We've received a lot of questions about shelter at home, quarantine, and parenting plans. Here's what you need to know. In general, you must follow your current parenting plan during any shelter-in-place order during the COVID19/Coronavirus crisis. Period. There will always be exceptions, but here's what you need to know.
1. Your parenting plan is a Court order. This is true in Idaho and Washington, where we work, and in many other states (please consult an attorney in your state if you are unsure). That means, if you do not follow your parenting plan, you are violating a Court order. The court doesn't enforce parenting plans unless one parent comes to the court and asks for enforcement, but technically not following a parenting plan means you are in contempt of court. This is civil contempt (versus criminal). Civil contempt does have penalties, including fines and possible jail time (jail time is a severe, and rare civil penalty). Your parenting plan is a court order whether or not it came from a mediation, a trial, a hearing, or an agreement. The only non-court ordered parenting plans exist between parents who never chose to file their parenting plan in an appropriate court. Those are not enforceable, and they are never a good idea.
2. What if the other parent will not give me my child(ren) as the parenting plan requires because of COVID_19? Again, this is technically a violation of the parenting plan. Document all the communications between you and the other parent. Save emails and texts, take notes of oral communications. Do not record any phone calls in Washington state unless you have actual, spoken consent from the other parent, as it is illegal (an actual crime in a two-party consent state). But, you are unlikely to be able to enforce the agreement and make the other parent provide visitation right now because courts in Washington and Idaho are only hearing emergency motions. Emergency motions in family law are things like domestic violence. Absent that, you can file a motion with a court, but it is unlikely to be heard until May in either state. Courts will not look kindly on a motion for contempt that is based on things like slightly late drop off or pick up - quite honestly, the court will view you as a jerk for doing that. So stop doing this during this pandemic and at all other times. Unless your parenting plan has a strict rule about how long you need to wait for drop off or pick up and unless the other parent is violating that regularly (like, every drop off and pick up), you are wasting the court's time.
3. Be reasonable. Try to be flexible with the other parent with school closures, school at home, and work from home. It is always a good idea to be reasonable, even if the other side is unreasonable. Take the high road; go high when they go low. If you are able to accommodate schedule changes with the other parent for the purpose of COVID_19/Coronavirus circumstances, then do it. Always assume that any email or text message you send will be read by a judge. A judge will not take kindly to you behaving badly, calling names, or being unreasonable, even if the other parent started it. Be an adult for your child, especially now. Adults do not name call or curse at the parent of their children.
4. What parenting plan do I follow? It is super unlikely that your parenting plan has a residential/visitation/custody schedule that says what you need to do in a pandemic. Since that is so unlikely, follow the parenting plan that best fits the circumstances. If your child is in school, even if s/he is doing school online at home, follow the school year plan. If your child is not school age, follow the current plan. If there's some exception in your plan that you reasonably believe applies, follow that plan.
5. What if the other parent is not social distancing or practicing other COVID_19/Coronavirus guidelines? This is tricky. In general, you still cannot withhold visitation from the other parent because they are not taking Coronavirus seriously. There's no law in Washington or Idaho at least that would allow you to keep your child(ren) from the other parent because they are not washing their hands enough. You likely do not have much say in this barring some extraordinary provision in your parenting plan.
6. What if there is violence towards me or my child? Immediately call the police/local law enforcement. Courts are still hearing protection orders, and they will provide you protection. Contact your local county courthouse immediately if you or your children are victims of violence.
7. What about child support? Like a parenting plan, child support is a court order. So, if you must pay it, keep paying it. If you have been laid off or are working less, unfortunately you are unlikely to be able to go back to court right now for a modification of what you must pay (again, this is not one of the emergency categories in Washington & Idaho that courts are limiting hearings to for now), so pay what you can. If you make payments that are less, absent a written agreement from the other parent, you may be responsible for any back support amounts that are not paid plus interest. If your financial changes are permanent, you will be able to go back to court to modify your child support payments, but be patient until the Courts re-open. If the other parent is not paying you, you can file a motion to enforce a child support order, but again, it is not getting heard at least until May in Washington or Idaho. If back support is needed, it will be collected at a later date if you can't get a hearing date before May.
If you aren't in Washington or Idaho, contact a lawyer in your state. If you need help in Washington or Idaho, contact us. Stay safe!
Every day there's new information from your home state and the federal government during the COVID_19/Coronavirus crisis. Since it's the beginning of the month, we want to explain the current status of rent payments (and mortgage payments) and dispel any misinformation.
1. Do I have to pay rent during Coronavirus? The short answer is yes. This is in every state. Unless your landlord has told you you can skip a month(s), you have to pay your rent. The same is true for your mortgage. Unless you've been granted a forbearance of deferment for your rent or mortgage, or if your landlord has offered rent forgiveness, you must pay.
