Pandemic Provisions – Do Force Majeure Clauses Have a Place in Custody and Visitation Agreements?
Melissa Wheeler Hoff
Melissa Wheeler Hoff has been a member of the California Bar since 2014. She practices family law, exclusively, with Johnson Attorneys Group in Newport Beach. She is a proud graduate of Santa Clara University School of Law.
If I have learned anything from the COVID-19 outbreak that applies to my family law practice, it would be: Expect the unexpected. Of course, as family law practitioners we all try to do this whenever we are drafting a stipulation or settlement agreement for our clients, especially in the context of child custody and visitation agreements. For instance, we try to account for contingencies such as school holidays. If visitation exchanges usually take place at school, what happens in the event of a Monday school holiday? To address this, we usually include a provision that will account for that event, such as "During the academic school year, Father will drop children off at Mother’s residence at 8:00 am whenever a school holiday falls on a Monday." Unfortunately, we have learned that few (if any) family law attorneys considered the implications of a global pandemic and shelter-in-place orders when drafting our clients’ child custody agreements.
What’s more, none of us considered what remedy our clients would have when one parent violates custody and visitation orders and the police are unwilling to enforce them. COVID-19 is the perfect tool for a gatekeeping parent. Under normal circumstances, if one party is not complying, we would advise filing an Order to Show Cause for contempt or Request for Order for child custody and visitation modification and sanctions. Unfortunately, these alternatives have been unavailable due to three months of court closures. Due to a tremendous backlog of continued hearings and delayed filings, any party who files a motion in June will be lucky to get a hearing date in early 2021. By then, some parties will have gone nearly a year without seeing their children, with nowhere to turn for help.1