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Covid-19 Case Study – Emergency Ex-Parte Order of Custody

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Covid-19 Case Study – Emergency Ex-Parte Order of Custody

I was in court this past Friday, April 3, 2020, defending against an emergency ex-parte order that the Court issued about a week prior.  The claim, made by my client’s ex-wife, was that the children were safer in her home than my client’s home and the shared custody arrangement should be suspended during the Covid-19 Stay Home, Stay Safe period. The main basis of this claim was that my client and her new spouse worked outside the home while she and her new spouse did not.  The applicant’s spouse and one of the children have asthma and the possible exposure was, she claimed, an unreasonable risk.  My client actually was working from home.  Her spouse did work at a retail store, but took precautions when out and upon returning home.

Upon arriving at court I was told no one could enter the courthouse.  I was instructed to call the Family Service Office.  After giving my name and case number I had to wait for a call back.  Forty-five minutes later, I received a call from Family Services who reviewed the facts of the case with me and asked for my client’s response to the application/temporary order.  They also spoke by phone with the applicant.  Another twenty minutes passed and I was called again and told no agreement could be reached and that the judge would be taking the bench around 11:00 AM to hear cases.  At that point, we entered the courthouse.  The marshals were very strict about keeping everyone apart from each other and themselves.  At the appointed time, the courtroom closest to the entryway on the first floor was open and one by one, spaced out, we all entered.  It looked to be about four different cases proceeding, each with one to two people, on average.  The courtroom is very large and there was plenty of room to spread out.  I had a witness that had to remain in her car.  I had some documents I wanted to enter into evidence and was not sure how the court was going to handle that.  Then the Court took the bench and our case was called.

No one took the stand, as is the usual custom.  All testimony was informal and taken from the tables.  The chairs at the tables were removed so everyone addressing the Court had to remain standing.  The Judge asked all of the questions and directed the proceedings. I was allowed to refer to my documents which were offered, but not accepted.  The pace was quick but not rushed.

The judge denied the emergency motion to modify custody.  The judge acknowledged that these are stressful times but that no emergency existed.  The judge made it clear that she was not going to fault people for working and that alone was not a basis for taking away custody of one’s children.  She noted that people leave their houses for food and other necessities and even to come to court, such as for this motion.  She did not agree that was an unreasonable risk as long as people are taking reasonable precautions.

Most importantly, she stressed that, “we are all in this together,” and that “maintaining consistency and a sense of normalcy was the best thing for these children – all children- at this time.”  She encouraged the parents to work together.  It was her opinion that “this” (the motion and the hearing) was the last thing the children needed. 

Obviously this is one case and one judge’s opinion.  Reasonable minds can differ and perhaps another judge would have ruled differently.  If someone is working in the medical field or is otherwise directly exposed to the illness, that would be a different consideration.  If there are older people or sick people in a home, that might warrant a different approach.

I think the take-away is that parents need to do their best to work things out.  Unless there is a true emergency, litigation is not the best route.  It may seem the fastest and easiest way to resolution but the courts are not in the best position to address most concerns right now.  Court rulings rarely address the underlying problems that cause on-going parental conflict anyway.  Counseling and mediation are designed to address the underlying problems and keep parents away from the cycle of litigation.  It’s not easy and not fast.  Nothing worth anything rarely is.

Mediators can give you guidance and help you resolve legal issues outside of the courtroom.  They facilitate the conversations.  They provide a level playing field by keeping everyone in check.  They make sure both parties have a voice.  They keep parties on topic and solution-driven.  Counselors also facilitate conversations, but they often focus more on the relationship dynamics and any personal challenges the parties have.  Their work often compliments that of the mediator.  Parties that obtain individual support and relationship help are in a better position to have successful mediations.  They get the full benefit of mediation by being able to fully participate and be engaged in the business of working through their legal issues with the other parent. 

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