How Coronavirus is Affecting the Family Court Process and Other Questions!
A Summary of Probate and Family Court Standing Order 2-20 and Related Issues
How Long Will My Divorce Case Take?
The court process can seem to take an incredibly long time when you have issues that are causing trouble and instability in your family. Now, with the additional chaos and uncertainty that has entered the picture due to the outburst of the coronavirus, the Family Court process has asserted orders that could make that process take even longer for many people.
The newest Family Court order, which went into effect on March 18, 2020, closed the Massachusetts Family Courts to the Public until at least April 6, 2020, and the majority of hearings that were already scheduled between now any April 6, 2020, will not be rescheduled until after May 1, 2020.
Is There Any Way I Can Have My Case Heard?
There is an exception during this closure period for emergency issues. These include any restraining orders, harassment protection orders, or vacate orders, among other specific cases, which we will address in a minute. The hearings that will take place will be attempted to be done virtually as often as possible through the use of videoconferencing or telephonic hearings.
How is a Virtual Hearing Going to Take Place?
As this is a brand new procedure, as of March 18, 2020, this remains to be seen. We envision deli-ordering similarities, where you are told to be available at a certain time and then they call you when your number comes up. But, how it actually works out isn’t quite clear yet.
It seems like the only virtual hearings they are going to have are ones that fall into the emergency category. If both sides agree that a hearing can be held virtually, there is a chance that the Court could agree to hear you sooner than May 1, 2020. Our guess is you will have to contact the clerk’s office to try to have a virtual hearing scheduled if you both agree to this.
For emergency situations, you can file in court, but then it’s unclear whether the virtual hearing will take place while you’re still at court – whether they will have a separate room for you to jump on the phone or a video-conference with the Judge or whether they will schedule something for a little later.
What if I Need to File for a New Divorce or Custody Case Now?
You’re in luck! You can still go ahead and file complaints, petitions, or motions during this Court closure period to get them docketed (when they get put into the Court system), even if it doesn’t fall into what they consider an “emergency”! However, any new matters will not be scheduled until after May 1, 2020. The sooner you get your case filed, more than likely, the sooner after May 1, 2020 you will be able to have your case heard. Plus, the time frames that are always at play with any divorce or custody case still remain the same. If you need a modification, you can only ask for a retroactive change back to the point that the other side is served. So the sooner you get your case filed, the better chance you have to get relief dating back to when you really need it.
Is My Case an Emergency?
So let’s talk about the emergency exception. Whether you have a new case or you have an issue that is getting rescheduled, if there is an emergency, you can be heard in Court sooner than later.
You can still apply for a restraining order, a harassment protection order, or a vacate order at Court; however, the hearing on those will be held virtually. Here’s what we don’t know yet – Usually, if someone obtains an emergent protective order through the police department while the Court is not open, it expires on the next business day. If someone obtains the initial order through the Court, the return hearing is usually scheduled within 10 days from the date it’s obtained. Watch the restraining order document to see when and how you are supposed to defend yourself if you’re served with an order. If it’s not clear how you are going to have your hearing, ask the police officer that serves you. Either way, make sure you obtain an attorney as quickly as possible!
The coronavirus should not and does not require you to consider living with abuse or with fear of abuse simply because it’s a pandemic. You have a right to be safe, and the Courts are open for you.
Living in close quarters day in and day out under high-stress means things are very likely to get a little testy. If your spouse starts threatening a restraining order when you argue, make sure you call us asap so we can help you keep yourself safe and prepare a defense before it’s even necessary.
There are a few other types of cases that the Family Court has deemed to fall within the emergent classification. Those are:
- Do Not Resuscitate/Do Not Intubate/Comfort Measures Only; Authorization for Medical Treatment; Order for Antipsychotic Medication;
- Petitions seeking appointment of a temporary guardian or conservator;
- Petitions pursuant to protective services;
- Health Care Proxy actions;
- Petitions/Motions for Appointment of Special Personal Representative;
- Petitions for Marriage without Delay;
- Complaints for Dependency (SIJS) if the child will turn 21 prior to May 1, 2020;
- All requests for Injunctive relief;
- Motions for Temporary Orders where exception/exigent circumstances have been demonstrated; and
- Contempt actions where exceptional/exigent circumstances have been demonstrated.
