March 6 was the Emergency Declaration from the Governor.  March 19 was the stay at home order.  In the meantime, since March 15, a record 1.5 million Pennsylvanians have applied for unemployment.  That’s an average of 300,000 per week in contrast to roughly 10,000 a week before the crisis hit.  With the statewide shut down, the local Domestic Relations offices, which manage child and spousal support have also gone to basic staff only, which means the system is working in slow motion.  Early on we checked to see what payors who had lost their jobs could do to file for modification of support based on unemployment or pay reductions. This is important because under prevailing law, you can’t get a modification for a time period when you did not file for one.  Needless to say, the collection system is still functioning, but if you aren’t getting paid or your compensation has been reduced, you need to file for a reduction.  Until you are granted relief, the account will continue to charge monthly as if no change occurred.

The author does not have his own child support account.  But I am told that if a payor goes to the PA Child Support Program website, the first page of the menu will look like this:

I Would Like To…

If you click on Begin/Resume a Request for Support Services, we are told the menu will allow you to file for modification remotely.  Yes, you could file a hard copy petition.  That might even be preferable.  But, when that petition gets accepted and acted upon is a guess at best.  A successful remote filing should create a record of the fact that you acted promptly. In the end, it would not surprise us that courts will “stretch” the law to provide that if you can show the date you were laid off, furloughed or cut back, that will become the retroactive date for a modification.  Nevertheless, that’s taking a chance because the law on the books today says filing is the only relevant date.

Realize a couple of other things as well. Courts in Southeastern Pennsylvania appear to be extending the shutdown to May 31. This means that everything filed since March 18 is going to be backlogged.  In a phone call with the court today, I was advised that a custody conference that would typically take 5-6 weeks to occur from date of filing may now see a delay of 20 weeks.  If 500,000 Pennsylvanians have had their jobs affected (I include wage modifications) and half of those adults have a support obligation that could signal 100,000 or more support modification petitions.  The system is not ready for this kind of volume and bear in mind that criminal court calendars and true emergencies are already stacking up and they will get priority over more routine claims.

The website says that nothing is official until a pleading is accepted by Domestic Relations. Again, that may be technically accurate but suffice to say the more diligent you are in showing your attentiveness to complying with the prevailing law, the more likely your retro-activity will apply.  It is chancy to simply assume that your layoff notice or reduced paycheck will be sufficient by itself.

Another tidbit you may have read about.  The checks from the government now floating into bank accounts are subject to attachment for overdue child support. So you may be getting more OR less than the amount you think.  There has been controversy about this.  In many states any judgment creditor can try to intercept money put into your bank account. In Pennsylvania the law is much more restrictive.  However, if you owe a pile of back child support, don’t be surprised if some or all of your government grant is taken.  In a world where the goal is to get money into the system, many people are outraged by this.  Yet, those people seem to forget that they were effectively borrowing from support payees when the full support was not remitted.  The money is flowing back into the economy.  It just happens to be flowing through to your former spouse’s account instead of to yours.

Pennsylvania has a host of ways to recover delinquent child support ranging from seizure of bank accounts, gambling winnings, personal injury awards, and the sale proceeds of a home, to intercepting tax refunds, suspending professional, occupational, or recreational licenses. The worst or most consistent offenders will also be thrown in jail.

As reported by Jessica Menton of the USA Today, you can now add interception of the CARES Act stimulus check that list.

People who carry child support arrears can expect to have their CARES Act check garnished completely or in part depending on the amount of arrears. Additionally, a spouse of a party owing child support will also have their check garnished if they file their taxes jointly. This is not surprising considering the appropriately high emphasis on collecting child support and consistent with the Commonwealth’s other efforts.

The CARES act check falls under “income” as it is defined under Pennsylvania’s support guidelines in Rule 1910.16-2(a)(8) so not only will it be garnished to pay child support, but it will also be added to an individual’s income available for support (albeit, it may not have material impact on most support orders, particularly since both parties may receive it). More importantly, it may not sufficiently cover the income loss by a payor who finds themselves furloughed, terminated, or receiving a pay cut, so it is important that they try to address their reduced income with the recipient as early as possible.

