Friday, April 10, 2020 | 2 a.m.
Las Vegas family attorney Rock Rocheleau remembers being floored at how quiet his phone got when Gov. Steve Sisolak ordered the closing of all nonessential businesses on March 20
Divorce Attorney Rock Rocheleau
Rocheleau, who has been with RIGHT Lawyers for the past 10 years, first as a paralegal, now as a divorce attorney, said he was used to getting at least 10 calls a day. COVID-19, he said, temporarily derailed things.
“No one knows what to do,” he said. “No one wants to do anything until they figure everything out.”
That silence only lasted a week, however.
Rocheleau is starting to get more and more calls each day as custody, child support and other familial disputes have become especially more taxing under pandemic conditions.
“Those would be problems no matter what, but what makes it worse is our courts are basically closed,” he said.
Rocheleau predicts divorces and other familial issues will likely pick up as the threat of illness and economic strife that comes with the pandemic will likely further exacerbate issues that already exist in troubled marriages.
New divorces, he said, likely won’t be significantly affected or delayed by the pandemic, he said. In Nevada, one party is able to electronically serve the other for divorce without a hearing.
“If they accept that serve, they have about 60 days to respond,” he said. “So if you project that out, that’s probably not going to be a problem with the court because we’re hoping that 60 days from now we’ll be out of this.”
Other family law issues, however, will take a certain level of diplomacy between both parties until the pandemic ends and family court reopens, Rocheleau said.
Parents who share custody
For parents who share custody of a child, COVID-19 is posing some unique challenges, particularly with the pandemic limiting travel options and parents concerned about possibly exposing family members to the illness.
Family courts are operating at limited capacity right now, with hearings being done telephonically or pushed back in the calendar. So most custody disputes likely won’t be settled in court anytime soon. That's why Rocheleau is advising families to follow custody agreements that are already in place, otherwise, one of the parties could potentially be held in contempt of court over the custody order. Still, he said, common sense and the child’s best interests take precedence over these black-and-white orders.
Just like a parent should not be expected to hand a child off to a parent who shows up to the pickup clearly intoxicated, parents also shouldn’t be expected to put their child in a position where they would be exposed to the virus.
“I had a call the other day where the dad is diagnosed with COVID-19 and he wants the child. And the mom said ‘hell no.’ And she’s right,” Rocheleau said.
Another scenario Rocheleau is seeing is parents who have out-of-state custody who have a spring break coming up who are supposed to be getting their kids right now.
“One parent wants the other to put the kid on a plane and send them to Florida,” he said. “Absolutely not … I don’t care if it’s your month.”
Although scenarios where the child’s safety is blatantly at risk trumps child custody agreements, issues get a little more complicated when parents have different ideas about what social distancing means.
“If the mom says, ‘Dad, you’re not really following enough of the social distancing guidelines, so I’m not giving you the child,’ that’s going to have to be a judgment call by a judge,” he said, noting that getting a court hearing on that or similar issues soon will likely be out of the question. “May, June and July are going to be an absolute zoo in the courts, so a lot of these motions that aren’t emergencies and don’t really need to be heard, I don’t think the judges are going to do anything about them.”
Some parents work in high-risk positions, like medical staff or grocery store clerks, said John Kelleher, family law attorney at Kelleher & Kelleher law firm. In those scenarios, he's seen parents work it out between themselves to where the child will be in the custody of one of the parents temporarily until the end of the pandemic.
Family law attorney John Kelleher
There are plenty of parents, however, who are using the pandemic as an excuse to keep a child from the other parent, Kelleher added.
"We constantly had parents who wanted to withhold their child for a variety of reasons before the pandemic," he said. "Regardless of personal feelings, Nevada case law states that fit parents act in the child's best interest. But when you have two fit parents with two different parenting styles, that's not enough to trump the order unless there's an agreement."
When the parent who withholds a child from visitation does eventually see a judge, they should be able to articulate with a straight face why they decided to keep the child away from the other parent, said Benjamin Leavitt, family law attorney with Leavitt Law Firm.
Family law attorney Benjamin Leavitt
The advice I would give is to make sure they offer makeup time when this all ends," he said. "That would then show a judge that the parent isn't just withholding a child — they were just looking out for a child.”
Parents also can’t force visitation on the other parent, Rocheleau said.
“Let’s say the dad is supposed to have visitation on a Friday and the mom needs him to take that visitation because she doesn’t have day care set up,” he said. “You can’t force the dad to take that visitation. You can come back to the court and ask for costs relating to day care, but you would never just want to drop that child off at the house and drive away.”
Most of the advice Rocheleau is giving his clients right now is to work it out with the other parent. He’ll even go as far as emailing the other parent’s attorney to advise their clients to do the same. That’s why the role of the divorce attorney right now more than ever is to be “very diplomatic” with parents, he added.
“We’re always trying to advise our clients to take reasonable positions,” he said. “It’s the role of the family law attorney to not go to court for unreasonable positions because there is no court right now, and even if there was, that’s not a good thing to do.”
Child support and garnished wages
In Nevada, child support cases are handled through the Division of Welfare and Supportive Services Child Support Enforcement Program. Child support payments are calculated based on the number of children needing support and the noncustodial parent’s monthly income.
The initial order can’t be changed unless one of three events occurs: three years have passed, if the custody schedule is changed or if the income of the noncustodial parent changes by more than 20%.
This means parents who just got laid off or furloughed would be entitled to a change in child support. But, of course, there is a caveat.
“You have to ask the other parent if they’ll agree to that, and it also needs to be a temporary thing,” Rocheleau said, adding that Nevada allows such an agreement be done over email.
Rocheleau referenced the Nevada 1990 Parkinson v. Parkinson case that sets the precedent that if a parent agrees to change the child support and they email the attorneys proof that they’ve settled it, a parent can’t come forward years later to say the other parent didn’t pay them the full amount.
“You have some negotiations that need to go on, but you’re never going to get them filed in court,” he said. “So we’re just trying to get parents to use our child support calculator and make an agreement.”
If an agreement with the other parent can't be made, the noncustodial parent should try to at least make some of their child support payments, Kelleher said.
"What I tell everyone is if you literally cannot make a payment because you lost your job, pay as much as you can so the court can see you are making a good effort," he said. "The courts aren’t heartless; they understand people lose jobs."
One big problem Rocheleau foresees is when Child Support Enforcement garnishes wages from a parent not making the agreed-upon child support payments.
“So even if the parent has an agreed-upon email agreement, will the child support office honor that? I don’t know for sure,” he said. “Normally you would have to file a (child support change) with the court, have the judge stamp it and you’d send that order to Child Support Enforcement. I don’t know if they’ll follow an email. That may be a problem.”
