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The MSBA Family Law Section hosted a free webinar, “Custody & Visitation Issues During the Pandemic,” on April 29, 2020. The webinar was presented by attorneys Brian Pearlstein, Rebecca Fleming, V. Peter Markuski, Jr., and Craig Borchers, and was attended virtually by nearly 400 attorneys.

The presenters discussed issues unique to family law practitioners, who are striving to best serve clients when courts are closed, visitations are suddenly more complicated, and parents may opportunistically use the pandemic as an excuse to deny child access. Maryland courts do not consider withholding access due to COVID-related health concerns an “emergency” worthy of an emergency hearing. In the absence of agreement between the parties, contempt is only way to proceed, and that won’t occur until courts reopen. Practitioners should not advise clients to violate a court order. Attorneys need to tell clients who have (hopefully genuine) COVID-related health concerns how they would defend their position at a future hearing. These cases will be very fact-specific.

Clients worried about driving for the transfer of custody should be advised to travel with a copy of their custody order; if there is no court order, a temporary consent order should protect a parent who might get pulled over and asked why they are out during the stay-home order.

Visitation ordered to take place in public is more complicated. Parties should be advised to agree to make visitation happen in an acceptable and open location, and to document any such agreement. Supervised visitation is difficult during this time of required social distancing. Courts require supervision for good reason, and there may not be a way to modify the requirement for supervision without putting children at risk. Attorneys must be prepared to convince a judge that this was the case.

The panel also provided a detailed overview of how clerks’ offices and courthouses in Maryland jurisdictions are currently operating and how they plan to operate in the immediate future. Services vary widely from county to county. Many are ruling on ripe motions, issuing summons, and holding virtual scheduling, pretrial, and status conferences. Some are holding hearings on uncontested divorces and conducting virtual mediation. In contrast, some counties are slow in docketing pleadings, and some are not ruling on any outstanding motions or issuing summons. The panel emphasized that Chief Judge Mary Ellen Barbera’s administrative order tolling filing deadlines until courts are open do not apply to discovery and scheduling order deadlines for cases that are already in litigation. Attorneys should file motions for extension. All presenters agreed that if you have an order to attend a protective order hearing, you need to attend, in person.

The webinar can be viewed in its entirety below.