Under normal circumstances, a party experiencing decreased income could petition to modify support and get relief on a timely basis. However, due to the statewide lock-down, Domestic Relations Offices are not operating as normal and modifications are not readily available.  An alternative is to negotiate a modified support order and have your attorney prepare and a support order retroactive to the income loss. If that can be accomplished, the CARES Act check can be treated similar to a bonus and the parties work out what, if any, support should be exchanged out of it. If that cannot be accomplished, the modification will have to occur once the courts reopen.

However it is handled, understanding one’s expectations can help reduce stress during this time. If someone is relying on the CARES check to help buoy them during this time, they should be aware that they may not get it if they owe support; conversely, if someone is owed support, they know that some extra help is on the way.

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Aaron Weems is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com and on Twitter @AaronWeemsAtty.

It’s not really an important case.  And it’s not a precedential case.  Yet, I couldn’t resist offering a summary because of the names involved.  The legal community has been struggling with the issue of keeping names of parents and children out of case reports.  As we have written, there is policy reason in favor of it.  However, at minimum, it is profoundly awkward.  The April 13, 2020 decision of the Superior Court presents itself as Exhibit “A.”  It’s the ruling in a relocation case; K.W. v. K.W. 1292 WDA 2019.  You’ll never guess which party prevailed, right?

The good news is that this is a heterosexual parenting dispute so we can resort to terms like father and mother.  But, we live in an age where we could easily have same sex parents and a child who might also share the same initials at the parents.

The case involves a relocation dispute over a child approaching age eight (8).  Mother decided that she wanted to relocate from Fayette County, Pennsylvania to North Dakota.  Father responded with a complaint seeking primary physical custody, which incorporated a request to prevent removal of the child (D.W.).  The trial court held three days of hearing over the course of six months.  Before presenting her case for relocation in response to the primary custody complaint, mother upped the ante by marrying the man she was dating in North Dakota.

During the cross examination of mother, she was confronted with an “ultimate issue” question.  “If relocation should be denied, do you intend to move to North Dakota without the child?”  This question itself produces debate among those of us who try custody cases.  Is it a fair question?  Is it technically a relevant question in a world where the declarant is not bound by that testimony? In this case, mother’s reply was the best a witness can provide.  She did not know what she would do and hoped that she did not confront that dilemma.  Not satisfied with that answer, mother amended to say that she would remain in Pennsylvania.

Father also equivocated.  As often happens, his surprise prompted him to file for primary custody but on cross-examination he acknowledged that if relocation was denied a shared physical custody arrangement would be acceptable.

The testimony concluded on July 30, 2019, and the trial court ruled a few days later, denying relocation and awarding shared legal and physical custody.  Mother appealed noting that while the trial court’s order did provide an analysis of the custody factors, it did not present an analysis of the relocation factors under 23 Pa. C.S. 5328(a).

The trial court opinion, took advantage of mother’s revised testimony.  If relocation was denied, mother said she would stay in Pennsylvania.  Thus, the trial court reasoned, until she moved to North Dakota, her testimony had rendered her claim moot.  In an analysis that might be too clever, the trial court noted that mother’s choice to move to North Dakota would not impair father’s ability to exercise his custodial rights, only mother’s.  That would seem to be a twist of the factors under 23 Pa.C.S. 5337.

Mother properly noted that she had expressly filed to relocate and that the “ultimate issue” question of “What would you do if?” should not be treated as abandonment of that otherwise valid request.  Father followed the trial court’s lead indicating that her testimony of willingness to remain in Pennsylvania was a “waiver” of her right to a relocation analysis.

The Superior Court panel reversed, indicating that the equivocation over the response to an adverse ruling was not a basis to avoid the relocation analysis under Section 5337.  Mother’s presentation about a more lucrative North Dakota job offer and an “intact” family with her new husband and his children merited consideration and analysis.  There was also testimony concerning the abilities of North Dakota schools to address the child’s developmental issues.

As noted at the outset, this decision to reverse and remand comes as no surprise.  Nevertheless, the record in this case demonstrates what a difficult set of decisions every trial court faces.  The parents in this case had a child after one year of marriage and separated after six years of marriage when the child was just over five.  Mother met someone new and sought to relocate to be with that person in North Dakota 11 months after separating from the father.  The record is unclear how much time mother and her boyfriend spent together before they married, but it probably did not include much more than summer vacation.  To add to the confusion for a young child, it appears that mother and father may have been living in the same household for more than a year after separation and while this litigation was progressing.  (Opinion p. 2).  There is the prospect (we are told) of a better job in North Dakota and better school resources.  But, how is a trial judge to evaluate that?  We have a child who has ADHD and Asperger’s whose parents are still living together even though mom has just remarried three weeks before the trial ended.

