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Family Law Issues in a Time of Uncertainty

Given the recent pandemic, all of our lives have been turned upside down. Our DeWitt family law team is working diligently (from home) to try to continue to address your legal needs in a timely manner. All phone calls and emails will be fielded and your questions addressed per normal, just not in person. Mediations and other similar meetings may be done via videoconferencing  or other means if they can be done in a manner that meets our professional responsibilities to get you the best legal outcome while still obeying the restrictions on in-person contact.

Courthouses throughout Wisconsin and Minnesota are drastically reducing and even eliminating all in-person contact, and are in various stages of utilizing alternative means for holding hearings. In some counties, courts are holding certain contested matters via videoconferencing services such as Zoom or phone conferencing. Other counties have completely shut down all hearings that are not deemed “emergency” hearings.  We expect that as we get though this situation, counties will come back in a similar county-by-county determination. If you have a question about an upcoming hearing, please do not hesitate to contact us for an update.

All of our attorneys are fielding questions regarding how to address periods of physical placement in an era where we are required to self-isolate as much as practical. At present, no orders prohibit travel between homes for purposes of following a custody and placement order.   A common question right now is, “Do I have to follow the placement schedule in our court order so our child(ren) goes back and forth between homes?” Like all good lawyers, I will answer that question with, “It depends.”

As an initial matter, listen to your doctors regarding your specific situation, especially if you or your child is ill or is high-risk to develop severe consequences by being exposed to the COVID-19 virus.  While that may mean you make the difficult decision to forego in-person periods of placement for several days to a few weeks, that is infinitely better than putting yourself or your child at risk.  You can enjoy spending time with your children via teleconferencing, FaceTime, or Skype.

The typical calls we are fielding, however, are from parents who believe that the other parent is using this pandemic as an excuse not to follow the placement schedule. If that fits your scenario, we can talk to you about several options to consider. First, we try to determine whether there are legitimate medical concerns that make placement exchanges risky. That may include talking directly to medical providers or getting documents from such providers. If the relevant medical professionals advise there is no additional risk to be had by following the schedule, then we recommend the schedule continue. Children benefit by following routines, even when those routines are altered because schools and daycares are shut down.

If there is no such medical risk and a parent still insists that he or she is not going to turn over the child for placement, we can help. First, if your co-parent has an attorney, we have frequently been able to work out reasonable responses by engaging that attorney. If they are not represented by an attorney, we can call that parent directly to discuss the situation. Not surprisingly, sometimes people take a more reasonable approach when receiving a call from an attorney, whether that be their own attorney or an attorney on your behalf.

If that approach does not work, then we will help you decide your next steps to assist you. In some cases we may recommend filing a motion to enforce placement. While many courts are currently unlikely to hold a hearing on this motion, some courts are doing so via remote technology. However, even if such a motion can’t be heard in the next 2-3 weeks, the motion establishes the right to seek replacement time for placement that has been unreasonably withheld. In fact, some counties are establishing policies that they will order replacement time for all placement missed during this crisis, whether withholding was reasonable (medically-based) or unreasonable.

We are also fielding many calls from people who are worried about financial matters due to job losses, layoffs, reduction of hours or impact to businesses.  The longer the work restrictions continue, the more likely it is that people will be experiencing financial hardships. While we anticipate some financial responses from state and federal governments, those resources are expected to be fairly minimal.  We have also been busy negotiating for financial relief on behalf of our clients for agreements to suspend mortgage payments without penalty or to suspend business loan payments without penalty.  And more specific to family law, we are negotiating temporary reductions of payments such as child support and maintenance.

If you have faced significant income losses that make it difficult or even impossible to pay your current support, we can help through negotiating or if necessary, filing a motion on your behalf.  While we anticipate courts will be less likely to find payers in contempt of court due to income reductions, if your situation is likely to continue for more than 2-3 weeks, we may be able to secure you a longer-term reduction in support. It is important that such motions are filed early, because under almost all circumstances, changes in support orders can only be made retroactive to the date a motion is filed.

Similarly, if your support is based on shared placement and you have lost your job or had a significant income reduction, we may be able to secure a new child support order reflecting your current income versus your past income.

In addition to requests for assistance, we are also hearing amazing stories of cooperation and communication through this difficult time. We stand with our clients, friends and colleagues who are on the front line in addressing the significant health care crisis and look forward to getting back to normal as soon as possible. Please do not hesitate to contact us with any questions or concerns you might have.

About the Author

Michele Perreault is an attorney practicing out of our Madison office. She is a member of the Family Law, Labor & Employment and Litigation practice groups. Contact Michele by email or by phone at (608) 283-5510.

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