Anyone reading this knows that we are living through one of the most unique and scary times in our nation’s history. With all the uncertainty surrounding this new normal, we have received several questions on how COVID-19 affects several areas of the law. By Order of the Chief Justice of the North Carolina Supreme Court, all court hearings are postponed until June 1, 2020. We will try to address some of the issues that our clients have raised. If you have additional questions, contact our office for a telephone consultation with one of our attorneys to see if we can help with your specific legal issue or concern.
Child Custody Cases
During this time, custody disputes are particularly challenging. In response to the concerns, the North Carolina Judicial branch issued guidance regarding custody cases during the COVID-19 pandemic. Among their recommendations is that custody exchanges should happen as ordered. Absent emergency situations, remote custody mediation or arbitration should be used to resolve conflicts between parents whenever possible. This may seem to make it easy for a parent to ignore a custody order in the short term since contempt hearings can’t be held. Local judges have made it clear that parents who decide to withhold custody without a compelling reason beyond the general spread of COVID-19 will likely be treated quite harshly. A finding of contempt can result in jail time, fines, or other measures deemed appropriate by the court.
It is vitally important for co-parents to communicate effectively either between themselves or with the help of a skilled attorney to navigate the new custody challenges during this time. Communications between you and your co-parent should be in writing or memorialized in writing afterward. Even a quick email or text to confirm the conversation can go a long way if a disagreement arises later. If you have any questions about whether you can or should agree to temporary changes in your arrangement, you should talk to a child custody lawyer for accurate guidance.
Emergency Child Custody Situations
There is one important type of custody case that courts will hear during this time of court closure— emergency custody situations. In order to file a claim, a parent must show that the order is necessary because a minor child is at substantial risk of imminent bodily injury, sexual abuse, or removal from jurisdiction. If the other parent isn’t being safe enough or isn’t following the stay at home order, it would likely not be enough to justify emergency custody. The Judicial Branch guidance indicates that parents should follow CDC Guidelines and confer with healthcare providers if they have questions. Any other incident of imminent risk of bodily injury or sexual abuse (molestation, physical child abuse, neglect, etc.) would still be grounds for an emergency custody order. Despite this exception, any hearing will likely have limited evidence presented, and witness testimony will be presented remotely. As is the case during normal times, any emergency custody order will be subject to a hearing within 10 days of the original order.
Department of Social Services (DSS) Court Case
At any given time in North Carolina, thousands of children are in foster care. Their cases are heard in juvenile abuse, neglect and dependency court. These cases are among the most legally and emotionally difficult cases in normal times, but the onslaught of the pandemic has created unprecedented challenges in this area. A few issues arising during this time are what to do about visitation for parents whose children are in foster care, how to preserve the rights of parents and children to have their cases heard, and how to deal with emergencies:
Visitation during this time is an emotional topic. Foster families want to keep their homes safe and parents desperately want to see their children. To prevent the spread of COVID-19, The Forsyth County Department of Social Services and most privately-run visitation centers are closed. Social workers are arranging electronic visitation between children and parents. Each case is unique and speaking to a lawyer about a specific situation could lead to a telephonic hearing where a judge could consider different or special accommodations.
2.) Having Your Case Heard
The current court closure presents a unique problem for abuse/neglect/dependency cases that often have timelines set by law for various types of hearings. The different players in the court system are working together to reschedule hearings as expeditiously as possible, but there is no way around a backlog. Undoubtedly, some unfortunate delays are going to take place. Speaking to a lawyer about the specifics of your case could assist in protecting your rights to due process and possibly to have accommodations made in the meantime.
3.) Dealing with Emergencies
One of the emergency exceptions to the court closure order is for obtaining custody of a juvenile in DSS Court. These are referred to as “Nonsecure custody hearings.” Since many children are removed based only on the social worker’s side of the story, parents have a right to be heard within seven calendar days of the Petition being filed. Parents have a right to a lawyer at every stage of DSS Court proceedings.