I don’t question either party’s motivations.  We have a mother who testified that her future and her heart are in North Dakota.  But in my own history of these cases, I have often wondered whether a parent is in a rebound rather than a sustainable relationship.  I have wondered whether the job and the schools 1,300 miles away are as represented.  If I am the judge and hearing the relocation, if I grant the request, I have to engage in a leap of faith that all will turn out substantially as represented.  Certainly, there are those cases where the rancor between parents is such that a need for geographical separation is clear.  But the reason why relocations are less and less favored is because the devil you know seems more manageable than the devil you don’t.

These are challenging questions for the most gifted jurist.  The consequence falls upon a child who today is eight and who has lived in uncertain times for at least a third of his or her life.

We’re written about the impact that the coronavirus has had on custody cases and the limited availability of the court’s during this time. A recent story from Florida highlights the impact the virus has on “routine” custody cases where a party is employed as an essential employee and in a high risk environment. In this case, it is an ER doctor in Florida – a “front line” fighter of the virus – whose ex-husband obtained an emergency custody order granting him sole physical custody during the pandemic.

This case exemplifies the tension I described in a previous post between a conservative approach by one parent (Father wishing to limit potential contact to the virus through Mother’s potential exposure in a high risk environment) and the other parent’s approach to recognizing the risk, but taking appropriate precautions (Mother stating he wears personal protection equipment above the standard and being hyper vigilant about her risks).

In the end, there is not a “correct” answer to this issue and Father’s attorney rightfully points out that this case sets no precedence and is limited to the particular circumstances of this case. He also states that Mother will get make-up time for any time she misses and that this action was not designed to be punitive. For her part, Mother understandably feels penalized for simply doing her job and the decision being based on a risk assessment rather than actual exposure. I am sure make-up time means little to her in the short-term when it means not being able to be with her children.

It is possible in these cases for both parties to be “right” and the Court’s decision ultimately being based on how the child’s best interests are served under these facts in this moment in time. This article is an important reminder that cases like this are happening across the country and will continue to do so for the foreseeable future.

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Update:

Since this post was published, the Third Circuit Court of Appeals for Florida stayed the trial court’s order suspending the ER doctor’s custodial time. The doctor can now resume her normal custodial arrangement, though it sounds the parties custody dispute may last longer than the virus.

Experienced family lawyers know that they often become a kind of general counsel to their clients. Family law is in no small measure closely related to contract law. In a state that has seen a shut down order issued for all but essential services, there are many contracts, which have been rendered impractical or frustrated by events.  The legal term for this is taken from the French; “force majeure.”  Clients who paid handsome tuitions and shipped their kids to college in January are watching them trickle back.  Clients with seashore homes on the coast are being told or asked to stay away. Season ticket holders for hockey and basketball are notified that it is “Game off” for the moment.  Many are parties to property settlement agreements that require properties to be sold, refinanced or payments to be made based upon normal conditions. These are scarcely normal conditions.

When is an agreement unenforceable?  There is no easy answer and lawyers are combing through sections of law books that still have bookmarks in them from early 2009 when they were last examined.  Among those cases is Krell v. Henry, decided in 1903 in England.  Henry rented a house on the parade route to be followed by Edward, VII for his coronation.  Unfortunately, the parade was cancelled because Edward developed appendicitis. When Krell sued Henry for the rental fee Henry responded his purpose was frustrated and no rent was due.  The King’s Bench Court ruled that no rent was due as the rental was for a coronation parade that never occurred.

Of course, parties can allocate foreseeable risk in the agreements they form.  Nonetheless, we have not had this kind of pandemic in 100 years.  Today there are Pennsylvania cases which discuss these issues including Greenfield v. Korlea, 380 A.2d 758 (Pa. 1977) and Davis v. Borough of Montrose.  These involve much more foreseeable events, specifically fire and mold.  A similar case involving a frustrated permit to build a dam is found in Hart v. Arnold, 884 A. 2d. 316 (Pa. Super. 2005).  The law in this area is based in large part on the 1981 Restatement (2d) on Contracts.

