Coronavirus, COVID-19, Stay in Place Orders, Social Distancing, and the Emerging Family Law Issues being Raised by the Pandemic

Governor Phil Murphy on March 21, 2020, signed Executive Order No. 107, directing all residents to stay at home until further notice to mitigate the impact of Coronavirus, COVID-19 and protect the capacity of New Jersey’s health care system.

“We know the virus spreads through person-to person contact, and the best way to prevent further exposure is to limit our public interactions to only the most essential purposes. This is a time for us all to come together in one mission to ‘flatten the curve’ and slow – and eventually halt – the spread of coronavirus.”

To strengthen the existing social distancing measures in place, the order also prohibits all gatherings of individuals, such as parties, celebrations, or other social events, unless otherwise authorized by the Order. When in public, individuals must practice social distancing and stay at least six feet apart whenever possible, excluding immediate family members, caretakers, household members, or romantic partners.

Governor Murphy’s Executive Order further directs the closure of all non-essential retail businesses to the public.  In addition, the Order continues existing bans on recreational and entertainment businesses, requirements that all restaurants operate by delivery and takeout only, and the directive that all pre-K, elementary, and secondary schools close and all institutions of higher education cease in-person instruction.

Regardless of Executive Order 107, the threat of contracting Coronavirus, COVID-19, social distancing and directives against entertainment, gatherings, parties and celebrations, what if your co-parent has decided that Coronavirus is overblown and exaggerated and that he or she will continue to gather, party, recreate with your child(ren) and others during parenting time?  This raises interesting questions, many of which must be dealt with on a case-by-case basis, based on the facts and daily developments regarding the pandemic of COVID-19 and governmental directives and orders.

Likewise, Governor Murphy’s Order restricted the opening of non-essential businesses.  The Order specifically prohibits the following, including but not limited to casinos, gyms, entertainment venues, retail shopping establishments and hair salons, nail salons and other personal care services.  The list is specific as follows:

All recreational and entertainment businesses, including but not limited to the following list, must close to the public as long as this Order remains in effect.

 a.        Casino gaming floors, including retail sports wagering lounges, and casino concert and entertainment venues. Online and mobile sports and casino gaming services may continue to be offered notwithstanding the closure of the physical facility.

 b.        Racetracks, including stabling facilities and retail sports wagering lounges. Mobile sports wagering services may continue to be offered notwithstanding the closure of the physical facility.

c.         Gyms and fitness centers and classes.

d.         Entertainment centers, including but not limited to, movie theaters, performing arts centers, other concert venues, and nightclubs.

e.         All indoor portions of retail shopping malls. Restaurants and other stores located within  shopping malls that have their own external entrances open to the public, separate from the general mall entrance, may remain open pursuant to the terms and directives of this Order for operating hours and takeout or food delivery services. All entrances and exits to the common area portions of retail shopping malls must remain closed.

f.          All places of public amusement, whether indoors or outdoors, including but not limited to, locations with amusement parks, water parks, aquariums, zoos, arcades, fairs, children’s play centers, funplexes, theme parks, bowling alleys, family and children’s attractions.

g.         Facilities where personal care services are performed that, by their very nature, result in noncompliance with social distancing guidelines, including but not limited to cosmetology shops; barber shops; beauty salons; hair braiding shops; nail salons; electrology facilities; spas, including day spas and medical spas, at which solely elective and cosmetic medical procedures are performed; massage parlors, tanning salons, tattoo parlors, and public and private social clubs, whether or not they serve alcohol, including but not limited to facilities owned or operated by the American Legion, Veterans of Foreign Wars, Knights of Columbus, and any other social clubs associated with community service organizations. This excludes any health facilities that provide medically necessary or therapeutic services.

h.         All municipal, county, and State public libraries, and all libraries and computer labs at public and private colleges and universities.

So you work as a hairstylist, barber, gym owner or physical trainer and you are out of work temporarily – how does this affect your support obligations?  How will work stoppage and the financial implications affect you and your child and spousal support?

