We have heard a lot of talk about what’s been going on with contracts, leases, force majeure, and business loans. All important issues, but we want to make sure we do not forget to talk about the non-business side of COVID’s effects – how it has affected families, couples, and roommates, who have been forced to be confined together by the STAY HOME—SAVE LIVES directive in place in New York right now.
Not too much elbow room here in the city these days.
We have always handled cases involving domestic violence, child support, and custody cases. They have always been treated very seriously, because most of the time, not always, but most of the time children are involved.
Two days after Gov. Cuomo issued Executive Order 202.8, what the media have called “New York State on PAUSE,” which shut down all non-essential businesses, the New York courts shut down for everything except for emergencies.
This has greatly impacted family legal matters from child support to custody to domestic violence.
The biological parents are separated and the parent who does not live with the child, the non-custodial parent, pays child support, which is set by the court. That child support has to be paid in full at the same time every month…no excuses.
There's a bad break up and the biological parents hate each other. The parent who pays the child support always pays on time. If the deadline is approaching and the money has not been received by the parent who lives with the child, a nasty text follows warning that if the payment is one day late they are going to court.
If the payment is late, can the parent run to court and file papers asking the judge to hold the late-paying parent in contempt of court?
Absolutely. Of course, if the payment is received a few days late, the tardy parent is not going to be punished. But they wil have to take time off from work and appear in court and they might want an attorney with them and so now they also have to pay for their attorney. Things like that always happen in Family Court.
But what if the paying parent is injured or becomes sick or they lose their job? And they even send a text to the parent who has custody of their child? But the parent does not respond. One month goes by. Two months go by. No child support is paid.
One day, there is a knock on the door of the out-of–work parent and it’s the City Sheriff serving them with papers ordering them to appear in family court because they are in contempt of a court order to pay child support.
By the time they have to appear in court, three months have gone by and they still have not been able to make payments for child support. They go to court and try to explain to the judge that they lost their job and they could not find work and, “Judge, here’s the proof of all the places I tried to get a job and here is my application for food stamps, and….
But the Judge just looks at them and asks, “Did you file a petition for a downward modification?”
“A downward what, Judge? No, I didn’t. I didn’t know how, and if I can’t pay money for my kid, how am I supposed to afford a lawyer, Judge?”
The Judge looks at the parent with no expression and tells the parent that they are entering a judgment for arrears from the time they stopped paying, up to the day of that hearing. And then they are advised to go to the clerk’s office and fill out a form for what is called a downward modification of the child support order. The date that document is filed, that stops the arrears from adding up.
So, as soon as the paying parent lost their job or got sick, the first thing that they should have done or arranged for was a petition for a downward modification so that the receiving parent could not get them in trouble.
In normal times, pre-COVID, that is the option available to someone who lost their job. But what about now?
There was no court to run to after March 22. There was no petition clerk on duty at the family court – and there still isn’t. Meanwhile, unemployment rates and unemployment insurance claims soared to ridiculous levels.
Even though things are starting to loosen up, on April 8, 2020, individual judges in the courts throughout the state to begin addressing the following matters remotely:
- Conferencing pending cases
- Deciding fully submitted motions
- Addressing discovery disputes and other similar matters “not requiring the filing of papers"
BUT: No new nonessential matters may be filed until further notice
Child support petitions, including downward modification petitions and initial support petitions, are not listed as “essential.”
So, if parents are not able to file a support modification petition, they will be denied retroactive relief to the date of the basis for filing of the petition.
You might ask, “Can’t the courts take into consideration that the courts were closed?
While Governor Cuomo has issued more than 20 executive orders from March 7, 2020 to date, each addressing various COVID-19 legal anomalies and modifying or suspending various state laws, no order has been issued to afford relief to New Yorkers impacted by the example I just gave to you.
Under the laws as they stand now, courts are without authority to alter child support obligations in these circumstances.
How are we handling this problem?
- First we attempt to appeal to reason and decency of the opposing attorney or the parent receiving the payments.
- If that fails, we prepare the legal papers that have to be filed even though we cannot file them yet. But we do formally serve it on the other party and their lawyer to place them on notice of what we are asking the court to do. In the model I gave to you earlier, to inform the court that the payments that we have been making can not be paid because of extraordinary circumstances, which there is no doubt that COVID-19 is extraordinary causing extraordinary circumstances.
- The first day court allows us to file the petition, we file it.
The papers have to include a formal financial disclosure affidavit with documentation evidencing the job loss and/or receipt of unemployment benefits, as well as a listing of all job search efforts.
We ask our clients to keep track of any online applications for jobs and to create a log of all contacts that they made for in their job search.
We also recommend that if they can, that they pay something rather than nothing to show the court that they were not just trying to take advantage of the circumstances.
But doing nothing is just about the worst thing that anyone can do in this type of situation.
In these circumstances, is it unreasonable for a parent to prevent the child from leaving their home to visit with the non-custodial parent?
Usually the remedy is to run to family court and file a petition for the violation of a visitation order or a custody order.
Again, the clients have to be reminded that although this may be an emergency for you, it is not an emergency in the eyes of the courts or the governor. So, we strongly encourage a civil dialogue and try to create compromises – more tele-meeting time, bargain for more vacation time, something.
And if that fails, just like with the child support, we prepare a petition and serve it on the other parent and wait for the courts to come out of its coma. For now, that is the only thing you can do.
One thing to keep in mind is that if the child support, custody or visitation orders are from a Divorce that was in the Supreme Court, you can file a motion now, electronically, for relief.
Because of the forced close quarters we are seeing an exponential increase in complaints about domestic violence. Thankfully, these kinds of cases are treated as essential cases in family court.
- New child protective petitions are accepted Monday thru Friday, 9:00 a.m. to 2:00 p.m.
- Newly filed child protective petitions received after 2:00 p.m. will be heard the next morning at 9:00 a.m.
- Family Offense petitions are accepted Monday through Friday, 9:00 a.m. to 4:00 p.m.
For additional information, anyone may contact the New York City Family Court by email at NYFCInquiry@nycourts.gov or by telephone at 646-386-5299.
If you or someone you know is a victim of domestic violence, in an emergency call 911. Then call the family court hotline: 646-386-5299
If you have any questions or are unclear, feel free to call us for guidance: 212-213-8511.