At Section 261:

 Discharge by Supervening Impracticability Section 261

Where, after a contract is made, a party’s performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption, on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary.

And at Section 265:

Discharge by Supervening Frustration Section 265

Where, after a contract is made, a party’s principal purpose is substantially frustrated without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his remaining duties to render performance are discharged, unless the language or the circumstances indicate the contrary.

The general rule is that courts are chary to set aside agreements where there are less drastic remedies. Nevertheless, remedies are in the eyes of the beholders until a judge decides otherwise and with courts largely closed except for emergent cases, there will be plenty to fight about.

Every business lawyer in America is reviewing his or her local cases interpreting these contract rules.  Family law is contract law and our approach should be the same.

Attorneys are not stock pickers and personal and anecdotal experience informs me that attorneys are not a reliable source of any investment advice.  Nevertheless, we have many clients who have much of their wealth concentrated in just a few stocks and in a highly volatile market that can be a very dangerous thing.  Truth is, that while there are some positive signs that the current pandemic may begin to recede, history has also taught us that this kind of illness can often strike in waves.  Moreover, we don’t really have an assessment of the economic damage done or a clear path to recovery.

The chart above is the year-to-date performance of the Standard & Poor’s 500 Index (S&P 500).  I refer to it because it is much broader, but less well known than the Dow Jones Industrial Index.  You pick your index, but the story here is that after falling off the cliff in early March, stocks have clawed their way back to March 12 levels based on favorable news about hospital admission rates.  The risk here is that the virus infection rate surges a second time or moves on to other places in the U.S.  That may prompt a second sharp decline.

Again, we are not investment advisers, but if you are highly concentrated in one stock, prudence may dictate that you protect yourself from a second cliff fall by being more broadly invested.  Even though it means accepting a lower price for what you do have.  Obviously, all of this is a function of a larger picture.  One thing seems clear; companies with strong cash reserves will weather the storm better than those without.  Some businesses have prospects for a good bounce once a recovery emerges.  Others (e.g., airlines, cruise lines, leisure) are going to have to claw their way back.  The point is that while you are stuck at home, it may be a good time to chat with your financial adviser about how to balance a portfolio.  One thing is clear; our decade long sleigh ride of market increases has ended.

The ruling in C.T. v. A.W.T. is non-precedential but instructive nonetheless.  It’s a relocation decision out of Philadelphia County involving a six-year-old child.  The single sex relationship resulting in the birth of S.T. ended in 2014.  In 2018, the parties reached an agreement giving A.W.T. primary physical and C.T. alternate weekends from Friday to Sunday and every Friday overnight to Saturday.

Seven months after the agreed custody order was entered, A.W.T. filed a proposed relocation plan to move to suburban Richmond, Virginia.  C.T. objected and filed a petition to modify the agreed order.  The facts that were developed at hearing were that A.W.T. worked at Verizon, but also assisted women in home childbirth as a doula.  According to A.W.T., to be an accredited doula in this region required a nursing license.  Virginia did not.  There was also reference to a support network, as it appeared that A.W.T. was from that part of Virginia and her employer had indicated that a transfer to Virginia would be approved.

It appears that during A.W.T.’s presentation the trial court decided to make some inquiries of its own about the motivations behind move, prompting the court to stop the testimony and hold that the proposed reasoning for the move was “invalid.”  Specifically, the court held that the primary motivation was for A.W.T. to be with her fiancée.  No other witnesses were heard and no cross-examination was undertaken before the trial court said it was moving on to C.T.’s modification request.  That portion of the hearing was confined to argument of counsel.  The trial judge did ask the parties specific questions during that argument, but neither part actually testified in connection with the counterclaim except to answer the judge’s questions.

The proceedings ended with C.T. securing custody every weekend from Friday afternoon to Monday morning except for the third weekend, which would be A.W.T.’s.  Picking up on A.W.T.’s request to split summers if relocation was granted, the trial court divided summers without approving a relocation.

No Section 5323 analysis of the custody factors was recited at the conclusion of the hearing or in the trial court Opinion.  So, you can tell there was going to be an appeal.  Basis 1: Incomplete hearing.  Basis 2: Failure to provide the Section 5323 analysis.  You can probably surmise the result.

