Interesting article in yesterday’s New York Times about parents using the other parent’s occupation [one involving moderate-to-high risk of exposure to COVID-19] to justify emergency relief changing custody or denying visitation. Evidently some family courts are accepting this argument and granting relief on this basis, under their belief that they are protecting children from COVID-19 and their actions are “in the best interests of the children.”

Normally, I would be completely sympathetic to family court judges limiting visitation or changing custody based upon a parent’s high-risk behavior. Here, I find these actions ill-advised–perhaps even despicable. These parents place themselves at risk to help society function (for medical professionals, they risk their own life and health to protect the public health). Folks who are willing to do this should probably get the benefit of the doubt in weighing their desire to maintain a relationship with their children versus the risk of exposing their children to COVID-19. I certainly wouldn’t want parents deciding, as some of these parents did, to not assist in a public health crisis because they risk losing visitation or custody.

I’m not shocked that some attorneys are assisting those parents who want to use COVID-19 as a basis to deny visitation or change custody–I just wouldn’t be that attorney. I wish I could say I was shocked that family court judges are buying this argument, but the problem (one I have often noted) of vesting tremendous equitable powers in a single judge invites this sort of God-like decision making.

A few weeks ago I blogged about visitation denial in the COVID-19 era, as many of my clients had questions on whether they could deny or demand visitation. More than a few South Carolina parents have used this crisis as a justification to deny visitation. That blog was an acknowledgment of my uncertainty and an attempt to predict what factors the family court might consider in addressing contempt allegations once they reopened for business.

On April 6, 2020, our Governor, Henry McMaster, issued Executive Order No. 2020-21, which is better known as his “Stay at Home” order. That order provides specific guidance on this issue. At page 8 of the order in Section E(7), it lists as an “Essential Activity” [meaning it is not subject to travel restrictions] “Traveling as required by law, to include attending any court proceedings and transporting children as required by court order or custody agreement.” Evidently, the Governor considers complying with visitation orders to be an essential activity.

Given this order, I do not see how any South Carolina family court judge could subsequently excuse a parent for denying visitation solely on the basis of this pandemic. Parents who do so, and attorneys who encourage them to do so, are inviting contempt.

Late Friday (April 3, 2020), the South Carolina Supreme Court issued an order that will partially reopen the court system for business while continuing to greatly limit public access to the courthouse. While it does not appear that contested trials will resume during this quarantine period, compared to the March 18, 2020 order this new order greatly expands the matters the family court may permissibly handle. The items in this new order that should be most of interest to South Carolina family law attorneys and litigants are as follows:

Section b(2) authorizes non-jury trials to proceed “ if the parties consent, or the matter involves an emergency or other circumstance warranting immediate resolution.” This section allows for trials to be conducted via remote technology and limits who may appear for in-person trials. In- person hearings will be conducted “[o]nly if a judge determines that the hearing cannot be conducted adequately using remote communication technology and the matter involves an emergency or other circumstance warranting immediate determination.” This order contains a number of technical rules on conducting and preserving testimony for these remote hearings that anyone considering such a hearing should review.

Section b(4) allows motions [including, one assumes, motions for temporary relief] to be addressed without a hearing. “If, upon reviewing a motion, a judge determines that the motion is without merit, the motion may be denied without waiting for any return or other response from the opposing party or parties. In all other situations except those where a motion may be made on an ex parte basis, a ruling shall not be made until the opposing party or parties have had an opportunity to file a return or other response to the motion. A trial judge may elect not to hold a hearing when the judge determines the motion may readily be decided without further input from the lawyers.” If such a hearing is held, it is likely to be conducted via electronic means.

Section c(16) authorizes certification in lieu of affidavit. If a statute, court rule or other provision of law requires an affidavit to be filed in an action, the requirement of an affidavit may be satisfied by a signed certification of the maker stating, “I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment by contempt.” Many family court litigants were having difficulties getting necessary documents notarized. This section allows them to maintain social distancing while executing affidavits and financial declarations.

Section f(2) allows for family court agreements to be approved without a hearing. Typically, the family courts had been approving temporary agreements without hearings via consent orders. The provisions of Section 2(f)(A & B) would appear to require the signature of the attorneys, the guardian ad litem (if there is one) and the parties to approve any general order or temporary order. Past procedure had the court approving such orders without the parties’ signatures if that party was represented and their attorney signed in their stead. This order may impose an additional requirement on the number of signatories before getting such orders approved.

