In my practice area, the pandemic has had multiple stages. Let’s hope we’re almost done with them all.
By Traci Capistrant
Family law practitioners—attorneys, mental health professionals and financial folks included—are natural-born fixers. You know the type: the friend who interrupts with multiple ways to “fix the problem” when all you wanted to do was vent. Working in family law is probably its own kind of torture for these folks, because there really are no “fixing the problem” solutions. If one household is now going to live as two, there is going to be frustration, sadness, and financial strain or adjustment all around. Throw in a pandemic and the very definition of “fixing the problem” is turned on its head.
The impact of covid-19 struck us in so many different ways. Businesses were shut down, jobs lost, homes put in jeopardy. Yet some industries and areas of law remained fully engaged and busy. Often the businesses and legal practice areas that thrived were those focused on helping people cope with the strange new world we found ourselves in. The impact on families in transition—either through divorce, separation, or custody and parenting time cases—was not suspended when the world was put on hold. In fact the opposite was true: Family law and its practitioners needed to step up to address rapidly changing issues affecting all families. When the court system shut down for a period of time, this became even more challenging.
First wave: “I lost my job; how do I pay my support obligations?”
In the initial shock over the economic shutdown in March 2020, there was reverberating silence. What did this mean for families who live in two households, often already not on the best of terms? Family law attorneys first heard from their clients when they called in a panic about their inability to meet their spousal maintenance, child support, child care support, or medical support obligations in the face of their lost or reduced employment. A modification of support requires a substantial change in either parties’ financial circumstances.1 A lost job (or reduced hours) typically reflects a substantial change that likely renders appropriate a modification in support obligations. The complexity arose as courts closed their doors and scrambled to figure out how to address existing cases as well as a significant increase in such modification motions.
Thankfully, a surprisingly high number of these cases were resolved by agreement. No one was exempt from anxiety about the impact on their jobs and incomes, so there was newfound acceptance and willingness to negotiate to resolve many of these issues. Parties either reached agreement to temporarily reduce or suspend support obligations or participated in mediation to reach those agreements. In other cases, where no agreement could be reached, the best that an obligor could do was to file a motion to preserve the retroactivity of any subsequent motion to modify that might be granted in the future.2 In those instances, the obligor took the risk of reducing his obligation until he could be heard by the court on the motion to modify. Counsel for parties were advising their clients that the modification would likely be granted, but if that didn’t sway them, the future hearing would address it and determine whether an overpayment or underpayment had been made.
The receipt of government stimulus checks raised another financial point of contention. Separated parents often argued over who should be awarded the funds. Again, in most cases this had to be resolved by agreement, given the limited access to courts. But as courts began to weigh in on the issue, the typical response was to share the check equally if there was an equal parenting time schedule and financial contribution, or on a pro rata basis if one parent’s contact and financial contribution were significantly less.
Second upset: “My co-parent isn’t following covid prevention guidelines; what do I do?”
The first positive covid test in Minnesota was confirmed on March 6, 2020. By March 13, Gov. Walz had declared a peacetime state of emergency.3 Two days later, he announced the temporary closure of all Minnesota K-12 public schools commencing March 18.4 By March 16, all non-essential businesses were closed5 and by March 25 Minnesotans were ordered to “shelter in place.”6 Thus began the shutdown of the world as we knew it. What many hoped would last a few weeks, or a few months at the outside, morphed into a long-term change in the way we live our lives.
People’s reactions to the pandemic varied widely. Some individuals immediately wrapped up as tight as mummies, went nowhere, and saw no one. Others continued to shop, eat out, and in some cases, flout the face mask mandate that was ultimately imposed by Gov. Walz in July.7 As the pandemic raged on, many parents began to challenge each other’s actions and parenting abilities in light of the many restrictions. Clients began asking how to handle matters if the other parent wasn’t complying with the governor’s emergency orders or the CDC guidelines. And of course, many families included parents who were essential workers on the front lines, which added another layer for consideration.
With access to courts limited, resolving these situations required negotiations between parties or counsel, or through mediation. Parents working in front-line jobs often understood the risk that they brought to the child, and by extension, to the other parent and their family. They were frequently willing to self-limit contact until they were less at risk. In other cases, the tug of war proved very hard to handle, with no clear guidance from the courts and no hearings available to address the conflicts. Family law practitioners had to think on their feet and do their best to convince their client to do the right thing under the circumstances. Giving advice was complicated by the fact that frequently there were no existing laws to address what was happening with families. Access to justice was delayed, forcing decisions that were not always popular with both parents—or stalemates not easily broken.
In one case, Mom was strictly following guidelines and sheltering in place. Dad wasn’t accepting the “science” and frequently took the child out on errands with him, including in one instance a visit to a gun shop. The best that could be done was sending a letter asking Dad not to take the child out of the home, though it was understood that it might fall on deaf ears. In another instance, Mom worked out of state and worked in an industry where exposure to covid was a real concern. With travel essentially shut down, either here or in the state she was traveling from, her regular parenting time on weekends couldn’t carry on. Given the breakdown of relationship between the parents, contact between Mom and the child was cut off for several months. It was an untenable situation for Mom, but Dad’s efforts to use her absence and failed parenting time against her are unlikely to be successful when the matter finally gets to court.
