Katrina’s Coming Wave of Family Litigation

Hurricane Katrina and the ensuing devastation have dominated the news and will continue to do so on the national level for weeks to come. The media is scrutinizing every angle of this story and hard questions certainly need to be answered: How could this happen in America? 

Who is to blame for the slow reaction by all levels of government? What will be done to rebuild the Gulf Coast and the lives of its residents? One topic that is starting to surface in some circles, however, is the effect of Hurricane Katrina on matters of family law. The evacuation of New Orleans and subsequent relocation of hundreds of thousands of people from the Gulf Coast could result in a wave of litigation relating to custody, visitation and child support. Tens of thousands now find themselves unemployed and homeless. Virtually every state in the country, as well as many Canadian provinces, are taking in evacuees and enrolling the children into their own school systems. While this action is certainly justified in the face of a national emergency, there is no doubt Katrina’s name will eventually make it to family courts across North America.

The September 9 issue of The Ottawa Citizen illustrated how some divorced parents are handling their situations. The front-page article featured a ten-year old boy from Mobile, Alabama who is now enrolled at Maple Ridge Elementary School in Canada’s capital. His parents are divorced and the father remarried a woman from Ottawa. The boy was spending the summer 1,500 miles away from his home when Katrina ravaged the Gulf Coast. While the article, accompanied by a picture of the smiling boy with his stepmother, praised the local school system and the federal government’s waiving of fees for American children attending Canadian public schools, the only mention of the mother was a short paragraph detailing how she contacted them days after the hurricane and was still in the process of locating other relatives.

One would assume the mother agreed to have the boy spend the school year in Canada even though schools in Mobile are themselves taking in children from Louisiana and Mississippi into their own classrooms. One has to wonder though. What kind of situation is the mother facing to permit such a change in custody? Will the boy return to Alabama to be with the legal custodian after the school year? After all, he may be a Canadian citizen and resident by the time he completes fifth grade. This story brings to light the dilemma that both custodial and non-custodial parents face as a result of Hurricane Katrina: What happens as a result of all these relocations in regards to custody, visitation and child support?

For example, a custodial parent in New Orleans must relocate as a result of the hurricane but the non-custodial parent maintains a residence in Baton Rouge. Obviously, the best solution would be for the custodial parent to relocate to the capital of Louisiana. But what if that’s not possible? What if the parents can’t stand each other? What if the custodial parent can’t get a job there? Or the custodial parent’s family in Illinois is willing to take them in? Of course, this situation qualifies as an emergency so it can be argued that there was no willful action taken to relocate the children without notice to the non-custodial parent. There was no choice but to evacuate a disaster zone. If the custodial parent, however, willfully remains in another state after the opportunity to return home becomes feasible, you can bet that a court date is coming.

There is no doubt that some visitation schedules have been significantly impacted in the aftermath of the storm and divorced parents with already tense relations are (hopefully) figuring out a way to make things work out for everybody. Chances are, however, there are battles being prepared across family courts in affected states. Another issue that was brought up last week by Dr. Ned Holstein of Fathers and Families in Massachusetts was child support. While every state in the nation has responded to Hurricane Katrina with hotlines for help on receiving child support payments, the thousands of newly unemployed non-custodial parents in affected states find themselves in dire financial situations. Many will fall back on their support payments and may be added by automated computer systems to infamous “Deadbeat Parent” lists within months. The State of Arkansas, to its credit, quickly realized that non-custodial parents living in the disaster zone may not be able to pay their child support and is now offering to facilitate a review and modification for orders that were issued in that state.

Every state across the nation needs to follow suit and be proactive on this issue. They must ensure the situation these non-custodial parents face is taken into account when the child support check is due. While some fear that these non-custodial parents may face jail time, most contempt statutes require that the individual have the ability to pay the child support and the failure to pay was willful. In these cases, it is doubtful that any judge would send a victim of Hurricane Katrina to jail for contempt of court unless a willful avoidance of obligations was already present. The missing child support payments, however, will still be due as long as no modification order is in place. That is why states must move quickly on this issue to prevent non-custodial parents from having the burden of additional child support debt.

Hearings for modification of orders must be put on the “fast track” immediately. Of course, this is impossible in southern Louisiana since the court system has been shut down. Louisiana Governor Kathleen Blanco, however, issued on Executive Order on September 6 suspending “all deadlines in legal proceedings, including liberative prescriptive and peremptive periods in all courts, administrative agencies, and boards” until at least September 25, 2005, including those found in the Louisiana Civil Code. This order applies retroactively from August 29 to September 25 “unless amended, modified, terminated, or rescinded by the governor, or terminated by operation of law prior to such time.”

How this order will be applied to family law statutes in the face of the disaster remains to be seen. Because of the magnitude of the legal chaos created, the effects on visitation schedules and child support may lead to a flood of proceedings being initiated whether legitimate or not. While many parents will find short-term solutions, such as in the case of the ten-year old now living in Ottawa, some vindictive parents will inevitably argue the “letter of the law” to gain an upper hand in their legal battles. How courts across the nation will apply that law in the face of Katrina remains to be seen.

While the tangible effects of the hurricane did not affect most states, courts orders issued in family courts may affect a parent who relocated to the Gulf Coast following their divorce. Most courts will be minimally impacted but others may see their dockets increase significantly. The relocation of custodial parents brings up the question of jurisdiction over these cases. With tens of thousands moving to other states for an indefinite period of time, legal matters surrounding custody and child support could create problems in courts where evacuees will be residing for more than six months.

When should a custodial parent relocated to Houston contact the Texas government agencies to collect overdue child support? Logically, those parents will probably continue to contact the State of Louisiana until residency has been established six months from now. But, as mentioned before, some custodial parents may permanently settle in other parts of the country even though notices of relocation to non-custodial parents were never given. Will these custodial parents have to return to face legal battles in Louisiana after having been welcomed into new schools and communities? The question of how many people will actually return to New Orleans when the waters have been pumped out and the city rebuilt remains to be seen.

For those who decide to relocate permanently to other states and those who stayed behind, the issues surrounding custody and child support may have to go through months – maybe even years – of litigation. With many state child support enforcement agencies already overworked as a result of child support payments not being disbursed, the added influx of cases as a result of Hurricane Katrina could not only affect those who lived through the storm, but also parents who witnessed the horror on television. Many are thankful they survived the wrath of Hurricane Katrina and the wave of destruction that afflicted their homes. But custodial and non-custodial parents alike may find themselves facing a second devastating wave from Hurricane Katrina. This one, however, will take place in courtrooms across North America.

 

 

 

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