Section f(2)(C) sets the procedure for approving final family court agreements. The Charleston County family court was already waiving the hearing requirement to approve such agreements but this order sets statewide procedures. Both the agreement and the consent order needs to be signed by the attorneys and the parties. There must be an updated financial declaration for each party. If a guardian has been appointed and the agreement involves children, the guardian must submit an affidavit or certification addressing the best interests of the children. Finally, the parties must provide “[w]ritten testimony of all parties in the form of affidavit or certification addressing and answering all questions the Family Court would normally ask the parties on the record.” The list of required information largely tracks the affidavits in lieu of appearance that family court attorneys have long used to get agreements approved when a party cannot attend the final hearing. However attorneys should review Section f(2)(C)(iv) and revise their form affidavits to conform with this order.

Finally, Section f(1) authorizes the family court to grant uncontested divorces without a hearing. This subsection sets forth the requirements to obtain a divorce and includes additional requirements if either party is seeking a name change as part of their divorce.

Still unclear is how to address the constant visitation denials that the pandemic is causing. With very limited access to the family courts, there was little one could do for parents who were being denied visitation. Whether the family courts will address such visitation denials via hearings, whether such hearings will be conducted in-person or remotely, and whether it would require filing a contempt petition to obtain such a hearing, is something only time and experience will demonstrate.

Since the March 18, 2020 order issued, the family courts were not granting divorces and the only hearings taking place involved emergencies–typically child protective services or protection from domestic abuse matters. This April 3, 2020 order sets statewide procedures to approval final agreements and authorizes uncontested divorces. It would appear to allow for more family court motion hearings, including motions for temporary relief. While I don’t see multi-day divorce or custody trials resuming until quarantining ends, and I am uncertain whether the family court will want to conduct hearings involving custody or support issues without hearings, family court attorneys and litigants have numerous options that were not available the previous two weeks.

I’ve never had much tolerance for most of the anti-vaccination parents I encounter practicing child custody law. Not only are their views on vaccinations anti-science and highly selective of discredited research–I see a lot of that these days–but they’ve always struck me as selfish. The public health crisis created by COVID-19 has hardened this view. I will no longer represent parents who demand I advocate anti-vaccine positions for their non- immunocompromised child(ren). Here’s why.

Let’s assume the anti-vaxxer belief is accurate: vaccines are the primary reason 1 in 70 American children have autism spectrum disorders. Even then, refusing to vaccinate children who are not immunocompromised would still be an incredibly selfish act. Parents who do not vaccinate rely upon the herd immunity created by other parents vaccinating their children to protect their own children from contagious diseases that historically used to kill approximately 20% of all children. If no one was vaccinating their children, and 20% of all children were still dying from mumps, measles, polio, whooping cough, and other historically contagious childhood diseases, no rational parent would forgo an alleged 1.4% risk of autism from the vaccines for a 20% risk of death. Vaccine refusal is a luxury created from the herd immunity generated by the vast majority of parents vaccinating their children.

The COVID-19 crisis highlights this issue. I was telling friends and family in late-February that COVID-19 was likely to be the most consequential story of our lifetime. Most thought I was exaggerating (there were 68 diagnosed cases in the United States on February 29th). They all believe me now (at the time I post this, there have been 33,018 diagnosed cases, most businesses in Charleston are shut down, beaches are closed, and the courts are hearing nothing but emergencies through May 1st). With no herd immunity, no vaccine, and no effective treatments, society has been suddenly and radically altered in a manner unprecedented in my lifetime. If and when an effective vaccine is developed, parents will be clamoring for their children to be among the first to receive it.

In the past I have disagreed with the position of my anti-vaxxer clients but have not refused to advocate those positions if the client demanded it. No more. South Carolina Rule of Professional Conduct 1.16(b)(4) allows an attorney to withdraw from representation that the attorney “considers repugnant.” Earlier in my career I refused cases that would have required advocating against gay rights or marriage equality on this basis. This current health crises solidifies my belief that the anti-vaxxer position is repugnant. I urge all family law attorneys who share this belief to stop advocating the anti-vaxxer position.

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.

COVID-19 is the first airborne global pandemic to take place since the development of specialized family courts in the United States. Never before has mandated social distancing interacted with the awesome contempt powers of family court visitation orders. Thus, I am getting numerous questions about complying with visitation orders from custodial parents who are considering refusing to send their children to the other parent or some third-party who has court-ordered visitation. I know my colleagues are getting similar questions.

Any attorney giving definitive advice on this topic is either much wiser or more foolish than I. We really cannot know how the family courts will resolve contempt petitions regarding COVID-19 related denied visitation. Different family court judges, and even appellate panels, may resolve the exact same fact pattern differently. Further, I am never comfortable advising clients to engage in actions that they believe put their children at risk but I am also unwilling to advise clients not to follow valid court orders. Ultimately my clients need to balance their tolerance for the risk of a family court contempt finding against the risk of exposing their children to COVID-19.

