I want to maintain social distancing. Can I cancel parenting time due to the virus?
The Oregon State Family Law Advisory Committee (SFLAC) is a 16-member panel of judges and family law professionals. SFLAC recently issued recommendations for parents who share parenting time and/or custody. These recommendations are intended to provide guidance during the COVID-19 pandemic and resulting school closures, and to encourage parents to follow their court-ordered parenting plans as closely as possible.
Specifically, SFLAC believes “doing so will ensure a level of consistency that is in the children’s best interests” while continuing to recognize Oregon’s policy of: assuring minor children have frequent and continuing contact with parents who have shown the ability to act in the children’s best interests; encouraging such parents to share in the rights and responsibilities of raising their children; encouraging parents to develop their own parenting plan and granting them discretion in developing a plan; and considering the best interests of the children and safety of the parties in developing a parenting plan. ORS 107.101.
Absent specific facts that indicate an actual risk to a child (such as someone in the household exhibiting symptoms or being in quarantine), COVID-19 may present an opportunity for parents to come together and create some similar routines between their two homes. Rather than withholding parenting time, parents might work together on how parenting time can be managed safely. To that end, parents can share the rules they have in place in their homes. They should talk about why they have specific rules in place regarding handwashing, social distancing, etc. Parents can discuss how they plan to work through the isolation aspect of Governor Brown’s executive order. This type of dialogue will allow parents to develop a set of rules for their children to be part of both homes.
What can I do if the other party refuses to allow parenting time?
The SFLAC specifically addressed denials of parenting time by stating that COVID-19 is not a reason to deny parenting time. “Unless otherwise ordered by the court, parents are considered fit to care for their children and make decisions regarding the day-to-day aspects of parenting while the children are in their care. This day-to-day care includes following the Oregon Health Authority and your County Public Health directives regarding social distancing and sanitation-related measures (such as frequent handwashing).”
Generally, a party who is being denied parenting time can get into court within 45 days for a hearing on an expedited motion to enforce parenting time. However, the impact of COVID-19 on courts’ availability makes it questionable whether a hearing will, in fact, be held within the 45-day timeline.
The SFLAC’s position on missed parenting time is as follows: “If parenting time is missed due to COVID-19-related issues or government orders, parents are encouraged to work collaboratively to schedule makeup parenting time that promotes their children’s safety and wellbeing. Local courts are strongly encouraged to order makeup parenting time, when appropriate.” An unjustifiable denial of parenting time might be the type of situation where makeup parenting time will be ordered.
The opposing party has to work but I’m home. Can I make them switch custody temporarily?
Absent a court order to the contrary, the most recent custody order and corresponding parenting plan are legally enforceable. That means one parent cannot “make” the other parent switch custody or follow new rules unless there is a specific provision or language in the enforceable order allowing such a change. Moreover, as addressed above, the SFLAC is encouraging parents to continue to follow their court-ordered parenting plans in order to provide stability for children.
I was served with a family law matter before the virus closed the courts. How do I respond and what happens if I do not?
If a party fails to timely respond to a summons or other pleading requiring a response, the other party may apply to the court for an order of default and a judgment by default. In basic terms, the defaulted party “loses” and the party seeking the default can obtain the relief requested in their original pleading. Therefore, it is essential that a party who wants to avoid “losing” files a response even during the COVID-19 pandemic.
A party can file a response in person at the courthouse or online using the state’s forms and packets, which can be found here: https://www.courts.oregon.gov/forms/Pages/default.aspx
. However, it is important to remember that most courts have limited their in-person business hours. Please check the court website for the county with jurisdiction over your matter for details and updates. You can find links to all of Oregon’s circuit courts here: https://www.courts.oregon.gov/courts/Pages/default.aspx
What happens if I am laid off and cannot pay child or spousal support?
If you have been laid off and are unable to pay child support, one option would be to seek a modification of your child support obligation. A party may move to modify child support when there has been a substantial, unanticipated change in circumstances. Requests for modification of child support can be made to the Oregon Child Support Program.
Similarly, a party may move to modify spousal support when there has been a substantial change in circumstances unanticipated at the time the original spousal support award was entered. It follows that if you have lost your job due to COVID-19, you may be able to file a motion with the court asking that spousal support be modified. Requests for a modification of spousal support must be filed with the court rather than the Oregon Child Support Program.
Legal Editor: Adrienne Garcia, March 2020.