• Elizabeth Han

Custody Issues During the Covid-19 Crisis

A Letter from the Family Law Judges at the First Judicial District Court


Dear Attorneys and Parents,

During the Public Health Emergency we have been faced with decisions that have no precedent or case law for guidance. Court resources have been stretched thin and our staff is mostly teleworking and endeavoring to overcome daily technical challenges. We appreciate your efforts to resolve disputes without court hearing, even if only on a temporary basis. It is critical to preserve the court’s time and resources for issues immediately impacting the health and safety of adults and children in our community.

Below are some of the guidelines we have implemented for custody cases. These provisions are not binding on the Court and may be modified based upon individual circumstances in different cases. We ask for your patience and constructive suggestions during these difficult times.

During the COVID-19 pandemic, parents are encouraged to follow the existing parenting plan as closely as possible which will ensure a level of consistency and stability, for the parents and for the children.

Parents are expected to follow all federal, state, and local directives regarding social distancing and safety related measures. Parents are expected to assist the children in home based distance learning education implemented by the children’s schools.

The spread of COVID-19, in and of itself, is not a reason to deny custodial time or visits. Unless otherwise ordered by the court, parents are considered fit to care for their children and to make decisions regarding the day to day aspects of parenting while the children are in their care. This includes following all federal state and local health directive regarding travel, social distancing, and school distance learning.

Parents are required to comply with existing custody orders unless modified by agreement of the parties or by court order.

Social Distancing and stay at home government directives will not disrupt the parenting schedule currently in place. Parents being on the road for the purpose of transporting children under a parenting plan does not violate Governor Michelle Lujan Grisham‘s stay at home orders.

First responders, including law enforcement officers, must remain available for true emergencies. You are not to contact them for parenting related disputes unless you are experiencing domestic violence or you or your child’s immediate health and safety are at risk.

Parents shall familiarize themselves with the NM guidelines with regard to COVID-19 and shall communicate with each other on a weekly basis about precautions they are taking to ensure the child’s safety during the public health emergency. If there is an active order of protection or no contact order in place, the parents are to communicate with each other according to the provisions specified in their court order.

SOLE CUSTODY DOES NOT GRANT THE PARENT THE UNILATERAL RIGHT TO CANCEL VISITS. An order of sole legal custody does not allow the legal custodian to unilaterally modify the custody and visitation schedule. Visitation orders, including orders for grandparents’ visitation, must be followed.

The Covid-19 pandemic is not a reason for denial of a parent‘s/ grandparent’s visits. Parents/Grandparents are required to follow federal, state, and local directives regarding social distancing and safety related measures. This means that you are expected, during your periods of responsibility, to keep the children home during stay at home orders, limit exposure to non-household members, require frequent hand washing, and assist the children in participating fully in their home based distance school education.

SCHOOL HOLIDAYS AND VACATIONS.

While the schools are closed, the parenting schedule shall continue as if the children are still attending school in accordance with the regular school calendar of your child’s school district. School closure for public health emergencies are not considered an extension of any break/vacation/holiday/weekend.

QUARANTINE OF A PARENT

(Self quarantine has been required for a parent as a result of exposure to an infected person or travel.) While a parent is in self quarantine, parenting time for that parent will be suspended during the 14 days of quarantine . When parenting time is temporarily suspended, the parent affected shall be allowed liberal virtual contact with the children through Skype, telephone, zoom, or other communication method. When a parent’s custodial time has been suspended due to the parent’s quarantine, the parenting time shall be made up whenever appropriate and possible. If you are unable to agree to the make-up time, you may file a motion requesting make-up time.

VISITS IN PUBLIC LOCATIONS.

When a custody order requires visits in public places, visits should continue at locations permitted under the applicable government orders. Public places, where people routinely touch common contact surfaces, should be avoided. Outings and activities where parents and children can maintain social distancing and abide by the limits on number of people at a gathering, are encouraged. The location and duration of visits may need to be modified so that they occur in the custodial parent’s neighborhood and for a shorter amount of time. At present, public locations may include a city park or a walking trail. You are encouraged to engage in outside activity with your children so long as you are able to comply with social distancing requirements and the prohibition against gatherings of more than 5 people.

SUPERVISED VISITS

If the person supervising visits or CCNNM is unable or unwilling to continue such visits, the parents are encouraged to find an alternative supervisor. The parties should provide three names of potential supervisors to each other and attempt to agree on a neutral supervisor. If during the Public Health Emergency, supervised visitation is not possible, parenting time shall be conducted virtually via Skype, FaceTime, Zoom, telephone or other means. This should be a last resort and is generally not effective for very young, nonverbal children.

EXCHANGE LOCATIONS

Visitation exchange locations may need to be changed to a location where fewer people congregate. We need to encourage the parents to exercise common sense here.

CUSTODIAL TIME FOR A PARENT RESIDING IN ANOTHER STATE.

Parents are encouraged to check travel restrictions that may exist between states and countries before traveling. New Mexico currently requires that persons flying into the state self-isolate for 14 days. Self-isolation will interfere with that parent’s ability to exercise physical periods of responsibility. Out-of-state parents are encouraged to exercise their summer period of responsibility with the children in New Mexico. If this is not feasible and Governor Lujan Grisham is then requiring 14 days of self-isolation, the children and the NM parent’s household will be required to self-isolate when the children return to NM.

FAMILY COURT SERVICES

Mediation and priority consultations are being conducted remotely. During the public health emergency, we are not automatically scheduling hearings with the issuance of priority consultation recommendations. When objections are filed, the judge reviews the recommendations, considerations, and objections, and either issues a ruling without a hearing, or schedules a hearing.

CHILD SUPPORT AND INTERIM INCOME ALLOCATION ORDERS

It goes without saying that when a parent/ former spouse/ spouse’s income has been reduced due to the Public Health Emergency, attorneys and parties need to make every effort to settle and file a temporary modification of the order. Court hearings should rarely be needed for this issue.

HEARINGS AND TRIALS

Hearings are currently conducted by telephone and occasionally by Google Meets. We are exploring alternate video methods to utilize and will keep you updated. Most trials and lengthy or complex evidentiary hearings are being re-scheduled. We welcome feedback as well as templates you are using. Stay safe and smart,

Sylvia LaMar and Shannon Bulman

Family Law Judges at the First Judicial District Court

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© 2023 by Elizabeth V. Han, Attorney at Law.  Site design by Wallace Design.

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