On March 6, 2020, Governor Holcomb issued executive order 20-02 formally declaring a public health disaster in Indiana due to the novel Coronavirus (“COVID-19”) outbreak. Since at least that time, parents of divorce who have children or couples who had children out of wedlock began wondering how this impacted physical custody and parenting time. While some parents carried on as normal with their parenting time exchanges, others took the position that the children would remain with them and not be out being exchanged for the duration of the disaster. Judges and lawyers conducted frantic group calls to determine how to manage these cases while courts simultaneously began hearing only emergency matters. As may parents know, it was and still is a free for all. On March 31, 2020, the Chief Justice of the Indiana Supreme Court issued an order covering many of these matters to attempt to bring clarity to disputes and address other matters relating to custody and child support that all parents with custody orders should know. The Chief Justice’s Order is outlined and analyzed in this blog.
First and most important, Chief Justice Rush made clear that existing court orders regarding custody and parenting time shall remain in place during the COVID-19 pandemic and shall be followed. The means, for example, a parent cannot stop parenting time on the premise the children should not be exposed to the outside world and should stay in their home under the Governor’s Stay-at-Home order issued on March 23, 2020. To do so would be contemptuous and could result in being ordered to pay the other party’s legal fees to enforce parenting time to a modification of custody, depending on if this is in the children’s best interests. Further Chief Justice Rush made clear parents are to follow the school calendar as published at the time of the start of the child’s school year. In other words, simply because the schools are closed and the children are at home, this is not to be treated like summer parenting and sharing the time. It is not.
Secondly, for parents who are not litigious relating to parenting time and believe a temporary modification of custody is in the children’s best interests, and such a modification is not prohibited by their existing orders, they may informally agree in writing to temporarily modify their existing custody and parenting time orders. This temporary agreement may be filed with the court, but it is not necessary as long as it is kept by the parties. There are numerous situations one can envision where such a modification might make sense. For example, suppose a doctor is actively treating COVID-19 patients, it may make sense for the doctor to forgo physical parenting time and Facetime with his or her children until the pandemic is under control, with that parenting foregoing parenting time being given additional days in the future.
Third, where a parent does use COVID-19 to thwart parenting time and custody, or other good cause exists, the Chief Justice made clear any party may file an emergency petition with the trial court to modify the existing custody and parenting time order. By now, most courts have implemented emergency procedures to conduct safe emergency hearing through the use of social distancing to telephonic or video court. Thus, the courts are open and safe for litigants and will address emergencies to act in the children’s best interests.
Fourth and finally, many county child support offices are closed or not accepting in-person payments. Clearly, child support is for the needs of the children and needed contemporaneously with payment not after these offices reopen. The Chief Justice made clear all existing court orders for child support payments remain in place and shall be followed. To assist, the Chief Justice noted that child support payments can be made online, by telephone, by mail and at other locations, as described on the Indiana Department of Child Services, Child Support Bureau web site: https://www.in.gov/dcs/3504.htm. Clearly, some parents have lost their jobs because of COVID-19 and are unable to pay support. In this case, the Chief Justice reminded parents they may file an emergency petition to modify child support with the court. A trial court can retroactively modify support back to the date of filing. The key takeaway is if you have lost your job, you should file a child support modification petition. Conversely, if you have maintained your employment, you cannot choose to not pay child support because the child support office is closed.
While we are in uncharted waters, the Chief Justice of the Indiana Supreme Court has provided parents (and judges and lawyers) with custody matters with some significant guidance by this Order of March 31, 2020. This blog was written by attorneys at Dixon & Moseley, P.C. who handle domestic matters of all types throughout the state. This blog is intended to provide general educational information only. It is not intended as legal advice or a solicitation for services. It is an advertisement.