Family court “emergencies” in the COVID-19 era

Posted Sunday, March 22nd, 2020 by Gregory Forman
Filed under Contempt/Enforcement of Orders, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

In a pair of March 18, 2020 orders, South Carolina Supreme Court Chief Justice Donald W. Beatty cancelled all family court terms of court through May 1, 2020, and limited family court proceedings to “emergency matters.” I hear from other attorneys that, with this knowledge, some parents have begun refusing visitation or refusing to return the child to the custodial parent. Prior to the COVID-19 outbreak, I may have considered such actions to merit emergency relief–especially a refusal to return to the child to the custodial parent. Now, I’m pretty sure these actions don’t require emergency relief.

Litigants need to realize and attorneys need to consider that every court hearing requires attorneys, judges, litigants, necessary witnesses, and court personnel [deputies, bailiffs, court reporters] to gather together in a courtroom. This breech of social distancing requires substantial justification. Addressing the concerns raised when a child is abandoned by her caregiver, a parent incarcerated on a child support bench warrant, a parent abuses opiates with a child in his care, or a juvenile is charged with a violent crime, likely merit this breech. A parent simply refusing to return the child (or refusing visitation), or using marijuana in the child’s presence, likely doesn’t justify putting so many folks at risk of contracting or spreading COVID-19. With COVID-19 causing income loss for many, I suspect soon folks will be out of compliance with support obligations. I doubt failure to receive support merits emergency relief either.

That folks will use this knowledge of limited court access to violate family court orders is unfortunate. I suspect the family courts will ultimately come down very hard on parents or spouses who violated court orders simply because they knew the other party could not access the court system. The future use of criminal contempt sanctions to punish this behavior is completely appropriate.

But the COVID-19 era requires a different understanding of “emergency matters.” When an attorney seeks such emergency relief, that attorney is asking numerous folks to jeopardize their health and the public health to address the dispute. That’s something I’m not willing to do over mere visitation/custodial interference or failure to pay support.

4 thoughts on Family court “emergencies” in the COVID-19 era

  1. Cassandra says:

    Thank you for this posting. Parent(s) lost no time in starting down the road of no compliance.

    It will be interesting to see how the backlog
    will be managed in the courts.

  2. Earl says:

    I suspected the same here locally. With my recently gaining custody of my daughter from the mother….she has quit her job and has not paid support. There should be some form of ongoing enforcement, ie garnishments, license suspensions, warning letters. All this can be done remotely without having the public interact internal to their place of business. I feel like there is a bandwagon of people using this virus to shut down business or operations more for the sake of time off than the concern for the virus itself. Take a look at the list of what is considered essential personnel and the courts should definitely fall within that list if for nothing less than to enforce orders and law in cases where being present is not necessary for violations of orders.

  3. CONRAD L. FALKIEWICZ says:

    Greg,
    A good article. Court orders must be obeyed. However, violations of visitation or return of children (absent an intent to escape the jurisdiction of the Court) are not and should never have been treated as emergencies. I know we disagree on that point somewhat. Unless there is a threat to life or limb, a mental health issue or criminal activity there should never be an emergency. Not getting money is not an emergency. It is cause for reasonable action within the usual scheduling of temporary hearings….but it is not an emergency.

  4. Carolyn says:

    I am sure when the case does get into court the judge will not appreciate hearing that one parent decided to take a public health emergency and capitalize on it to their benefit. That may be an additional factor the court can consider in making and enforcing future custody and visitation orders. it does not show good character and judgment on the part of the parent in looking out for the best interests of the child.

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