AURORA | Navigating a child custody battle amid the pandemic-fueled shift to home schooling, job insecurity and requests to stay inside can make for a troublesome cocktail, attorneys have warned in recent weeks.
Separated parents have been forced to adjust on the fly when it comes to co-parenting in 2020 as courts have largely shuttered and governments have issued sometimes vague mandates to stay at home as much as possible.
The seemingly indefinite closure of schools and other public spaces often used to hand kids from one parent to another has added yet another wrinkle to what can already be an uncomfortable process.
However, healthy Colorado parents are required to keep exchanging custody of their children, attorneys say, as parenting plans are court orders, which are exempted reasons to travel under Gov. Jared Polis’ recent public health order.
“Some parents have been asking, ‘During the stay-at-home orders, are we allowed to just keep the kids?,’” said Christopher Griffiths, shareholder and chief financial officer at Griffiths PC, a family law firm in Lone Tree that handles cases across the greater Aurora region. “And the long story short is ‘no.’”
But if a parent is confirmed to have the virus, the situation quickly gets knottier. Though judicial directions remain somewhat fuzzy, Griffiths said he doesn’t believe a court would require a healthy parent to send a healthy child to a sick parent’s home.
“It would be too dangerous,” he said.
Jason Owens, a family law attorney in Massachusetts who has been penning a series of blogs on the intersection of the virus and family law in recent weeks, said there are shades of gray related to one parent’s certainty their ex-spouse has contracted COVID-19.
“If a parent has persuasive evidence that parenting time creates a measurable risk of transmission – or … may expose the child to containment measures – that parent should bring those concerns to the attention of a judge as soon as possible,” Owens wrote on his site, which was recently featured in The New York Times.
But whether Aurora residents would be able to see a judge in the 17th or 18th Judicial Districts is tenuous at best, according to Griffiths, who largely handles cases in the 18th Judicial District.
That court’s chief judge issued an updated order Tuesday continuing the vast majority of hearings through April 17. The decision also cancels all jury calls scheduled through May 15. A similar order has been issued in the Adams County district court in Aurora’s northern pocket.
“The court is only dealing with emergencies, so some people are being forced to figure it out,” Griffiths said. ” … The biggest thing we’re telling clients is to look for alternative solutions. Clients that were going to go to court are considering settling because the court can’t help.”
He’s suggesting clients pursue video-conference mediation, hearings with private judges or delaying a divorce altogether.
The national divorce rate has gone down in recent years, with recent tallies sitting at 7.7 divorces per 1,000 women over the age of 15, according to the U.S. Census Bureau. The Colorado rate was a point higher, granting the state the 16th highest divorce rate in the country two years ago.
While local courts are still hearing “public safety matters,” including advisements for people in jail, hearings for permanent protection orders and hearings to restrict parenting time, getting a hearing in front of a judge could prove extremely difficult barring extenuating and dangerous circumstances, according to Griffiths.
“What the court system classifies as an emergency and what the average person classifies as an emergency are pretty different,” he said. “To the court, it’s someone holding a gun or having marijuana on the table in front of kids, not ‘We haven’t figured out our summer vacation plans and he or she won’t talk to me.’”
It’s unclear how many petitions for the appointment of an emergency guardian and motions to restrict parenting time have been filed in recent weeks. A court administrator in the 18th Judicial District referred a reporter to the office of the state court administrator. A spokesperson for that office said the data were not immediately available.
One of the most pressing issues among Griffiths’ current clients is a lapse in communication between parents regarding their potential exposure to the virus. Relocating children to a parent outside of the county or the state has also proven problematic.
“It’s happened like three times recently where one party says, ‘I think I’ve got the coronavirus and I’ve got the sniffles,’” Griffiths said. “And then the other party says, ‘OK, well the kids aren’t coming,’ and then the person who says they were sick says, ‘Oh, it’s just the sniffles don’t worry about it,’ and it causes this huge problem.”
Owens said parents who appear nonchalant about the virus could have their words used against them in the future.
“Parents and individuals with dismissive attitudes towards the virus or containment measures such as social distancing probably pose a greater risk to the community than the kind of international travel that was perceived as a greater risk in prior months,” he wrote. “A parent who sends an email or text message sarcastically dismissing the other parent’s coronavirus concerns may see their message come back to bite them in a future custody hearing.”
Griffiths said those future hearings could be months or years down the road due to the delays the virus closures are likely to cause.
“The most important thing for people to know is to get in line,” he said. “The court system is already backlogged … They were setting trials six to nine months out before this happened. They’re probably going to be setting a year out afterward.”