Last year my colleagues and I often discussed what we would say to the court by way of explanation for any decisions made during this period of the unknown. One suggested a tongue-in-cheek response: “I’m sorry, your Honor, this was my first pandemic. It was my client’s first pandemic, too. We did what we thought was best until we could get the court’s input.”8 It was purely a situation of “don’t ask for permission, ask for forgiveness.”
One caveat to the “shelter in place” order from the Walz administration helped in those cases where parents were too frightened to leave the home or feared the other parent’s laxity on the rules. Specifically, the order included several exceptions, including the following:
Care of others. Individuals may care for a family member, friend, or pet in another household, and may transport family members, friends, or pets as allowed by this Executive Order, including the transport of children pursuant to existing parenting time schedules or other visitation schedules pertaining to a child in need of protective services (“CHIPS”) proceeding.9 (Emphasis added.)
Given that transporting children for parenting time was consider an acceptable reason to leave one’s shelter, family law practitioners had a basis for telling clients that parenting time was expected to move forward as the court had ordered.
Take three: New times call for new skills, even (or especially) for the children.
There are many new words and phrases in our lexicon as a result of the pandemic. How many of us thought the phrase “you’re muted” would become a fixture of daily interactions? Suddenly we were talking with complete comfort and regularity about “contact tracing,” “PPE,” “flattening the curve,” “social distancing,” “distance learning,” and “Zoom.” For many of us, online meetings were a foreign concept prior to March 2020. As we sit here today more than a year later, most of us have become experts of sorts. But all of this new technology created difficulties and learning curves.
Many clients do not have access to the technology needed to run such programs, especially if they are low-income. There were many first attempts that led to views one does not want to recall, including the insides of clients’ nostrils and ears, attorneys appearing as cats, or parties showing up for court in their “comfy” clothes (or driving cars, or performing surgery). Thankfully, technology adapted quickly, as did most families and their children. Courts made clearer their expectations for court appearances. Clients could generally appear even on their phones, eliminating the need for a computer and high-speed internet. In some instances, computer use was made available to those without access to technology.
But that didn’t solve all the issues associated with another pandemic novelty, distance learning. When schools were shut down on March 15, 2020,10 families scrambled to react, as did teachers and administrators. It touched off all manner of disputes in the family law arena. Issues arose based on which parent could be home, the parents’ respective approaches to learning, and the technology available in both homes. Given the mad dash to distance learning in the spring of 2020, however, the troubles with school-related issues generally didn’t crop up between families just yet. There was too much to figure out and not enough time to determine who was doing it right or better.
That changed as we approached the fall of 2020. The governor’s theoretically temporary order on schools ultimately got extended for the remainder of the 2019-2020 school year. When it was clear that school would not resume in the fall, at least in the public schools,11 the newest pandemic issue arose. Parents differed over distance learning versus in-person learning versus a hybrid of the two. Many private schools remained in-person throughout the pandemic, creating in many families a push to change schools. By the end of the summer, courts were generally back up and running via Zoom or similar conferencing tools, giving families who could not resolve the issue on their own another avenue to pursue.
School choice is a legal custody decision.12 When parents share joint legal custody, a rebuttable presumption in Minnesota,13 they must make that decision together. But a district court can resolve the issue of school choice, consistent with the child’s best interests, when joint legal custodians disagree.14 While outcomes differed, one district court judge commented, “How will these children be able to transition to new schools and make new friends given that the children will all be isolated at home for on-line learning? Currently, they have friends in [their current] schools who they know—this is [a] great benefit to the children that they will not have in the [new school].”
Statistics have shown that some children thrive with distance learning, but most have suffered greatly. “Kids are not used to learning in isolation. In classrooms today, teachers have students learning in groups, discussing lessons, and asking peers for help.”15 Those moments of working alongside a friend or asking a teacher for guidance allow students to feel connected to others, and this sense of belonging influences students’ engagement in class.16 Parents living in separate homes often have different views on how their child is coping. If the perception is that the child is floundering in this new environment, the push for a change is immense.
As with all aspects of the pandemic, we do not yet know the long-term academic or mental impact on children. Most conflicts over school choice during this time have been well-intentioned, but there is no clear direction on what the right answer is. Many of these decisions have been resolved through mediation or the parties’ parenting consultant, with court as the last-ditch stop. In each case, the parents ultimately need to try to make the best choice for their children. In a time of such significant upheaval in all other aspects of their lives, a change in school may be more than the average child can manage.
Likewise, the choice of distance versus in-person learning has to focus on the child’s needs and adaptation to change. Parents are forced to overcome their differences to decide what is best for their children. Nor is this entirely a moot question as the pandemic recedes. From where we sit today, it’s impossible to say whether we may see future waves of covid-19 infection driven by the mutated variants of the virus that have been appearing around the world.