Also, if you did have a trial or evidentiary hearing scheduled any time between March 16 – April 6, 2020, you can file a motion asking for the trial or hearing to take place sooner than May 1, 2020, if you can show there is an exigent situation that supports it being heard sooner than later.
I Have a Restraining Order That Expires Before May 1, 2020. What Do I Do?
If you have a protection order for you or against you that expires after March 16, 2020, contact the Court to find out if they are going to have the hearing virtually. If you’ve already had some sort of hearing on the Restraining Order and it’s expiring after March 16, do not think that order expires just because the order says it expires on a certain date. YOUR RESTRAINING ORDER IS AUTOMATICALLY EXTENDED until the Court reschedules your hearing! Even if the other person says it’s okay to contact them or come over because the order expired – DO NOT DO IT! For now, that restraining order is still valid, even if the order says it expires after March 16, 2020 and the date has passed. You can land yourself in jail, so better to be overcautious here.
I Have a Temporary Guardianship Order That Expires before April 6, 2020 – What Do I Do?
The Court is automatically extending any orders that expire between March 18, 2020, and April 6, 2020. For DCF cases, the orders will be extended for 45 days from the date it expires. For Treatment Plan cases or guardianship/conservator orders, the order will be extended for 60 days from the expiration date. For all of these, if you can demonstrate that there are exigent circumstances that justify the case being heard sooner, you can file a motion and the Court will make a decision based on the pleadings only (meaning there will not be a hearing to determine whether there should be a hearing.)
Do I Have to Turn My Children Over to the Other Parent During This Time?
If you have an order or judgment that dictates what the parenting time schedule should be, then that order remains in full force and effect unless you go into court and get a different order. Do NOT withhold your children from the other parent solely because you don’t want them to go or you’re afraid that they “might” not be healthy.
When Can I Not Send My Children to the Other Parent?
If, and only if, you, your child, or someone in your household is displaying symptoms that correspond with the coronavirus symptoms or you know you, your child, or someone in your household has been directly exposed to someone who has tested positive to the coronavirus, then you should let the other parent know immediately. If you are going to withhold the children, agree on some time during the summer that the other parent can make up the time that they are missing. If you only withhold your children because you’re afraid of what could happen without something more, you risk being held in contempt if you withhold the children.
I Was Scheduled to Take the Mandatory Parenting Education Course before May 1, 2020. Now What?
Although the class is mandatory, all parental education courses are being suspended until after May 1, 2020. If you have a complete agreement in order to have your divorce move forward and the only thing you need to do is your parenting education program, let your attorney know and your attorney can request that you obtain your divorce but are able to submit your parenting education certificate to the Court at a later date.
I Cannot Afford an Attorney and Wanted to Use the Lawyer of the Day Program – Now What?
Unfortunately, the lawyer of the day program is suspended until after May 1, 2020. There is currently no plan to have that program move forward virtually. Our Firm does offer legal strategy sessions that you can purchase for one to four-hour blocks. Sometimes, being able to talk everything through with an attorney who practices family law 24/7 is extremely helpful and a lot more affordable than having to come up with a retainer!
I Was Ordered to Complete Community Service. Will I go to Jail if I Don’t Complete It?
You’re in luck right now because your requirement is suspended until after May 1, 2020.
I Was Ordered to Undergo Random Drug or Alcohol Screening – What do I do?
First, DO NOT DO DRUGS OR INGEST ALCOHOL if you have been ordered to refrain and undergo drug or alcohol testing. That being said, if you’ve been ordered to do this through the Massachusetts Probation Service (MPS), the testing is going to be suspended at the time being. If you have been ordered to do this testing with another company, you do still have to keep going. If that company stops doing testing, reach out to the probation department immediately! The best thing to do in these types of situations is always stay in touch with the probation department and adhere to their advice so you don’t end up in deep trouble or have your kids taken away from you! It’s not worth it just because you’re not getting tested.
What’s My Next Step?
This is a tough time for everyone. There is a lot of fear, uncertainty, and stress. If you determine that you’re ready to get your life moving forward – maybe that’s by filing for a regular parenting schedule or for joint custody of your kids – or maybe you’re ready to file for that divorce you’ve been putting off – give our firm a call at 774-314-4725. We have extremely talented, passionate, and amazing attorneys ready to help you move toward a life that, when you’re sitting at home because you’re quarantined, you are happy to be there.