The answer to most of these questions is that this is a temporary change of circumstances, but a change that should be addressed.  Below are several of the immediate family law issues that are being triggered by the Coronavirus, COVID-19 pandemic and New Jersey’s responsive measures, and the national directives of social distancing and stay home directives.

1. Will the New Jersey court system shut down due to COVID-19?

Not likely. Discovery deadlines and filing deadlines have been relaxed by the Supreme Court of New Jersey.   Trials and hearings are being adjourned until later dates to avoid in-person court appearances and are now limited to emergent applications. Divorce and child custody actions will remain active and the courts will not dismiss cases. In some circumstances, the courts will hear cases through remote connections such as video and telephone.  These orders and protocols change daily.  The short of it is that some issues that are not emergent will be delayed or adjourned until the safety issues are better controlled and understood and upon further directives of the Governor and State Supreme Court, but the courts remain open to those that need immediate action.

2. Can I refuse to allow the children to go to the other parent’s home during the state of emergency?

Existing orders and decrees do not change during times of emergency, unless there is a specific provision to that effect.   In hardly any case does such a provision exist in a Marital Settlement or Custody and Parenting Time Agreement.  Those provisions may become common in the future. That said, orders and agreements usually contain language that states exactly when a parent has the children and when the parent does not have the children. The language may also specify what happens when school is closed. These orders and agreements should serve as your baseline guide for all questions. If you do not understand the language or think the wording is vague, you should contact an attorney.  In addition, if there is some other troubling issue, such as the other parent has contracted the virus, or is not adhering to safety measures and governmental directives or guidelines, you may consider filing an Order to Show Cause, emergent application to address the safety issues.

3. Restricting child travel during the pandemic

Existing orders and agreements contain specific provisions regarding travel, which will be controlling, absent some exigent circumstance. If your spouse seeks to take the children out of state, out of the country, or to a dangerous area where the Coronavirus is pervasive, judicial intervention is likely your only recourse. You may need to determine if an emergency application to restrict the children’s movement by the other parent is needed for their protection.  Please note, however, that a court may be reluctant to limit the joint custodian’s decision-making and to limit travel.  It also has to do with timing; an application that would have failed a week ago may prevail today given recent Executive Orders in New York, Pennsylvania and New Jersey.

4. Homeschooling and staying home from school during the coronavirus pandemic

Children are transitioning between households for parenting time all while schools are closed and lessons are being taught online.  Each parent has a duty to assure all school assignments are being completed so there is consistency in learning and the children do not fall behind in their school work. If a parent finds this is not occurring, this must be dealt with swiftly so that the child does not lose valuable time from schoolwork.

5. Coronavirus has caused a lay-off, business closure, or loss of income and you can’t pay child or spousal support

You must  follow all court orders and agreements at the moment. In New Jersey this is a basis to vacate, terminate, suspend, and/or modify certain support agreements based on a significant, permanent change in circumstances.  Courts will not modify or suspend support based on a perceived temporary change of circumstances.  What should you do?  You should immediately notify your spouse or former spouse of the issue.  You should at a minimum seek some level of consent or agreement to pay a reduced amount.  You should not unilaterally stop paying.

6. Choice of hospital and choice of medical care

Who has primary physical care?  Is the physical custody shared equally?  You should already, in the interest of co-parenting, discuss this with the other parent and get it in writing.  Having said that, if a court had to decide the issue it would likely be based on the network of pediatricians and specialists your child(ren) have been routinely seeing and the hospital where those physicians have privileges. 

The decisions regarding the child’s care become more difficult.  For instance, one parent wants to enroll the child in a clinical study or trial and the other does not.  One parent wants testing and the other does not.  These issues would have to be addressed by a judge.  The court would look to the best interests of the child regarding the child’s health, safety and welfare in making the decision.

So please stay safe and healthy until this situation resolves.  There are likely numerous other family-related issues that will develop in the coming days as this process continues to evolve.

Please visit Riker Danzig’s COVID-19 Resource Center to stay up to date on all related legal issues.