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168 - Are Parenting Plans Still Valid with a COVID 19 Lockdown?
Leh Meriwether: Episode 168, Are Custody Orders Still Enforceable In A Pandemic?
Leh Meriwether: Welcome, everyone. I'm Leh Meriwether and with me is Todd Orston, your host for Divorce Team Radio. A podcast sponsored by the Law Firm of Meriwether & Tharp. Here, you'll learn about divorce and family law, and from time-to-time, even tips on how to help save your marriage if it's in the middle of a crisis. So, today we are talking about are custody orders still valid or still enforceable in a pandemic?
Todd Orston: Definitely valid. It's an enforceability issue.
Leh Meriwether: Yeah. So, the custody orders do not go away in a pandemic, but we're going to talk about everything that's sort of happened when it comes to custody orders, at least in the state of Georgia. We haven't analyzed all the other states, but I'm sure if we were to do an analysis of all the different states, we would see some similarities. Partly, because no one that's currently alive has ever lived through something like this before. So there've been pandemics in our history, the Spanish flu of 1918, there's actually a study that analyzed the social distancing and the curve and all that stuff from that pandemic of 1918, but I'm not aware of anybody that's still alive from that. There may be some people, but they were kids. So they wouldn't remember it. But for the rest of us, we've never been through anything like this.
Leh Meriwether: So, we are constantly getting questions. We belong to a couple things online where people post questions and lawyers can answer those online. And I have seen, I don't know how many questions or situations where someone's writing, "Hey, can my ex spouse keep me from seeing my children? I have a custody order, it's my time and they're telling me that your house isn't safe and you can't have custody with kids or no, I can't go outside right now." So we wanted to address that today, because as you said in the last show, what you say and do can be used against you later on in court.
Todd Orston: Absolutely. To your point before, it's not a matter of enforceability. I mean, of do they exist or are they still valid? It is rather, enforceability. And that's what we as attorneys are struggling with right now. In the past, if someone had an order and someone wasn't complying, we know what to do and we still know what to do, but what we could do in the past to get, not immediate, but very quick assistance from the court, some of those rules don't apply anymore.
Todd Orston: Now, we are playing by a whole new set of rules. And getting in front of a judge is not nearly as easy as it once was. And that is not, don't get me wrong, I'm not faulting the judges. All I'm saying is that the system has changed and applying, let's say in the context of a contempt, applying to the court, filing a contempt action and saying, "My client needs help because something is happening." Well, you would do it and ultimately, and sometimes sooner rather than later, you would get in front of a judge and the judge could deal with it.
Todd Orston: Well here, not only is access to that judge going to be different. First of all, the hearings are going to be for the most part virtual, but also we're dealing with issues related to how is the court going to look at the decisions that parents make in the context of COVID-19, because there's going to be a lot of cases where someone says, "This parent withheld parenting time. But, it was because of this fear of COVID-19. Didn't want our child or children to get sick by going one house to another, and so I made this decision." Well, if it was just not COVID-19, well hey there's a flu out there, which don't even get me started. We've talked about this. The flu also kills many, many people. But it's something we've grown accustomed to. And so if somebody said, "Well, the flu, and therefore I'm not going to let the other parent have parenting time."
Todd Orston: For the most part, we could say, "Yeah, the court's not going to accept that." I mean, unless literally the other people in that house had the flu and you were like, "Well, just get better."
Leh Meriwether: Or currently have it.
Todd Orston: That's what I mean. Yeah. Then fine, I can understand that. But simply saying, "Well, the flu could be over there, and therefore no parenting time for you." Court's not going to accept it. But COVID-19, we don't know how the court's going to handle this. This is brand new territory where the court's going to have to think of things now, not just in terms of there are some viruses out there and maybe the parties have it, maybe they don't, but it's out there. We have to think about it. To now, it's a pandemic. And how are we going to deal with things ... in consideration of the fact that this is a pandemic and social distancing and stay at home orders and all of these things. How will that impact the judges in how they think about these custody disputes?
