The COVID-19 pandemic is changing the way family law attorneys practice law and serve our clients. Family lawyers must be willing to accept, adapt, and apply new methods of court appearances to current and differing procedure. Here are some foundations to help you better serve your clients.
By Matthew P. Barach, Family Law and Appellate Attorney
There’s no question that the COVID-19 pandemic has changed the way family law attorneys practice law and interact with clients. In-person meetings with clients and arguments in the courtroom are being replaced by telephonic hearings and the use of Zoom. Matters are being delayed due to the slowdown in courthouses and lawyers are adjusting to the “new normal.” But stressed-out clients need our services even more today and family law lawyers need to adapt and thrive in the current environment. Here are some foundations to help you lead the way and better serve your clients.
How COVID-19 Has Changed the Practice of Family Law
Despite the Pandemic, the Rule of Law Still Reigns
The rule of law still matters and remains paramount in the face of COVID-19. As Massachusetts Chief Justice of the Probate Court, John D. Casey wrote in the early days of the current pandemic: “It is times like this, when society faces threats once thought unimaginable, that the rule of law is more important than ever.” (Open Letter Regarding Co-parenting During COVID-19)
Clients should be informed that courts will continue to enforce existing parenting time schedules. Agreements should be followed despite the interruption due to the pandemic. For example, if school is going remote –the fact that school is not being conducted in-person—should not affect or alter the parties’ current parenting time. To put it another way, parenting time should be consistent with pre-COVID days. Likewise, the consideration of what constitutes an “emergency” remains the same for the Probate Court today as it was in the past.
In addition, it is incumbent on family lawyers to seek practical and creative solutions to resolve conflict, especially during the current disruptions in the courts. What happens if a parent is a first responder with potential exposure to COVID? Do they lose parenting time? The answer should be to ensure consistent parenting time for the child and agreements should remain in place or altered without major disturbance to parenting time. Advocates should restore calmness in the face of high anxiety.
COVID-19 Should Not Create A New Body of Law
COVID-19 itself should not create a new body of law, meaning the application of legal principles and precedents should not be altered by the effect of the pandemic. Questions such as whether property division should now merge rather than survive; whether alimony or child support agreement should be self-modifying; and whether discovery should be delayed were all answered firmly in the negative.
Remember that courts continued to operate during times of war and global depression. Perhaps, at some point, there will be new legislative mandates, but at the present time we need to continue to follow our statutory requisites and be consistent with how we have approached legal issues in the past. For example, when we draft marital agreements pertaining to property, we look to provide finality and a clear break for our clients. We need to continue to do so.
Further, issues related to children should remain squarely focused upon what is in the best interests of the child. If a parent has lost parenting time due to the pandemic, the inquiry still remains not on the parent per se, but upon what is in the best interest of the children. For example, does it make more sense to have the parent make-up time in shorter blocks of times? It is more complicated than just saying “I lost three weeks, and three weeks needs to be made up”. This may be especially true when children do/or do not go back to school. An examination of who will be home with the children and helping with schoolwork will need to be considered.
Family Lawyers Must Find Alternative Ways to Resolve Issues
Alternative means of settling matters and manners of practices should be adopted to ensure that cases are moved forward during these strange days. There are many alternatives depending on the situation for practitioners to explore utilizing. Many jurisdictions have rules in place for parties to present issues on the “papers.”
In Massachusetts, Rule 78 is an obscure, but important rule to consider employing to navigate the present environment by allowing written submissions to be presented for ruling by the court thereby negating a court appearance for the parties. Rule 78 allows: “The court… to expedite its business, the court may provide by order for the submission and determination of motions without oral hearing upon brief written statements of reasons in support and opposition. The court may require the filing of briefs, in such form and within such time as it may direct.” (Mass. Dom. Rel. P. Rule 78.)
Rule 78 permits judges to hear contested motions based on the written submissions of the parties only thereby avoiding the need for a two-party hearing. It can be effective for discovery motions to be heard and disposed in this matter and judges will welcome these submissions in the right circumstances. Practice tips include that you should ensure that everything you want to say to the judge is found within your written submissions. Likewise, you should inquire with your judge whether or not he has reviewed your materials or will do so after the hearing and you should tailor your presentation accordingly.
The Family Law Bar should also consider the use of retired judges to mediate and resolve cases. Binding arbitration by way of a special master appointment should be considered. With the lack of in-person trials for the foreseeable future, alternative means of resolving or even trying matters should be considered.
COVID-19 Has Changed the Practice of Family Law: Zoom and Telephone Hearings are the New Normal
The Family Bar should also adapt to new means of hearing matters before the court. Zoom and telephonic hearings are now the new way of attorney life. It is critical for lawyers to adapt to this new way of conducting business. For Zoom hearings, keep in mind that although not perfect, it will be easier for the judge to read people than a telephonic hearing. You must, therefore, remind your clients that you are still in court and you should inform them to replicate the same appearance that he or she would in a courtroom. Clients should be instructed to not only dress appropriately, but sit in a chair, with proper lights and appropriate decorum. Lawyers should prepare clients in advance as they would if they were heading to the courtroom and be mindful that is harder to control clients when separated by electronic megabytes and remote systems. Most importantly, clients are afforded rights and those should not be lost due to the pandemic.
In the end, the role of the family lawyer has not changed – it continues be advocacy on behalf of clients, even in this uncertain world. Family lawyers must continue to apply and uphold the statutes and precedent pertaining to all of the issues presented by clients.
Family lawyers must also be willing to accept, adapt, and apply new methods of court appearances to current and differing procedure. It may not be easy, but like everything, these strange days will pass.
Considered by many as “the fixer” in Massachusetts family law, Matthew P. Barach is an esteemed family law trial and appellate attorney. He is the Founder and Principal of Barach Family Law Group, LLC, a boutique law firm, and author of The Family Law Guide to Appellate Practice (ABA Book Publishing, 2019). With over 20 years of family law experience, Matt regularly appears before the Massachusetts Appeals Court, the Massachusetts Supreme Judicial Court, and the First Circuit of Appeals. His prestigious career includes winning two landmark family law cases in the Commonwealth pertaining to the new Alimony Reform Act and child custody – removal of a minor child from the Commonwealth (George v George and Miller v Miller). www.barachfamilylaw.com
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