What makes the ruling interesting is that the Superior Court finds that allegations of a due process violation triggers a plenary and de novo review.  Contrast this with the usual custody standard, which is “the broadest type,” but undertaken with an abuse of discretion standard.  The appellate court does not make independent factual determinations in the typical custody case and can reject trial court conclusions only if there is an error of law or unreasonable findings.  The Court cites S.T. v. R.W.  192 A.3d 1155, 1160 (Pa.Super. 2018).  The signal here is that the failure to permit a complete record invites an appeal based upon a more stringent standard of review.

The next segment of the Opinion is as one would expect, citing A.M.S. v. M.R.C., 70 A.3d 830,836 (Pa.S. 2013) for the proposition that these cases require an explicit analysis of the 10 relocation factors and the 16 child custody factors.

Then the Opinion bumps into what can best be termed a “procedural enigma” created by the statute.  23 Pa.C.S. 5337(g)(1) states that in relocation cases, the courts are to hold an “expedited full hearing” before the relocation occurs.  We know from the Opinion that the notice of relocation was issued in April 2019.  The hearing on all petitions was on August 20, 2019.  The words “expedited” and “full” are inherently problematic.  As we all know, relocations inevitably come with a fuse suggesting that a decision needs to be made before a new school year begins.  In this case, one of the ostensible benefits of the relocation was that the six-year-old child had professed an interest in animal husbandry and that the Virginia elementary school had a farming program.  The trial judge was not impressed with that argument, nor that “need to leave the crime ridden city” argument in favor of bucolic Virginny.

The other subject, which was explored at trial, was the licensing and employment opportunities of a doula in Pennsylvania vs. Virginia and other states (commonwealths, actually).  This was a very important topic, but how is this to be done on an expedited basis in a world where discovery is only available by court order?

The Superior Court notes that in addition to truncating the hearing, many answers to questions were also cut off by the trial judge.  The ultimate ruling on the record was “She doesn’t have to go to Virginia.”  The Court describes the trial court’s approach as haphazard.  The appeals court also explicitly holds that the classic judicial question, “Is there anything else [before I rule]?” is not a basis to argue “waiver” where the proceedings otherwise demonstrate that the question was posed not sincerely, but as a means to telegraph that the record was closing.

The Order was vacated and the case remanded.  However, because the appeal contained no explicit request for re-assignment of the case, the Court ruled it would be remanded to the same Judge they were reversing.  See Com. v. Whitmore, 912 A.2d  827, 834 (Pa. 2006).

Sunday night not only brought us the news of 1,000 deaths in New York but US officials discussing potential death numbers as high as the number killed in the US civil war.  My partner Rhonda Ores from New York posted a brief essay by the trial judge responsible for coordinating custody matters in a state with 60,000 cases. The words come from NY Supreme Court Judge Jeffrey Sunshine.

“How [parents] conduct themselves … during a time of a pandemic crisis, one of which we have never before seen, will shape their relationship with each other as divorced parents in the future, the relationship they have with their children and most importantly the relationship that their children have with them.  As adults, we are all frightened over the events of the past few weeks and the uncertainty of the future.  Through the eyes of a child, their world turned upside down—their school disrupted and social interactions with friends now almost impossible.  One of the only things that should and can bring comfort to a child are parents cooperating.  Not only is it the best interest of the child—the time-honored standard—it is the best interest in their divorce and their relationship to come.  These events will have a lasting impact.  For the last generation, it was the Great Depression and World War II; for my generation, it was the assassination of President Kennedy; for my children it was 9/11; and for the generation of children today, it is the events that now surround us. Let them have fond memories of how parents conducted themselves. If parents do not conduct themselves appropriately and sensibly, their children will remember throughout their lives how they acted and so will the judge deciding the case.  I listen carefully and remember the children who have spoken to me during the hundreds of in-camera interviews I have done in the past 21 years.  I hope over the next few years children will be telling me how positively their parents behaved to make sure they were safe, allowed access by technology if illness or the risks of travel prevented access, and that both of their parents put their differences aside and they did it for me.”

If your clients are not listening to you and think they are not accountable for their conduct, might I suggest you send this to them.

Amen.  Stay well and show your loved ones leadership in this hour of crisis.