Leh Meriwether: Yeah. So let's talk about, sort of go through the history of some of the issues that have been out there. And then circle back around and sort of give some, maybe run a few hypotheticals. All right, so let's start with the first thing we saw was when the schools went to digital learning, when they went all virtual. And so there was no, the kids weren't going to a classroom. It was is all virtual. The first thing we saw was, well school's out. So we don't have to follow the school schedule anymore. To which the courts around Georgia and I'm sure in other states as well, I haven't checked, you would have to check if you're in another state. The court houses said, "No, school's still in session. It's digital. So any existing custody orders, follow them as if the school was in session." Which, right now, when we're recording this, this is the spring break. So all those things apply.
Leh Meriwether: And then the governor issued a shelter in place order and that caused a little chaos at first, because as we mentioned last week, the order didn't define custody exchanges as an essential activity. Now, some judges and some counties issued orders saying, "We consider this an essential activity because it's important for the health and wellbeing of the children." Because in there it said you could go out if your activity had something to do with the health and wellbeing of your household, which would include groceries and that sort of thing.
Leh Meriwether: So the court said, "We're interpreting this order to include that." But, then thankfully the governor subsequently amended the order of the following day, I believe it was the following day, to include custody exchanges as an essential activity. So, that that cleared that up. So, that was sort of a brief history of how we got to here. We're recording this the week of spring break. What is today? It's the week of April 6th.
Todd Orston: Yep.
Leh Meriwether: I almost lost track of time. It's just everything's been so crazy. So the week of April 6th. So something, if you're listening to this after that, things could have gotten better or worse. And the orders have changed. I don't know. We're just talking about as of now.
Todd Orston: Yes.
Leh Meriwether: Okay. So that-
Todd Orston: ... so that's [crosstalk 00:07:53]. The orders coming from the governor, that's one thing. We have federal orders that are being handed down. All right. For me, where things get a little bit sticky, is how are the individual judges handling it? And like I was saying, and we said in the last show, basically from judge-to-judge, they're going to do things differently. Now, here's something interesting. I actually just received this from one of our attorneys. And there was an issue where just summing it up, there was an issue where the other party was in ... well, our client actually is in North Carolina and the other party is here in Georgia. And I guess there was evidence that the party here in Georgia kept having guests over at their house at a time when they're supposed to be social distancing.
Todd Orston: We filed an emergency motion and it went in front of the judge and basically the judge conducted a telephonic hearing and ordered that the child could stay and would stay with our client for another two weeks to make sure that any incubation period, to make sure nobody in the home was sick. So in other words, here's one judge handling it a certain way. Another judge might handle it totally different, but this judge basically was concerned enough that he said, "Okay, this court is okay with you with holding the child. And as a matter of fact, here is an order mandating that the child will stay away from that other home because that home is engaging in," I guess what the court felt was, "Irresponsible social distancing behavior by bringing third-parties into the home and then allowing the children to be there where they could be sick." So again, this is a brand new. This is, as they say, hot off the presses, order, basically that was entered by this court that dealt with this specific issue.
Leh Meriwether: And just the very end of last week, just a few days ago, there was a case where they were trying to avoid filing for contempt, and a lot of times the Sheriff's deputies, Sheriff's offices and the counties will enforce a custody order. So someone is supposed to have custody of the children and they're being, the other side's denying it, you can call the Sheriff's department and they can say, "Look, you need to turn over the child." Well, this most recent time they said, "We're not enforcing custody orders."
Leh Meriwether: So the person had no choice but to file for contempt. And now every County may handle this different. Every Sheriff's department, might handle this differently, but don't be surprised if the Sheriff's department says-
Todd Orston: ... we can't help.
Leh Meriwether: We can't help because maybe they don't consider that essential. I mean it's unfortunate, but if the police are going to be exposed to COVID-19, it should be for serious crimes or robberies, more in a criminal setting than a civil setting.
Todd Orston: Yeah. And I don't know what the motivation there was. It could, because I'm not going to assume that this is just a Sheriff's office that doesn't want to help. I think if I have to-
Leh Meriwether: ... right. That's why I didn't mention their name.
Todd Orston: Yeah. If I'm going to assume anything it is, and I think I said this before, that maybe they just have bigger fish to fry. In other words, we would love to help, but number one, we are still dealing with so many other issues right now that we can't utilize our personnel to help you with this. So we're really sorry, but right now we can't help. It also could be a liability issue. We keep saying this is brand new for courts, for law enforcement, for everyone. And so what is going to happen if a sheriff deputy says, "Okay, we will help you to enforce." And goes over and forces the exchange of custody over the, let's say objections. Like this case that I had just talked about, where one parent was saying that party, that other parent keeps having parties and people are coming in.