2. But, what if you can't afford it? Pay what you can. Most states, including Washington and Idaho, have put a moratorium on eviction (renting) and foreclosure (mortgages). That means you can't be removed from your rental home or the house you own during the current shelter-in-place rules if you cannot pay because of the Coronavirus and your finances. It does not mean you cannot get kicked out for rules violations of other varieties. For example, Idaho has made clear that if you are using illegal drugs (including recreational marijuana), you can still be evicted. But, to be as clear as possible, it does not mean that you will not owe the rent or mortgage amounts you did not pay during the COVID_19 crisis. Those payments will be due at some point, and as of right now, there's no clarity if they will all be due immediately upon people being able to return to work and/or a lifting of any shelter-in-place/stay at home orders.
3. So, what should I do? If you can pay your rent or mortgage, pay it. If you can't or don't think you can pay it in full, pay as much as you can, as it may be due later.
4. If there is a rent or mortgage forgiveness order made by your state or the federal government, we will update this post. But, neither Washington nor Idaho nor the federal government have made any rule or law about rent or mortgage forgiveness.
If you have more questions, contact us (for WA & ID). Stay safe!
Previously, we talked about wrongful termination in Washington. The rules in Idaho are similar, but not quite the same as in Washington. Here's a summary:
Idaho is an an at-will work state, like Washington (for more details, see our previous blog post about being an at-will employee: employment-law-101-what-is-at-will-employment.html). In general, both the employer and the employee have the right to end the employment relationship in an at will setting for no reason. Certain exceptions apply in Idaho, including, but not limited to: (1) presence of an employment contract; (2) unlawful discrimination; (3) violations of collective bargaining agreements for union employees; or (4) retaliation for asserting your rights as an employee. Since employment contracts are rare in most industries, we'll focus on unlawful discrimination.
Idaho follows federal law with regard to protected classes in employment -- groups of people who cannot be fired from a job simply because of his or her membership in that class with no other legitimate reason for the termination. Those protected classes include: age (over 40), race, color, national original, sex, pregnancy, religion, and disability. Employers with five or more employees must comply with these laws. Idaho employers can always fire an employee in one of these classes for cause, meaning the employee violated a company policy or law.
In Idaho, the Idaho Commission on Human Rights (IHRC) investigates claims of employment discrimination based on Idaho state law. Federal law discrimination violations are handled by the Equal Employment Opportunity Commission EEOC). If an employee in Idaho is alleging discrimination as the basis for his or her wrongful termination (or other negative employment decision, like failure to promote), she may be required to file a complaint with the IHRC, the EEOC, or both.
There are other instances in Idaho where an employee may have been wrongfully terminated, including filing for workers' compensation benefits, whisteblowing (reporting violations to a governmental agency), military leave, jury duty, and family and medical leave.
Employees: if you believe you have been wrongfully terminated in Idaho, talk to an employment attorney licensed in your state as soon as possible. Certain strict timelines exist for you to take action. The consultation with an employment attorney should be free. Employers: if you have questions about hiring and firing an employee who may be in a protected class, contact an Idaho employment attorney to avoid wrongful termination claims.
In employment settings, you often hear the term "at will" or "at will employee," but what does that really mean? It means that your employer can fire you for any reason or no reason at any time without any notice, so long as the real reason for firing you as the employee is not unlawful in some way. Almost every state has some iteration of at will employment laws. At will employment also means that the employee can leave when she or he wants as well.
Exceptions to at will employment include:
1. Employees with employment contracts (this is rare in Washington and Idaho)
2. Union employees bound by a collective bargaining or union agreement
3. Independent Contractors
If you are an at will employee, you are usually notified of that upon hiring, in an employee handbook, and in employer-led trainings. You should assume that if you are an employee in Washington or Idaho, and you don't fit one of the above-three exceptions, you are at will. Your termination is only unlawful (or, wrongful termination): (1) if you've been unlawfully discriminated against as a member of a protected class (veterans, women, persons of color, religion, sexual orientation); (2) if you've reported a violation of a local, state, or federal violation of a law or regulation; or (3) if your employer failed to follow its handbook procedures in terminating you (such as failure to follow progressive discipline policies that are in writing). We'll talk more about unlawful termination in our next Employment 101 post.
In the meantime, if you are an employee or employer with questions about being terminated or terminating, GIANTlegal is happy to help.
All blog posts are written by members of the GIANTlegal team, unless otherwise indicated. Information contained in our blog does not constitute legal advice, nor does it create an attorney-client relationship.