As this is written, the bill has not yet passed the House of Representatives, but the CARES Act probably will be law before the week’s end.  The newest federal stimulus package is renowned for the distributions it is scheduled to make to families earning less than $100,000 per year.  That topic has been much reported.  What has secured less notoriety are provisions allowing hardship withdrawals from IRAs and hardship 401(k) loans.  Again, the bill is not final and it is going to involve some regulatory gymnastics by the IRS but here is what is in the offing.

If you are “affected” by the Coronavirus either by being diagnosed with it or you have been laid off, fired or furloughed during this time, keep records of any documents confirming that.  This may even include a notice that your daycare closed requiring you to stay home.  These events may permit you to tap either your IRA for a distribution or your 401(k) for a hardship loan.  Step 1 is what you can do today, which is retain the documents that may qualify you for this special form of taxpayer relief.

An IRA distribution made flat out does little for you from a tax viewpoint.  The withdrawal is still “income” in tax year 2020 but the withdrawal is not going to be subject to the 10% penalty for those under 59.5 years of age.  The legislation also appears to allow you to avoid tax consequence if you repay the distribution or loan within three years.  That’s big and a possible lifeline for distressed families and small business holders.  The limit is $100,000, but even if it is not back in the retirement kitty in three years, the plan is to allow you to report the income over three separate tax years rather than all at once.

What makes this provision so important is that no one is yet certain just how quickly the stimulus checks/deposits will be issued.  It seems fairly certain that no states have the capacity to promptly process and pay 3 million unemployment claims.  Truth is that you may have to reach for the IRA/401(K) remedy before all the regulations are issued in order to keep food on the table or your business alive.  Obviously that does entail some risk that you will pay ordinary income rates (if you do not conform to all the rules-some probably not yet written).  Understand however that these funds are not supplementing income, but substituting for income your employer is not paying you.

One other disadvantage to this plan merits attention.  Sadly, if you take the money out now, you do so at a time when the S&P500 has fallen by 20% since New Year’s Day.  Thus, you may be able to take out only 80 cents on the dollar you put into retirement at the end of December because that’s all your dollar is worth today.  Desperate times require consideration of desperate measures and every captain’s first task is to keep the ship afloat.

“Don’t give up the ship.” Try to talk with both your tax adviser and your retirement plan manager about how best to make use of this life preserver without causing more damage to your long-term financial security.  In the meantime, stay well.

If you are watching the news today, (3/24/20) you have some impression of what New Orleans must have been like in the hours before Hurricane Katrina hit.  The Coronavirus storm is hitting New York City and the lower counties with a fury.  The numbers are rising fast throughout our region as well, although New York is clearly getting the thrust of the storm.  Last evening Pennsylvania’s governor announced that its Southeastern residents are to “shelter in place,” meaning travel should be for essential purposes only.  The Courts essentially closed for all but emergencies last Thursday afternoon and the economic and personal impact are starting to really settle in.  The State Bar Association operates an online service where many lawyers are asking some very good questions to each other based on some very good questions coming from clients.  This is a brief distillation of what’s on that “wire.”

If we are to shelter in place, does my kid stay with me in spite of the custody order?

 The consensus is “No, the custody order is an essential duty” and the schedule is to be maintained.  At least one county (Chester) has officially said that.  I hasten to add my common sense question.  Does this back and forth not risk a lot?  It now seems clear that asymptomatic people (no symptoms) are a pretty effective way of spreading this virus, and children are designed to put their hands everywhere and on everything with no awareness of the risk they create.  So, you are shipping back and forth what may appear to be a very healthy child who is carrying something that could prove deadly for you and others in your household.  In the region where I practice the bulk of proven cases are afflicting people ages 25-60.  They have good chances of recovery, but they are more and more living with people who are older and have considerable risk.  Of course you want to see your kid.  But is that in your kid’s health interest, or yours?  We are now well past the days when this virus was coming from Europe or Asia.  We are now giving it to each other and children living in two households may be a primary vector.  If the two parents can agree that fewer exchanges is healthier, just make certain that is confirmed in some written (electronic) form.