Todd Orston: And coming in, going out, they could be bringing COVID-19 into the house. It's not safe for the child or children. So is a sheriff deputy then going to force the parenting time exchange and then the child gets sick. So I think it also has a lot to do with the sheriff department saying, "Look, we're not going to be the ones who are at fault for forcing this. You need to deal with the court. Go see what the court wants to do, get an order from the court." My guess is if they got an order from the court and then presented it to the sheriff with instructions that the sheriff would help with forcing that visitation.
Todd Orston: I have no doubt that they would help. But, right now absent that, I kind of understand why they, Sheriff's offices, are reluctant to jump in and try to enforce these existing orders.
Leh Meriwether: And some may be short-staffed.
Todd Orston: That's right.
Leh Meriwether: Because, I mean if you think about it, if they're enforcing the laws out there, they are exposing themselves to COVID-19 constantly. So maybe they have all, a number of them could have already gotten sick. And so following the quarantine rules, they're self quarantine themselves, and they could have less staff than they need to really enforce the laws. So we don't know what's going on. And I'm not faulting ... I only brought it up so people are aware. It's an enforceability issue, not that these orders are still not valid. Now, that being said, so let's play that scenario out.
Leh Meriwether: The person wasn't able to ... they weren't able to use the Sheriff's department to enforce the order, so they file a contempt. And as we've mentioned, the last show too, there was a rumor that there was a judge that said, "I'm not hearing any contempt's right now." I don't know if that was true. I don't know what judge it was. It was just something I had heard. So let's assume you have that scenario. Maybe this judge is in the middle of something. Maybe your judge has come down with something.
Leh Meriwether: We've already had one judge in the state of Georgia die of the COVID-19, a probate court judge. And I don't remember if it was in Albany, Georgia. But anyways, a probate court judge has already died. They didn't do the shelter. I mean they didn't change things up fast enough. That's what the article is saying. And apparently she was a fine judge and practicing. She had been a judge for a long time, but unfortunately she fell victim to this. So judges are very acutely aware of what's going on. But, just because a court doesn't say, "I'm not having contempt hearings now." That doesn't mean that you can't get relief later because the court has a lot of power to do things.
Todd Orston: And let me just jump in for a second. It also doesn't mean that you might not be sanctioned later for your decisions and your behavior. So, I don't want anyone listening to think that they can, just because judges may be reluctant or unable to schedule very quickly a contempt hearing in order to deal with these issues, that does not mean that at some point in the future they won't be able to and will absolutely conduct a hearing. And if your behavior was clearly unreasonable, going back to as an example, the case that I was talking about, that I can understand the rationale. But hey, how about this? I had another person call and that person was questioning what should I do? And while I don't have an answer, a definitive answer as to in terms of advice, what you should do.
Todd Orston: We went through all the pros and cons. In that situation, not only was the other party having social events at their home, but they wouldn't communicate actively with the parent to give assurances. And then third, it was a situation where the caller was pregnant, which put her in a high risk situation. So lack of communication, social activities in the home, and I'm sorry, one more thing. The child had asthma, which put the child in a high risk situation.
Todd Orston: Even then, I could not say to that person definitively, this is what would happen, because I have no idea. But going to the first example, there was a judge who is clearly concerned enough that the judge imposed, not a sanction, but a precautionary measure to hopefully ensure that when custody time resumed, anybody who was going to get sick, got sick. And now the child is going to be safe.
Leh Meriwether: All right, so you had mentioned sanctions. So one of the things that a court could do, and again this is just a hypothetical, but I know it's within the court's power. I've seen courts do something similar in different scenarios. So let's say a parent starting at the beginning of or mid-March, denied parenting time because the COVID-19, and the court finds it was an unreasonable denial from the middle of March all the way till the beginning of June. Let's say hypothetically that the social distancing, we get through everything, everything looks safe at the beginning of June, they lift all these restrictions. And so she says, or he, whoever it is. Says, "Now you can have parenting time."
Leh Meriwether: Well, a court could say because you denied one parent two and a half months of parenting time, I'm going to make all that up. And so over the course of these two and a half months, this parent, the denied parent should have had 30 days of parenting time. You took that away. So the entire summer now is going to that parent, except for a week. We'll give you one week vacation with the child or children, but the whole month is now going to be with this other parent. So the court can in a contempt action in Georgia give makeup time.
