Family Courts And Covid-19: What Do I Do About My Divorce Or Custody Case When The Courts Are Not Open To The Public?

On April 27, 2020, the Massachusetts Supreme Judicial Court issued a new order in relation to the state’s court’s operations during the pandemic of Covid-19 that will take effect on May 4, 2020. In this order, the Family and Probate Court will continue to conduct business, but the physical courthouse will remain closed to the general public with an exception for emergency matters that cannot be resolved virtually until June 1, 2020.

DOES THIS MEAN COURT IS NOT RUNNING?

No, just because the court buildings are not open to the general public, that does not mean that they are not running at all. In fact, the courts are still processing new cases, hearing emergency issues, and scheduling cases for hearing that are appropriate to be heard via either teleconferencing or videoconferencing. The courts are taking safety precautions with more people working from home and less people actually going into the courthouse to work on a daily basis; however, there are still people in the courthouse daily.

EMERGENCY ISSUES ARE STILL BEING HEARD BY THE COURT

If you have an emergent issue that cannot wait to be heard, then it is possible to have that matter heard virtually. This generally has required filing a number of documents along with a motion for a telephonic hearing and an affidavit explaining why your case requires an emergent response.

NON-EMERGENCY ISSUES ARE STILL BEING HEARD BY THE COURT

If both sides agree, the Court can conduct a virtual hearing on a case even if there are not emergent issues. Not all cases are going to be allowed to be heard and each courthouse is handling the scheduling of these cases slightly differently. However, unless things change with the extended court reductions in its staff, it’s more likely that any non-emergent issues are not going to be scheduled until after the court opens back up to run in the normal course of business.

NEW CASES CAN STILL BE FILED

Prior to Covid-19 causing the justice system to come to a screeching halt, it was not unusual for a new case to take anywhere from 1-4 weeks to be docketed once it was filed (again, depending upon what courthouse the paperwork was being filed at). Every court is still accepting new pleadings, even though they are not necessarily scheduling any hearings relating to those cases at this time (unless it falls under the emergency category). This means that, if you are looking at filing for divorce or custody, then you can still go ahead and move forward with that so everything is ready to go once the court does either start hearing more cases virtually or opens fully.

COURT BACK-UP

When the courts initially closed to the public in mid-March, just about everything that was scheduled to be heard was automatically taken off the schedule and either rescheduled and given a new date or put in a “hold” type of status to be rescheduled at a later date. As cases continue to be pushed back further due to continued court closures and a reduced hearing schedule, it’s not apparent whether the court will reschedule things in the same order as they were to be heard before with newer cases being heard on a “first-in-line, first-in-time” type of order or whether upon the court opening up, it will be a luck of the draw regarding who gets heard sooner rather than later.

Because of this, it’s still a better choice to go ahead and get your case filed so it’s at least gone through the docketing process, which is necessary when a case is first starting. Also, in the Court’s eyes, dates aren’t always preserved unless the case has been filed or the summons corresponding with the case has been properly served upon the other party. The date a divorce is served can be very important in divorce cases, so if you’re not sure if waiting to file your impending divorce could potentially hurt you legally, please contact a divorce attorney to discuss the pros and cons of filing now rather than waiting for the courts to open up to the general public again.

HOW DO I HAVE A TELEPHONIC HEARING?

Generally, to request a telephonic hearing, you need to file the motion that you want to have heard (or the entire complaint if you don’t already have a case pending) along with a motion for a telephonic hearing. If you’re moving forward on an emergency basis, you will also need to file an affidavit. There is quite a bit of paperwork that needs to be completed to try to get a case before a Judge right now, but it can be done.

WHAT IF I NEED A RESTRAINING ORDER?

Just because your or your abuser have no where else to go, does not mean that you should have to put up with physical abuse or the threat of physical abuse. We have received a number of calls from people who are victims of domestic violence who are afraid to call the police to report their abuser because they feel they do not have anywhere else to go. If your partner, or anyone in your household, is abusing you and you obtain a restraining order against them – YOU are NOT the person who will be required to leave your home. Your abuser will need to figure out what to do and where to go. That is not your fault. That is their own fault for putting their hands on you or threatening to do so.

WHAT DO I DO IF I AM SCHEDULED FOR A TELEPHONIC HEARING?

If you are scheduled for a telephonic hearing, the court will provide you (or your attorney if you are represented) with the number and time to call into the court. At this point, you have probably been a party to a Zoom conference call. There are always some difficulties with the technology or being able to hear everyone. Be patient if one of those problems arise during your hearing. If you cannot hear what it is going on, it’s important to speak up because you do not want to miss anything important. Otherwise, unless it is your turn to speak, you want to make sure you are not talking over anyone else and waiting to take your turn. If you are represented by an attorney, then your attorney should be the only one talking. We have seen more people who are represented mess up their own cases by talking when they shouldn’t have. Let your attorney do their job.

Before Covid-19, it could take weeks to get an order from the Court if your case was presented to the Judge. Now, we generally are seeing orders issued very quickly after the hearing.

IS MEDIATION AN ALTERNATIVE TO WAITING FOR THE COURT TO RE-OPEN?

If you are in a situation where you have a divorce or custody case pending or you are looking at filing a case, there is always the option of mediation. Mediation is a process of trying to come to agreements on any issues that are necessary to resolve the underlying litigation. This is done between the two parties with the help of a neutral third person (the mediator) with the goal being a full settlement as best case and at least having some of the issues worked out as an alternative.

We have attorneys in our firm who can serve as mediators so long as you have not utilized us individually for your case in any way. It is important for the mediator to be completely neutral and for the parties to feel comfortable telling the mediator things that could help the mediator understand the reasoning behind why certain issues are more important to allow for creativity in creating a resolution that is a win-win for both sides. This cannot be achieved if one person is afraid of saying something that can be used against them later within litigation.

The mediation process is a fantastic way of moving toward obtaining a complete resolution of all the issues that need to be addressed within your divorce or custody matter with the possible delay in being able to get before a judge. Video conferencing allows for mediations to move forward in a way that allows for the face-to-face communication, allows for individual break-off sessions, and keeps all people involved safe during this health crisis.

If you need help with filing a complaint for divorce or custody or with moving forward to reach a resolution through the mediation process, please feel free to call our firm, O’Connor Family Law.