Pandemic Provisions - Do Force Majeure Clauses Have a Place in Custody and Visitation Agreements?
| Publication year | 2020 |
| Author | Melissa Wheeler Hoff |
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
Our average Stipulation and Order does not provide any tools for a client in crisis. In the interest of our clients' children, our client's sanity, and judicial economy, we must do better. We can look to our real estate and business law colleagues for inspiration.
Our current agreements and orders only work if all parties comply or if the courts are operational. The predominant concern I have heard from current and potential clients in 2020 is that one parent is willfully violating custody orders and using COVID-19 as a shield. I have heard a few iterations of this complaint, even where the parties stipulated to their timeshare schedule. First, imagine an instance where one parent believes she does not have to comply with existing orders because COVID-19 makes following the schedule "unsafe" for the child. For instance, while mother lives in a single-family home, father lives in a large home with several roommates who could expose the parties child to Coronavirus. Second, picture the circumstances where one parent believes he does not have to follow the order because the shelter-in-place order excuses him from following the schedule. In that situation, father may claim that he cannot leave the house for the custody exchange because he will violate city officials' orders. In many cases, the violating parent fully acknowledges that the parties had an agreement but believes he or she is excused from complying.
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In Orange County, Superior Court Family Law Supervising Judge Lon Hurwitz addressed two of the problems mentioned by way of Administrative Order No. 003:
IT IS ORDERED that parties with custody/visitation orders shall follow the guidelines set forth below:
...
2. Denial of Parenting Time: COVID-19 is not a reason to deny parenting time. Unless otherwise ordered by the court, parents are considered fit to care for their children and make decisions regarding the day-to-day aspects of parenting while the children are in their care. This day-today includes all Health Authority and County Public Health directives regarding social distancing and sanitation-based measures.
...
4. Transparency: Unless the parties are restrained from communicating, parents are encouraged to communicate about precautions they are taking to slow the spread of COVID-19. A parent is not permitted to deny parenting time based upon the other parent's unwillingness to discuss their precautionary measures taken, or belief that the other parent's precautions are insufficient.2
Some parties cooperated after reading Administrative Order No. 003, and others did not. Unfortunately, an administrative order like this has no teeth and carries little weight for gatekeeper parents or parents scared to put their children in harm's way. To those parents, Administrative Order No. 003 provided only "guidelines" and "encouraged" cooperation. For parents denied parenting time, the Administrative Order did little to help. Add to this dilemma the lack of assistance from law enforcement in helping enforce custody and visitation orders. Anecdotally, this author is aware of at least three police departments declining to get involved and suggesting, "Deal with it in family court." Unfortunately, if there are no grounds for an ex parte, parents looking for enforcement remedies are short of options.
How can family lawyers help avoid these issues later this year and in the future? In cases where the parties enter a Stipulation and Order, one parent essentially breaches a custody and visitation contract when he or she fails to follow an order. On the one hand, violating a custody order is akin to breaching a contract with the other parent and the court. On the other hand, some parents have good reason to deviate from the order and their "breach" may be excused.
While brainstorming solutions, I considered whether a global pandemic was a "force majeure" that could excuse one party's performance in the custody context. If so, could parties include force majeure clauses in their stipulations?
We learned about force majeure during first-year contracts class in law school. As a review, a "force majeure" is a French term loosely translated to "major force" or generally known as an "act of God." According to Black's Law Dictionary, a force majeure is:
An event or effect that can be neither anticipated nor controlled; esp., an unexpected event that prevents someone from doing or completing something that he or she had agreed or officially planned to do. The term includes both acts of nature (e.g., floods and hurricanes) and acts of people (e.g., riots, strikes, and wars).3
As this definition states, force majeure events are not constrained to acts of God. One test for a force majeure is "whether under the particular circumstances there was such an insuperable interference occurring without the parties' intervention as could not have been prevented by prudence, diligence and care."4
A force majeure can impact contracts implicitly or through express provisions. Implicitly, a force majeure event impacts a contract by common law and statutory law, even where a particular provision isn't drafted into the agreement. In such a case, a force majeure event may invoke the impossibility or impracticability doctrines.
Impossibility,5 generally, is "[t]he quality, state, or condition of not being able to occur, exist, or be done." In the context of contract law, impossibility is:
A fact or circumstance that excuses performance because (1) the obligation cannot be performed because of its nature, (2) the subject or means of performance has deteriorated, has been destroyed, or is no longer available, (3) the method of delivery has failed, (4) a law now prevents performance, or (5) death or illness prevents performance.6
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An example of impossibility is the landlord who can no longer perform his side of a leasing contract because his property was razed in a housefire. The subject of performance has been destroyed. The doctrine of impossibility should protect the landlord from liability for breach of contract.
Impracticability differs slightly from impossibility. Performance is possible, but not practical. Impracticability is:
A fact or circumstance that excuses a party from performing an act, esp. a contractual duty, because (though possible) it would cause extreme and unreasonable difficulty. For performance to be truly impracticable, the duty must become much more difficult or much more expensive to perform, and this difficulty or expense must have been unanticipated.7
An example of impracticability is where seller agreed to sell widgets to buyer for $2.00 per widget. Before seller fulfills buyer's order, civil unrest breaks out where a major widget component is manufactured. Due to the civil unrest, logistical and security difficulties cause the widget's major component to spike from $0.10 to $10.00 per piece. Neither seller nor buyer anticipated this issue when the parties entered the contract. seller is unable to fulfill the order because the surge in component price makes performance impracticably expensive. The doctrine of impracticability may shield seller from damages for breaching the contract.
In California, one or both parties to a contract can be statutorily protected from liability if they are unable to perform obligations due to a force majeure event. Civil Code section 15118 speaks to what the legislature qualifies as a force majeure under statutory law:
The want of performance of an obligation, or of an offer of performance, in whole or in part, or any delay therein, is excused by the following causes, to the extent to which they operate:...
....
(2) When it is prevented or
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