Todd Orston: Yeah. And here's an interesting point that I was thinking about when you were giving that example, is the court doesn't necessarily need to wait until the summer. That's traditional, right?
Leh Meriwether: Right.
Todd Orston: Because right now the court doesn't want to basically interfere with school. And so will say, "Okay, there's going to be makeup time over the summer when the children are out of school." The children are out of school. I mean they're in, but it's all remote learning. So the argument could actually be made, I don't care if the other parent is down the street 10 miles away or even in another state. The argument could technically be made, "Hey judge, thank you for hearing this so quickly. Can the child go right now to my client's home?"
Todd Orston: And if the argument comes up, well what about school? It's remote learning. My client has internet, my client has a computer, my client is totally set up. And by the way, my client has been active in the child's education. So, that will continue to happen. The child or children will be fine and their schooling will continue. So again, times have changed and because of that I could see that argument saying, "Don't wait until the summer, let's start the makeup time now."
Leh Meriwether: Yeah. So I think the biggest point here is use some common sense. And the courts, those that may withhold parenting time, there may have already been issues out there, there may have been a lot of conflict between the parents. Understand if there's a history, the court may ... what may have been a reasonable fear under the circumstances, now the court may look at it as an unreasonable fear because of a history of conflict between the parents. So, that's something to keep in mind. Use your head, be smart about it, communicate with your parent. In fact, I've talked to a co-parenting coordinator. Oh my gosh, she is on the phone all the time trying to work out disputes to avoid getting into court. But, she said she's going to come on the show to talk about what this pandemic has done to co-parenting and give some helpful tips on how to coordinate with your co-parent for the sake of your kids.
Leh Meriwether: Because at the end of the day, and you read this and all the orders, the courts believe that it is so important that the child spends quality time with both parents, especially in a pandemic, because there's a fear. I mean unfortunately, whether you ... and I won't get into the analysis of the media, but there is a lot of negativity right now in the media. All you see is a death count all the time. And the child is going to be worried about the other parent. You may hate your ex spouse, you may hate them, but odds are 99% of the time, your child or children love that other parent and are worried about them and want to see them.
Leh Meriwether: So don't think you're doing them any good by denying pairing time. Now, of course, I'm sure you can go into a bunch of different examples, like the asthma example is ... or the one where the judge withheld parenting time because mom wasn't following, I don't know if it was mom, but one parent wasn't following the social distancing laws, so the court withheld parenting time. I mean, that's common sense.
Todd Orston: Yeah. And if I'm going to harp on any point, it's going to be utilize common sense, because I've said this before and I'm going to say it the same way. There will be a day of reckoning. And it may be in a week, like this judge, very quickly we filed an emergency motion and we were able to get the court's attention and get the court to act. All judges will handle it differently. Some will prioritize and you'll get in front of them quickly. Some might say, "Hey, I'll see you in three months." But just because that's the case, you may win that three month period. In other words, you may say, "Well, I have my child for three months. I win." Not really. That three months, granted your child or children are with you. There will be a day of reckoning. If the other party files a contempt action.
Todd Orston: You will ultimately have to stand in front of that judge and explain your behavior, explain and justify why you chose to do what you did. And if it's unreasonable, if you fail to use common sense, then you better expect that that judge is going to be upset. And we keep talking about a contempt. That's not the only possible outcome. If you engage in bad behavior and you utilize this, if it becomes clear that you have utilized COVID-19 fear to withhold parenting time, and you end up in front of a judge, and the judge listens to all the facts and not only did you prevent physical contact with the other parents, but then telephone contact was difficult and that could open the door to a modification. If the court feels that you've engaged in that really bad behavior. I'm not saying this will happen or won't happen, but is it possible?
Todd Orston: Absolutely, that the court could feel that maybe a change of custody is appropriate. If the parent had been the primary custodian, would they have engaged in that same behavior? Maybe not. But, we're going to go ahead and we're going to see. So understand there will be a reckoning and whether that amounts to make up time or a loss of custody on the extreme end. I can't tell you. But, you need to be careful. You need to apply common sense and make sure you are thinking, it's chess, don't just be thinking about your action. Think two, three, four, five moves ahead. So you are anticipating, okay, how will my action affect me in the future? What will the other parties, including the court, how will they look at my actions and how will they judge me?
