Solving the parental CATCH‐22: Special masters during times of crisis

• Published date: 01 April 2022
• Author: Kristin Gerdy Kyle,Benjamin Forsgren
• Date: 01 April 2022
• DOI: http://doi.org/10.1111/fcre.12641

SPECIAL ISSUE ARTICLE

Solving the parental CATCH-22: Special masters

during times of crisis

Kristin Gerdy Kyle | Benjamin Forsgren

Brigham Young University, Provo, Utah, USA

Correspondence

Kristin Gerdy Kyle, Brigham Young University,

Provo, UT 84602, USA.

Email: gerdyk@law.byu.edu

Abstract

The COVID-19 pandemic created a unique catch-22 for fami-

lies with ongoing parenting cases. By materially changing the

circumstances of everyday life while simultaneously closing the

courts, the virus placed parents in impossible situations. Some-

times, parents had to decide whether to adhere to parenting

schedules and perhaps expose their children to illness or death,

or to disobey court orders and potentially expose themselves

to possible serious legal penalties. In other parenting cases, the

virus allowed opportunistic parents to wrongfully withhold

their children while the courts were closed. In either situation,

parents often did not qualify for emergency hearings and, even

if they did, an unmanageable backlog in court proceedings real-

istically prevented their cases from being heard. The same pat-

tern was observed in the wake of Hurricane Katrina, and it will

logically take place any time a disaster causes legal problems

and closes the courts. This article presents national data to

reveal the extent to which courts closed during the pandemic

and proposes a solution to these catch-22 problems: a system

in which states activate special masters to act as mobile or vir-

tual neutral third-party decision-makers. By employing such a

system, states would not be exercising any authority that they

do not already commonly use, and they would uphold their

obligations to families even in difficult times.

This is the first article that I have co-authored with a third-year law student. I could not imagine a co-author more wonderful to work with than Mr.

Forsgren; he has been a “co-author”in every sense of that word. From the initial idea for the article through its final edits, Ben has been my colleague, my

equal, and my friend. I hope that any of my shortcomings don't reflect negatively on him.

Many thanks to Professor Gerdy Kyle for being a friend and mentor throughout this process. Thank you as well to the editors of The Family Court Review

for their excellent work and helpful edits.

DOI: 10.1111/fcre.12641

© 2022 Association of Family and Conciliation Courts.

Family Court Rev. 2022;60:259–287. wileyonlinelibrary.com/journal/fcre 259

KEYWORDS

COVID-19, emergencies, FRCP 53, parenting cases, special

masters

Key Points for Practitioners

•Emergencies such as hurricanes and the COVID-19 pan-

demic often put parents in a proverbial catch-22 wherein

they must choose between complying with court orders

and what they feel is inthe best interest of their children.

•National data supports the widely held belief that par-

enting cases were especially hard hit by recent disasters

like the COVID-19 pandemic.

•State court use of special masters would help solve the

backlog of parenting cases during emergencies and allow

parents to seek resolution to ongoing issues while courts

are closed or behind.

•States would be well served to recruit, train, and prepare

for activation of special masters for future emergencies

that impact court operation.

INTRODUCTION

In June 2005, a New Orleans court declared that Zandrea Johnson should share custody of her six-year-olddaughter

with the father, Bobby Spurlock.

1

Two months later, Hurricane Katrina destroyed her home, changing everything.

2

With no house left standingand no courts open to hear her case, Ms. Johnson was left withan intolerable choice: vio-

late the court's order and evacuate her daughter from the danger in New Orleans or comply with it and stay. Fifteen

years later, AnnWyborski of Virginia faced the sameproblem. At the height of the COVID-19pandemic, she agonized

over whether sheshould comply with a court order to fly her asthmaticson and immunocompromised daughteracross

the country for parenting time with their father or adhere to her pediatrician's advice to not let the children travel.

3

She could eithershield her children from exposure to COVID-19or she could obey the law; she couldnot do both.

With no courts available to hear either of these cases promptly, both women were left on their own to decide to

what extent they should obey the law or protect their children. Although extenuating circumstances were present,

the legal consequences of violating their court orders did not change. They, and many others like them, were caught

in a catch-22.

1

This Article will use the term “parenting cases”to refer to the realm of family court cases that involve and impact families and the parent–child

relationship including divorce, separation, child custody, parent-time orders, and the like.

2

Lynette Clemetson, Torn by Storm,Families Tangle Anew on Custody, N.Y. TIMES, April 16, 2006, https://www.nytimes.com/2006/04/16/us/

nationalspecial/torn-by-storm-families-tangle-anew-on-custody.html.

3

Jodie Fleischer, Evan Carr, & Jeff Piper, Shared Custody Raises COVID-19 Concerns as Kids Travel Between Households for Holidays, NBCWASHINGTON.

COM, November 25, 2020, https://www.nbcwashington.com/investigations/shared-custody-raises-covid-19-concerns-as-kids-travel-between-

households-for-holidays/2487742/.

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