How the COVID-19 Crisis is Complicating Colorado Divorce and Custody Issues

by Law Week Contributor

By Rachel Catt
LAW OFFICE OF RACHEL CATT

With stay-at-home orders to navigate and many professionals working from home, it is understandable that tensions in households may be rising. For couples with relationship difficulties, prolonged close quarters can push a marriage over the edge. Those who had begun divorce proceedings prior to the coronavirus crisis may be stuck in limbo as separation becomes difficult or even impossible, and paperwork is stalled in the system.

Family law has always been complicated and deeply personal, but with the limitations imposed by the pandemic, the process of seeking a divorce or determining custody has become even more difficult to navigate.

Rising Divorce Rates in the Face of the Pandemic

Divorce rates for first marriages have generally held around 40%, but with shelter-in-place orders keeping couples close together, marriages are under heavy pressure. Loss of work, financial stressors, and the anxieties of the public crisis have already taken their toll on marriages in China. Since March, the country has been reporting surges in divorce filings and a worrisome spike in incidents of domestic violence.

Family law attorneys in the U.S. have taken notice and are predicting a similar rise in later 2020. Relationships are fragile, and, as much as a crisis may bring some partners together, it all too often splits couples apart.

Filing Delays

Divorce has never been a fast process. Some states require a separation period of a year or more before divorce proceedings can move forward. In the least restrictive states, most couples can expect to go through at least six months’ worth of legal proceedings before the divorce is finalized.

Prior to the pandemic, accessing a family law judge could take eight to 10 weeks. Post-pandemic, parties can expect delays of three or more months, and unless the welfare of a child is at risk or domestic abuse is involved, it may be far more efficient to avoid going before a judge.

While some couples can file online, some states only permit in-person filings. The expense involved with obtaining a divorce may also deter couples from seeking a divorce until their financial future is more secure. This may result in a rush in filings once life has regained a sense of normalcy. Attorneys may find themselves overwhelmed in the surge, leading to delays and a need for legal triage on different cases.

Custody Questions

For parents involved in custody disputes, the pandemic has likely only complicated existing or pending agreements. As always, child custody hinges on the best interest of the child, but with family law, best interest can be cloudy. It is difficult for a parent to stay objective about their children’s welfare when it comes to relinquishing visitation rights. Stay-at-home orders are not in and of themselves justification for denying visitation or disobeying custody agreements, but they are an important consideration for parents with joint custody.

For children with high-risk health conditions, it may be necessary to seek an amended custody agreement if one parent refuses to respect the health worries of another. Further, the financial strain of COVID-19 may make it difficult for parents to afford travel costs or provide for their child, and emergency filings can easily be weaponized against essential workers and parents without the resources to fight for custody and without the ability to stay home from full-time work.

If possible, parents should seek a compromise that serves their child’s best interest. However, the mental and physical health needs of children may not align, leaving children either physically at risk or emotionally isolated from loving parents. Deciding upon a temporary change in visitation or arranging for virtual visitation can be a positive way of maintaining contact and relationships without exposing vulnerable children to the virus. Future agreements may be written with pandemics in mind, incorporating conditional ‘pandemic clauses’ in case of another outbreak.

Pandemic Solutions for Colorado Family Law Cases

With courts stuck in place and in-person meetings out of the question, mediation must adapt to the needs and resources available to them. Alternative Dispute Resolution (ADR) is an effective form of negotiating legal disagreements, and it is possible to conduct virtually.

For divorce proceedings, ADR consists of mediation and arbitration. Mediation is a more informal process, in which a neutral party sits in on a discussion and facilitates communication between the two spouses. Video conferencing technology can fill the gap during the pandemic, and new developments in technology make it possible to set up a “suite” of rooms so that the neutral can separate the parties and talk to them individually, just as they do in person.

Arbitration brings in a third party to make a decision on the case. For cases at a stand-still, teleconferencing is a viable option. Neutrals and arbitrators are being trained to use technology to present cases and review evidence in order to hold effective virtual arbitrations.

Attorneys and couples alike should be prepared to adapt and think outside the box in the months to come. Creativity and flexibility will be vital to a smooth learning curve.

— Rachel Catt is an attorney with expertise in complex family law and LGBTQ family matters.