Leh Meriwether: Keep in mind the court also has the remedy of jail.
Todd Orston: Yeah.
Leh Meriwether: So let's say we've gotten through this and we're ... let's say we're in July and there's no ... because a judge isn't going to throw someone in jail if the jail is filled with people that have become infected, they're not going to do that. But, let's say we get long passed this. I mean the court could say, "I think your behavior was incredibly inappropriate and there's going to be a punishment. I'm going to wait until the jails are clear. But you're going to have to report and spend a day in jail because of this behavior to understand that I'm serious about my orders." So a court could do that.
Todd Orston: It could. And again, we're talking about some extremes.
Leh Meriwether: Right.
Todd Orston: Do I anticipate judges are going to start throwing people in jail? I don't.
Leh Meriwether: No.
Todd Orston: But, what does that mean? If a judge feels that strongly, but is reluctant to put you in jail, why is it unbelievable to think that maybe that court would say, "Maybe a change of custody is appropriate right now." Again, but we're talking in extremes. Is a change of custody going to be the outcome in all of these situations? No. But, is it possible? Yes. Is jail possible? Sure. How about this? How about a situation where this is not the first time you've been held in contempt for interference with parenting time. And the court has issued an order, you're in contempt, you withheld. You're in contempt again for withholding parenting time.
Todd Orston: And now all of a sudden COVID comes around and you're going to use that as some excuse, but there's no justification, there's no reasonable justification for limiting the other parents contact with the child, I.E., bad social distancing and like what we were talking about before. Could the court then say, "Yeah, you're going to jail. I warned you in the last hearing if you did this again, I'm putting you in jail. So guess what, pack a toothbrush."
Leh Meriwether: So, these are all great points. I think going back to what you said, Todd, common sense. And if you are so wrapped up in the emotion and you're struggling, call your lawyer. You can call us, if you're in Georgia, (678) 879-9000. You can call us.
Todd Orston: Or in Florida.
Leh Meriwether: Or in Florida. We have an office in Orlando. And yeah, if you call that, we can route you down to Florida. I can't remember Florida's phone number right now.
Todd Orston: No, just call it (678) 879-9000 number. And that goes through our intake department. And then we can put you in touch with one of our Florida attorneys.
Leh Meriwether: Yeah. All right. And lastly, this is for Georgia. We have all the emergency orders from all the different counties up on our website. If you go to mtlawoffice.com or atlantadivorceteam.com, in the banner at the very top where it says read more, I believe it's orange. You can't miss this. It's the very top of the page. Click on that. It'll take you to the page. There is so much information there so you can scroll down, find your County, find out that the current orders, if you're in the middle of litigation or even if there's questions on, maybe you've got someone who's right now denying you parenting time and it's been a few years since you've had to use an attorney.
Leh Meriwether: Your case is over, but the other side's denying it. Making some claim. You can always go there and download that order and pass it onto the other parent. Say, "You're trying to claim that I can't see my children because of this order. Well, it's been amended. The governor's order has been amended. Here's a copy of it. I'm coming over this afternoon to pick up my kids." So it's so much information there for you to get access to.
Todd Orston: Yeah. But, be proactive. We tell people this all the time and I will quickly repeat again what I say all the time. Don't be reactive, be proactive. Don't sit back and decide I'm not going to do something right now. I'll do it later. For yourself, you want to act sooner rather than later to protect your rights. But even for the court, you want to make sure that the court understands how serious you are, how serious the issue is. And even if that means you file something on your own with the help of an attorney, whatever, but you don't get in front of a judge for a month or two, at least the judge then can say, "Okay, this was serious enough that you acted, you looked, you tried to work it out on your own, that failed, you came to the court for assistance. Sorry, we couldn't get you in for a hearing sooner." But, then at least you've done everything possible to establish that you are trying to protect your rights and the other party is acting badly. So, act sooner rather than later.
