UPDATE: since this post was originally created in early April, the Kentucky Supreme Court has now extended restrictions to May 31, 2020.
Talk to any experienced family court attorney, and most will likely tell you about the ability to count on one hand the number of times that family courts have closed for business in Kentucky. On occasion, major weather events have caused the courts to close for a day here or there.
In March 2019, however, the Kentucky Supreme Court issued historic Order 2020-08, which cancelled all criminal and civil (including family court) dockets across the Commonwealth except for “emergency” matters.
The initial cancellation would last from March 13, 2020 until April 10, 2020. That closure has now been extended twice (once to April 24, 2020 in Order 2020-13) and most recently to May 1, 2020 (in Order 2020-16.
Our family law attorneys here at Goldberg Simpson had dozens of hearings affected by this closure, and we have been in touch with our clients about rescheduled court dates and the new protocol under the Supreme Court’s Orders. The Chief Judge of Jefferson Family Court Tara Hagerty stated in a notice that every attempt would be made to reschedule hearings as quickly as possible. Each judge’s staff has been communicating with the attorneys and pro se parties about new hearing dates.
WHAT FAMILY LAW CASES ARE BEING HEARD DURING THIS TIME?
The emergency matters which were initially allowed to proceed were domestic violence hearings (in other words, court dates for EPOs and DVOs would occur as normally scheduled); temporary removal hearings (TRHs) in dependency, neglect and abuse cases (generally involving child protective services or CPS), and arraignments on executed bench warrants (for example, individuals picked up on a judge’s warrant due to nonpayment of child support).
In an amended Order (2020-09) issued shortly after the original Order, a clarification was made that “time-sensitive” matters could also occur, including “emergency custody hearings, and certain types of hearings in criminal cases.” Another local court has stated that termination of parental rights (TPR) pre-trials and trials would move forward.
As an example, the Oldham Family Court released the following protocol for the Supreme Court mandates closure:
The following cases shall continue to be heard on the dates/dockets they are assigned to:
1. Juvenile –Emergency Custody Orders
2. Juvenile–10 day TRH new petitions with actual removal of child
3. Juvenile—Recommitment case if child will turn 18 before the current expiration date of the court cancellation period
4. All Emergency Protective Orders
5. All Motions for extensions of Domestic Violence Orders
6. Child support cases where the responsible parent is incarcerated
7. Other approved emergency cases.
For cases allowed to be heard, there is a strict restriction on those present at the hearing to parties, counsel and necessary witnesses.
If not listed above, the hearing shall be postponed and rescheduled. We will attempt to reschedule cases in the order they are on the current docket by either email or phone contact. Please do not contact the court for a date unless you have not been contacted by the date of your scheduled hearing. It will take time to communicate and get affirmation of scheduling dates. Please timely respond to rescheduling requests.
Motion Docket. We shall attempt to schedule dates for matters on the motion docket in the same manner as stated above with the same provisions applying. If you prefer you may simply renotice your motion for the next available motion docket after April 10, 2020. For currently scheduled motions to withdraw, qdro or status quo entry or other motions/orders to which there is no objection, the nonmoving shall file a notice with the court so stating or the parties may submit an agreed order.
In the event a matter currently scheduled on the court’s docket is settled please timely notify the court so it may be remanded from the docket and further contact is not attempted by court staff.
Much of the regular business in family court is conducted at motion hour (which occurs each Monday in Louisville and Bullitt County) and most Fridays in Oldham County. The motion hours for March 16, March 23, March 30, April 6, April 13, April 20, and April 27 have all been affected at this point. Because many attorneys and parties converge at the courthouse on those dates, these appearances were cancelled in light of the state of emergency issued by the governor and social distancing concepts. Paternity/child support dockets have also been cancelled during this time.
The initial plan was to pass the first motion hour cancelled (i.e. March 16) to the next regular motion hour to occur (i.e. April 13). However, further extensions of the Supreme Court Order have affected this plan, despite motions continuously being accepted by the clerk’s office with normal deadlines applying (i.e. filing a motion on the Tuesday prior to the following motion hour on Monday in Jefferson County). When courts re-open, obviously there will be congested motion hour dockets, usually referred to as “double” dockets, but the closure of this docket for weeks on end will likely result in a backlog unlike any other in recent memory.
As another example, a couple of the family court judges have issued a general protocol for motion hour that may control for the foreseeable future:
The Court will review ALL motions, in hand, on Mondays, or shortly thereafter, and then issue the proposed ruling. Counsel will follow the “proposed rulings” as given, unless objection. Any “objections” should be emailed to the secretary and the matter then taken “Under Submission”.