Fourth quarter outcomes
As families have struggled with the many issues facing them and their children during this pandemic, the need for therapeutic intervention has increased. As the need has increased, the availability of providers has decreased, a simple fact of supply and demand. Additionally, it is often very difficult to begin therapy with a child via video conference. Rapport between the therapist and the child needs to be developed before most children will open up. Doing that via teleconference during the pandemic proved even more difficult, while play therapy with younger children became impossible. Likewise, family therapy with multiple players also became more difficult and less readily available. As a result, ongoing mental health challenges and family discord have gone unaddressed.
Communities of color have an even more difficult time accessing these needed resources. “Communities of color typically have reduced access to mental health providers, but these kids need support more than ever right now,” according to Celeste Malone, an associate professor in the school psychology program at Howard University in Washington, D.C. “They are more likely to have parents who are essential workers and experiences of grief and loss because of covid, plus they are seeing persistent police brutality and unrest.”17
All of these concerns led to a significant push to returns to schools in-person, but that change took time. Even the St. Paul and Minneapolis public schools didn’t reopen until 2021. We all share concern over the long-term impact on this generation of children as they have had to navigate so much with few services available to them. The potential for hidden domestic violence has also weighed heavy, especially for those with limited resources and unstable housing.
At this stage of the pandemic, many family disputes revolve around covid vaccinations. Parents can be at odds over whether to receive the vaccine themselves; it is unlikely that any court would order a parent to be vaccinated against their will. If there is a demonstrable danger as a result, a modification of parenting time could ensue if the matter is brought before a court.
The issue of vaccinating children—at least older children—is currently a fresh source of disputes. The Pfizer vaccine was recently approved for children ages 12-15, and many expect covid vaccines to be made available to younger children as early as this fall. Like school choice, medical decisions are a legal custody issue.18 If parties cannot agree, the matter can be submitted to mediation, an appointed parenting consultant, or ultimately the court. Generally speaking, the court will likely follow the recommendations of the medical profession and other health organizations such as the Minnesota Department of Health or the Centers for Disease Control and Prevention (CDC), but this is uncertain territory. The only thing the Minnesota Court of Appeals has made clear on the issue of vaccinations is that the courts must base their review upon the best interest factors.19
Conclusion
The covid-19 pandemic has been a roller coaster of change in countless ways. Our language has changed, along with our eating habits, our connections with others, and our overall comfort in the world. Family law cases are often fraught with distrust and dislike in the first place; when we were unable even to see our neighbors’ and friends’ entire faces behind masks or to get closer than six feet apart, the circumstances lent themselves even more readily to a disconnect with others. This lack of face-to-face contact with attorneys, mediators, therapists, and the judiciary has probably also helped suppress the normal pressure and desire to resolve matters amicably. The challenges to family law clients have been immense, oftentimes with no easy or fast answers.
The pandemic journey is not over, though it appears we will have, at minimum, a comparatively trouble-free summer. Moving forward with families in separate households, or those currently in transition to new situations, will require patience from everyone. It will require open-minded thinking and unique solutions to fit each family.
TRACI CAPISTRANT is an attorney and mediator at Capistrant Van Loh, P.A. and focuses her practice on family law. After 30+ years in practice, easing the process of difficult family transitions is her goal and intention. She also works as a parenting consultant, parenting time expeditor, and an early neutral evaluator.
Notes
1 Minn. Stat. 518A.39, subd. 2.
2 Minn. Stat. 518.39, subd. 2(f) (2018).
3 Executive Order 20-01, 3/13/2020 Governor’s Office.
4 Executive Order 20-02, 3/15/2020 Governor’s Office.
5 Executive Order 20-04, 3.16.2020 Governor’s Office.
6 Executive Order 20-20, 3/25/2020 Governor’s Office.
7 Executive Order 20-82, 7/22/2020 Governor’s Office.
8 Credit for this brilliant statement goes to Jenna C. Westby, LEGALnudge.
9 Supra note 6.
10 Supra note 4.
11 Executive Order 20-82, 7/30/2020 Governor’s Office (Authorizing and Directing the Commissioner of Education to Require School Districts and Charter Schools to Provide a Safe and Effective Learning Environment for Minnesota’s Students during the 2020-21 School Year).
12 Minn. Stat. 518.003, Subd. 3(a) and (b) (2008).
13 Minn. Stat. 518.17, Subd. 1(b)(9)(2015).
14 See Novak v. Novak, 446 N.W.2d 422, 424 (Minn. Ct. App.1989).
15 “Zoom school’s mental health toll on kids: Academic and social development are likely to slip during online learning for many students.” APA News, by Heather Stringer, 10/13/2020. https://www.apa.org/news/apa/2020/10/online-learning-mental-health
16 Id.
17 Id.
18 Minn. Stat. 518.003, Subd. 3(a) and (b) (2008).
19 Nieber v. Rebekah Kali Nieber, Court of Appeals of Minnesota, 4/19/2021, Filed A20-0616.