However, I have certain opinions on what the family courts will ultimately consider relevant in deciding whether to hold a parent in contempt for denying visitation. This is the advice I am providing all clients who ask these questions.

1) The mere fact that we are in the midst of a pandemic is not a basis to deny visitation.

2) If the custodial parent is denying visitation, put the basis of the denial in writing at the time the decision is made. That way, when that parent needs to defend a contempt petition, the basis for denying visitation will be clear and the client can avoid claims that it was simply a post-hock justification.

3) Offer additional and daily electronic visitation. Many family law attorneys are using zoom to video conference clients and I would suggest it for electronic visitation. It’s a free app and offers greater interactivity than Skype or FaceTime. Allowing such daily/frequent contact may defeat a finding of willfulness or reduce the contempt sanction.

4) If the custodial parent is denying visitation, offer reasonable makeup visitation in writing as part of the communication informing the other parent of the visitation denial. If the COVID-19 related concern is temporary, make the offer of makeup visitation at the time of the denial. If the concern is ongoing (perhaps the other parent works in a nursing home or is an ICU nurse), note that the other parent can have makeup visitation when the crisis passes.

5) If the custodial parent can get the other parent to agree to forgo visitation, preferably in writing, that parent is almost certainly safe from any subsequent contempt proceeding.

6) If the other parent or someone in their household has COVID-19, the custodial parent is almost certainly safe in denying visitation so long as that parent offers makeup visitation when they recover.

7) If the other parent or someone in their household has been exposed to COVID-19, the custodial parent is probably safe in denying visitation so long as that parent offers makeup visitation once the incubation period passes.

8) If the custodial parent simply refuses visitation because that parent believes the other parent is at greater risk of contracting COVID-19 and infecting the child, the custodial parent is on much less safe ground in denying visitation. The factors I think the family court will consider in whether to hold such custodial parents in contempt in are:

a. Did the custodial parent offer reasonable makeup visitation when denying the visitation.

b. Is the custodial parent practicing extreme social distancing for him or herself and the child. If the custodial parent is out and about, and the child is having play dates, I think the court is more likely to hold that parent in contempt.

c. Is the basis of the custodial parent’s denial consistent with that parent’s other actions. If that parent is equally high risk or exposing the child to others of equally high risk, the court is likely to hold that parent in contempt.

d. Has that custodial parent previously been held in contempt for visitation denial. I think the court will be more suspicious of such parents’ justifications.

9) The following is South Carolina specific. The family courts are closed to all but emergencies until at least May 1st. Even if the other parent objects to the denied visitation, the custodial parent still might be able to work out some alternative visitation that satisfies the other parent before he or she files a rule to show cause or gets that rule heard.

10) Something that’s not relevant yet but may become increasingly relevant as the pandemic proceeds is if the child or the other parent has recovered from COVID-19. My understanding is that if the child has recovered from it there may no longer be a health risk from exposure. Thus there would be no justification for visitation denial. Similarly, my understanding is that if the other parent has recovered from COVID-19, that parent no longer poses a risk from exposure (that parent’s other household members still might). Our subsequent knowledge of this virus may prove that recovery from COVID-19 does not eliminate the risk of exposure or transmission so this advice is provisional.

Stay safe.

Given the impact on the new coronavirus on South Carolina businesses, I’ve had more than one client ask me about paying court-ordered support obligations at a time when their income has withered. For clients with the savings to cover a few months worth of these obligations, I tell them to keep paying. For clients who don’t have such savings, I can only inform them that we are in a fluid and (at least for folks who are baby boomers or younger) unprecedented situation.

The legal doctrine of force majeure is typically found in contracts as a provision excusing performance due to an extraordinary event or circumstance beyond the control of the parties. The doctrine has only be cited twice in South Carolina case law, both involving contract disputes. I can find no reported cases anywhere in the United States addressing force majeure as a defense to contempt and only one unreported case, In the Matter of U.S. DOE – Rocky Flats Plant, 1993 WL 854273 (Colo.Haz.Matl.Waste.Mgmt.Div), that even mentions it.

What I assume this means is that case law on this issue is going to start developing throughout the United States some time in the next few years as folks who cannot meet their support obligations employ this doctrine to excuse their non-compliance. While work has slowed for most family law attorneys the past week, the general consensus is that when the quarantine ends business will boom. For family law attorneys who do appellate practice, force majeure claims may be part of that boom. And don’t even ask me to predict how our appellate courts will ultimately resolve this.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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