– The Court will review ALL motions, in hand, on Monday’s at noon, and shortly thereafter issue a proposed ruling on the same day.
– Counsels will have until the following Monday at 10:00 am only to file written objections. Copies are to be emailed as well to the judge’s secretary.
– The matter will then be taken “Under Submission”, unless Counsel objects. Temporary child support motions, if properly filed, will be ruled upon. Child Support Motions that just need to be signed, will be signed by the Judge; Child Support Motions needing hearing dates; contact the secretary via e-mail (if they have not already been addressed prior to this notice)
– If you have an objection, please ensure ALL parties are included in your email, the case number and parties last names are included.
– No Hearings will be held unless the Courts deems emergent. The Court’s mediation requirements and other court protocol remain in effect.
– Agreements should be submitted “off docket” for faster processing.
– Please keep in mind, the Clerk’s Office is operating at 50% staff.
Initially in mid-March, the courthouses were open and parties could continue to file motions and legal documents in person. However, under the Supreme Court’s most recent directive, electronic filing, mail and an outside dropbox (if available) are the only means to file now as in-person business at the courthouse has essentially been stopped to minimize exposure to COVID-19.
Family and trial court judges have been instructed to use telephonic or video technology to conduct all hearings, unless the parties are unable to participate remotely, in which case in-person courtroom attendance cannot exceed ten (10) people.
On March 18, Chief Justice John Minton also granted relief to those who may have matters pending in the Court of Appeals or Kentucky Supreme Court by granting an extension of time in those courts. (An updated Order on that front was released on April 1.) Evictions have been suspended pursuant to the Governor Andy Beshear’s Executive Order 2020-257. Various other legal avenues have been affected, such as the deed room closing which affects those that may, for example, be filing quitclaim deeds after a divorce. All legal documents must now be recorded by mail. Online access to land records and the PVA’s office are still active.
DO PARENTS HAVE TO CONTINUE EXCHANGING CHILDREN DURING THE PANDEMIC?
The obvious question that began to arise after the pandemic begin, particularly in light of “stay at home” orders by local governors, was whether parents had to continue exchanging children pursuant to custody orders or agreements. Specifically,
Should you withhold your child from the other parent if they have been or are likely to be exposed to the novel coronavirus?
Should you put your child on a plane for scheduled parenting time?
How should supervised parenting time or parenting time in public be handling during the lockdown?
What can you do if a parent won’t discuss precautions?
What if I have sole legal decision making? Can I decide to change the parenting time?
Should this time be treated as summer parenting time, spring break, or school time?
What should a parent do if they, a household member or a child has been exposed or tested positive for COVID-19?
Prior to the Kentucky Supreme Court specifically speaking to this issue, it was interesting to see local responses. For example, the Warren County Family Court judges in Bowling Green specifically noted the number of inquiries they were receiving about exchanging children by parties who were in a timesharing arrangement. Qualifying their comments that no standing (or specific) Order was being issued, just “insight”:
Unless serious endangerment to child, timesharing issues are NOT an emergency; those hearings are continued like all other civil matters until Chief Justice says otherwise
To withhold timesharing, party must meet strict requirements of statute’s specific language. KRS 403.240 which places burden of showing endangerment. Unless there is a VALID and REAL reason not to abide by the orders, they should be followed. Contempt carries possible sanctions of 180 days and $500 fine
On March 27, 2020, the Kentucky Supreme Court officially provided guidance for custody and parenting time orders during the pandemic. Click here to see the full text of Order 2020-14.
Unlike some states, such as Indiana that arguably kept this issue a bit more straightforward in saying that current orders should be followed, Kentucky’s guidance provides limited, specific ways that a current order of custody and parenting time may be temporarily suspended for 14 days to account for extenuating circumstances related to the COVID-19 emergency. It will be interesting to see how this order is interpreted and enforced once the weeks and months continue.
For an interesting and detailed take from a court in Canada that touches on many of the issues circulating around right now, check out: https://www.canlii.org/en/on/onsc/doc/2020/2020canlii23204/2020canlii23204.pdf
Our attorneys are understanding that many people are experiencing grief, stress and unprecedented change during this time. We are equipped to work remotely while courts are closed. We are using virtual mediation and prompt electronic filing to still address pressing issues. Do not hesitate to contact us if we can be of any assistance.