If you have a custody emergency call the Prothonotary in the county where the case is pending and ask about electronic filing.  Some courts are permitting petitions to be faxed or emailed but you are still currently going to have to follow up with a physical copy, pay the fees and arrange for service; done in a building that will be largely closed.  Barring risks of abduction (not simply “retention”) or imminent danger to the child, don’t expect to be welcomed.  We have had people asserting that children are at risk because one of their parents is working in a healthcare facility.  No doubt, that does elevate risk although the precautions taken in those facilities are substantial.  Now take a step back.  Are all healthcare workers to be quarantined from their children so that none are exposed?  Aren’t those members of our society already enduring enough for the rest of us?  We have to trust that if they love their kids, they are doing everything in their power to protect themselves if only to mitigate the risk to their kids.

I have been laid off or told to stay home.  What about my support when I’m not getting paid?

The various Pennsylvania Courts (about 70 of them not including the local magistrate courts) began issuing a myriad of orders beginning in early March.  Unlike county governments, just about all of which have Public health departments, courts don’t have anyone to give them advice about public health issues.  Courts are also supposed to be open every business day and courts also are often called upon to act in the night and on weekends.  So they are reticent to close.  Each county court tried to fashion orders shutting down some activities while leaving other matters pending; including criminal arraignments and bail hearings, protection from abuse matters, mental health emergencies and other matters of “life and liberty,” (in contrast to property).  On March 18, the Supreme Court received a letter from the State Department of Health imploring them to limit judicial activity as much as possible.  The Court acted that same day effectively closing the courts except for emergencies.  In a nutshell, aside from the usual emergencies, a family law emergency is one where a judge MUST act.  That is probably not going to include whether your payments or your child is late.

Under present law, if you lost your job or your check, you are supposed to file a petition for modification.  The laws says your order cannot be reduced for a period for which no petition is on file.  Problem today is that the office that takes those petitions is not open.  The Bar is working on a solution and we have made some administrative agencies aware of this as well. Anyone in the “system” for support knows about the PA Child Support Program.  However, at the time of this writing there is no means to file a modification petition in each county.  Some counties have sophisticated electronic filing systems and it may be possible to file from your computer.  Try your county website and its Domestic Relations Section.  Otherwise, you may want to get your pen and/or computer and prepare something to say what happened to your job and that you need a modification.  This is not a truly satisfactory answer, but realize that these are extraordinary times and all systems are being taxed while working with very small parts of their usual office support.  The Supreme Court may create a retroactive solution because obviously you cannot pay support based on money that does not actually flow in.  Nevertheless, you can still be charged for support unless and until you file to modify.  Don’t forget if you are in this pinch, courtesy and the Rules of Civil Procedure call upon you to notify the other parties affected.  We are also told that some of the more draconian enforcement procedures like bank account seizure are not being implemented at this time.  Our recommendation if you cannot file electronically in your county is to send in the modification request in the form of a petition and to send it by a means of verifiable delivery.  Some county offices are open and timestamping mail received. Others are not.  Have the comfort of proving you sent it to Domestic Relations in the county where the case is pending.

If things are starting to turn violent?

Call the police.  This is an immensely stressful time and people cooped up in the same house often do not behave their best.  Protect yourself.  Understand that leaving the house is not “abandonment,” although you should probably chat with an attorney if you intend to stay away more than a couple days.  The police and the courts are open to deal with physical abuse but realize that law enforcement is being called on to step up and do more.  That may mean you are waiting longer to see the police arrive.  Do not hesitate to step out to a car or a neighbor’s home while waiting for help to arrive.

Uncharted territory calls for uncommon civility.

This echoes some of the sentiments in my partner Aaron Weems’ blog of the other day.  Most of us lived through the 10-days that followed September 11, 2001, when the Country was attacked.  Courts closed as did many other services while we gauged just how immediate and serious the crisis was.  That one passed fairly quickly.  This one is far more insidious because the attacker may well be in our own bodies or those of the people we live with and love the most.  Tonight your child can love you as much on Skype as in person.  He or she has enough angst without a crisis fueled by mom or dad’s anxiety.  Realize that millions of Americans are plagued with the same anxieties, all of which are very real.  Your creditors are also in a jam.  They don’t have 100,000 extra people out there to repossess your car or evict you from your house, and even if they did get possession of all those cars and all those houses or apartments, there are not millions of people waiting around for your house or your vehicle.  We all need to be reasonable with each other.  As I wrote the other day, our ancestors lived with all sorts of plagues.  This is not a plague, but it is deadly serious and calls for all of us to step forward and do the right thing for our own sake and for the sake of those whom we love.