talk to the co-parent like you would any other family member. Avoid any admonitions about how the other parent needs to conduct himself/herself because that is not going to help the safety of your child and will definitely exacerbate any hostile feelings that may already exist. If you do really believe that your child is at risk, there are co-parenting communication apps such as “Our Family Wizard” that foster healthy co-parenting. The more you help the other parent and work with him/her to get through this, the better off your child will be.

How will the COVID-19 situation affect my case in the courts?

Due to the “stay at home” orders issued by the State of Florida and numerous cities in South Florida, as well as the Florida Supreme Court’s recent Administrative Orders, you should expect substantial delays with pending cases as well as any contemplated new court case filings. This will be the product of possible shut downs, suspensions and/or slowdowns associated with the virus’s spread and/or efforts to contain it. Continuances (postponements) will be readily granted, and hearings will be rescheduled for weeks to months further out. While in some cases, a phone appearance may be allowed, it may not be advisable depending on your case and the nature of the hearing. Make sure you speak with your attorney about the specifics.
New case filings may be slowed down administratively and assignments of such newly-filed cases may also be delayed due to the decreased clerk attendance at the various South Florida courts, in addition to the remote “virtual” involvement of court personnel, including the judges themselves.
You may be able to monitor local websites for news of any court closures and other procedural announcements:

Can I meet with an attorney by phone or teleconference?

YES. If you desire to meet with one of our attorneys in light of the current “stay at home” orders, we are able to coordinate a remote meeting or conduct the meeting over the phone, whichever is best for you. Our offices are, in particular, capable of conducting video teleconferencing using Zoom, FaceTime and Skype, which are all available on Android and Apple mobile devices, and desktop PCs.

Fowler White's Family Law Practice Group is here to assist you with any issues that may arise during this unprecedented time.

Meet the Team

Dino Galardi, Shareholder

Mason Nettleton, Shareholder

Esther Galicia, Appellate

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