Leh Meriwether: And I'll add this one last point. The courts take orders seriously. They're going to take, obviously their orders, they're going to enforce them, they take them very seriously. But, even orders from the governor, executive orders, they're also going to take those seriously. So, like the one already did. The person wasn't following the social distancing orders and the court found that that posed a potential risk of harm to the minor child and said, "Nope, custody is going to stay with the parent in North Carolina for the next two weeks." And I'm sure that if that other parent here in Georgia continues to behave in that manner, that may be extended. So the courts are going to take all orders seriously, they're going to prioritize the parenting time orders, and their chief goal is to focus on the best interests of the children.
Leh Meriwether: So, the best interest of the children is to see both parents, barring that, the health of the child. So if there's someone sick in the home, of the COVID-19, that might be an exception. Hey look, your new wife or your new husband has COVID-19 in the house. I don't think it's good for our children to go over there in the middle of this. Y'all should stay quarantined so they don't get sick. And most parents, thankfully, are going to say, "You know what? You're right. In fact, that's why I called you to tell you, don't bring our kids over this weekend because we're both sick. Or one of us is sick, let's just let it run its course. And can we please set up FaceTime or Zoom or Skype." Set it up so that the other children, and that's the ideal case, I'm hoping as many parents can co-parent in that manner for the sake of their kids. That's what needs to be done.
Leh Meriwether: Just going back to being proactive. If you think someone's getting ready to come, I mean how much quality of a relationship, a co-parenting relationships, do you create when you say, when you pick up the phone, let's say it's Thursday and you're supposed to get parenting time Friday evening. And you pick up the phone Thursday evening, you call your ex spouse and say, "You know what? My husband, my wife, they're coughing a lot, they're sneezing. I'm worried they're showing the symptoms of COVID-19. I want to see the kids so bad. But, I don't want to expose them to this. We're going to go get checked out. I'm calling you first. Can we schedule a Zoom call or FaceTime, whatever it may be for tomorrow, so I can talk to the kids? Just in case, we're going to go to the emergency room. We'll get things checked and if it. And if she does have it or he does have it, I want to tell them or maybe we can tell them together that they need to stay over there and that I'm still healthy."
Todd Orston: It's prioritizing the children's needs over yours. And again it can be difficult, especially if you have a difficult co-parenting relationship. I get it. I get it. It feels like the other party is winning, is taking advantage of a situation, that you're losing out on something that you're entitled to. And I mean, I'm not trying to make it sound like a competition. This is a child. All right, but I have kids. Leh, you have kids. We cherish the time that we spend with our children. And if we were in a divorce situation, absolutely, I would be very protective of that time with my kids.
Todd Orston: But, if I were sick or potentially sick, or somebody in my home was potentially sick, I would like to believe that I'd be able to put aside any anger I might have for my former spouse, the mother of the children, and say, "Okay, you know what, stay over at mom's right now and I'm going to go get checked out. I want to make sure everybody's healthy over here. But, we'll video conference, I'll call you. Hey, don't worry about it, but I just want you to be safe."
Leh Meriwether: Yep. All right, well I don't have anything else. I could talk on and on, but I think everybody would get bored.
Todd Orston: I'm already bored.
Leh Meriwether: I knew that was coming.
Todd Orston: No, I think we've covered it all.
Leh Meriwether: Yeah. So don't forget, check out, if you're in Georgia, mtlawoffice.com, atlantadivorceteam.com will also get you there as well. You can listen to past episodes of this show or read the transcripts at divorceteamradio.com. Of course, you can always hit that subscribe button if you're listening, whatever podcast format you have caught this show with, we'd love it if you hit the subscribe button so you won't miss future episodes. And if you're getting a lot of out of the show, we would love it if you would post a five star review wherever you're listening to this so that more people can get access to this information.
Leh Meriwether: Hey Todd, before we wrap up, is there anything else you wanted to share with the listeners?
Todd Orston: Yeah. The only other thing I would add is that if there are topics that you want to hear about, let us know. Send us an email, because there are a lot of things maybe we aren't thinking about. We will go ahead, we'll do either a 30 minute show on it or we are also doing two minute video updates. And we may deal with the issue there. But, the bottom line is, tell us. Tell us what it is you'd like to hear us talk about, and we're going to try and make that happen.
Leh Meriwether: So you can reach Todd at email@example.com. You can reach me at firstname.lastname@example.org. You can also get our emails on the website, so if you go to the website and look up attorneys, you can find us there. And our email addresses are on the website. So, definitely email us if there's something you want us to talk about. Let us know. And until next time, thanks so much for listening.