Millions of jobs have been lost due to COVID-19. Many people are experiencing long delays in receiving unemployment and/or government stimulus checks. If you are under an order to pay child support, the order still stands during this time and you could be held in contempt of court for violating the order. If child support is deducted from your paychecks, and your paychecks stop, you are still under an order to pay child support. The best course of action in this situation is to contact a child support attorney. If it applies to you, contact your caseworker through child support enforcement at your county Department of Social Services. Your child support worker is likely being flooded with calls, so be patient but be persistent. Keep a record of the times you tried to call and leave messages when you do call. Local child support enforcement offices have indicated they are going to be willing to work with people suffering the economic consequences of this pandemic, but that requires upfront communication.
If you receive unemployment benefits, those benefits are counted as income. They can also be garnished for child support, but this likely will not begin automatically. This is a conversation you should have with your caseworker or lawyer. If you pay through North Carolina Centralized Collections, you can mail payments to Child Support Centralized Collections, PO Box 900006, Raleigh, NC 27675 or pay online at https://nc.smartchildsupport.com.
Remember that whatever financial hardship you are going through right now is very likely also being experienced by the other parent and, in turn, your children. Our local child support enforcement agency has asked attorneys to relay this message to our clients and to encourage partial payments if entire payments are not possible. Partial payments go a long way in showing a judge that you are not just ignoring his or her order.
COVID-19 is a serious disease that can have very adverse health effects and even cause death in people who have certain underlying medical conditions. The spread of the virus and its effect on virtually every aspect of daily life has people thinking about the potential need for estate or end-of-life planning.
There are three basic documents that should be part of every estate plan and that someone should consider implementing. They are a Will, a Power of Attorney and a Health Care Power of Attorney. Estate planning documents can be as simple or complex as necessary depending on factors such as the nature and value of your assets (your “estate”) and the number and ages of your intended beneficiaries. The documents provide several benefits:
1.) Peace of mind that your estate will be disposed of and distributed according to your wishes and not according to statute
2.) If you become unable to manage your financial or business affairs, a trusted person has the authority to manage those financial and business affairs on your behalf
3.) Your wishes concerning your medical care, terminal illness and/or end of life are clearly memorialized in a way that provides guidance to medical professionals and a trusted person making decisions about your healthcare
Our estate planning lawyers are available to consult with you concerning any aspect of estate or end-of-life planning that you may wish to discuss.
Criminal and traffic cases in both District and Superior courts have been postponed until at least June 1, 2020. If you’ve already been to court, traffic tickets can still be paid at https://www3.nccourts.org/onlinepayments/menu.sp. The public can also sign up for text reminders for rescheduled court dates using that link. The clerk’s office also sends notifications via U.S. Mail. The Order includes retroactive relief for anyone with court fines and fees issued 40 days prior to April 6 by ordering court clerks not to report past-due information to the DMV. It also extends the due date of any fines and fees assigned to people between April 6, 2020 and May 1, 2020 by 90 days.
There are important exceptions to the order postponing court cases. Appearances and bond reduction hearings are still being held for defendants who are in custody. There are also limited sessions of District and Superior Court for people who are in custody and wish to plead guilty. Courts are still hearing emergency matters such as domestic violence protective orders. Jails are particularly vulnerable to the potential spread of COVID-19 due to close quarters and limited sanitation and medical services. If you think a friend or family member might be eligible to be released, a criminal defense attorney might be able to assist with either a bond hearing or a plea arrangement. Although the courts are temporarily shuttered, law enforcement agencies are not. If you are being investigated or are charged with a crime, you will inevitably have legal questions. You should consult with an attorney before giving a statement to the police.
The legal system as it pertains to child custody, child support, estate planning and criminal law is difficult enough during normal times. The COVID-19 pandemic has only made these situations more difficult and complicated. The attorneys at Morrow Porter Vermitsky & Taylor are available to consult with you and help you navigate whatever legal issues you face to achieve the best possible result in this time of uncertainty. Although we can’t do anything about the court closure, we can help you utilize available options, protect your rights and plan for action upon the re-opening.