Pennsylvania Family Lawyer Maria Cognetti discusses custody, visitation, and running a family law practice during the pandemic with Family Lawyer Magazine‘s Editorial Director, Diana Shepherd. A Fellow, former Fellow of the Year, and past-president of the AAML, Maria is the co-creator of the AAML and AFCC’s “Advanced Issues in Child Custody” national conference.
Custody Conflicts and Maintaining a Successful Family Law Practice During COVID-19
Diana Shepherd: I’m Diana Shepherd, the editorial director of Family Lawyer Magazine and Divorce Magazine. Joining me today is Harrisburg Pennsylvania Family Lawyer, Maria Cognetti, who’s here to discuss custody conflicts, visitation, and the practice of family law in the time of COVID-19. A Fellow and past-president of the American Academy of Matrimonial Lawyers, and a diplomat of the American College of Trial Lawyers, Maria has received countless awards from national organizations over the years. The co-creator of the AAML and the AFCC’s “Advanced Issues in Child Custody National Conference”, Maria is going to apply her extensive experience with complex child custody issues to the problems created by COVID-19. Maria, welcome – and thank you for taking the time to be with us today!
Maria Cognetti: Thank you for allowing me this opportunity.
I know you have a lot of experience with complex custody and visitation issues. How has that changed? Or has it changed, now that you have all of the extra issues that come along with the pandemic?
Everything’s changed. I think it’s changed across the board for all of us, clearly in the area of custody or the folks who are involved in a custody battle, or even just what was previously a peaceful custody arrangement. They are all stressed out as the rest of us. Some of them have ill motives in wanting to keep the kids from the other parent and some have genuine concern over who can care for the child better. It has really thrown their world into turmoil.
What kind of specific concerns are you seeing and what advice are you giving to people? I’m assuming that you can tell me if this is correct or not – but I would think that there might be one parent who might not think that it’s such a bad thing for the kids to get together with their friends. They’re bored, so why not? What could it hurt? Then the other parent absolutely freaks out at this and says, “no, that is not parenting. That’s not social distancing. I want full custody of the kids.” Are you experiencing any of that happening?
You must have talked to one of my clients recently. That’s almost exactly what the complaint was. “You let Little Johnny go outside and play with his friends, and therefore you shouldn’t have him. I am the only parent who knows what’s best for our child.”
Then you get a response from the other side that says, “well, we may have let him go outside and play with little Johnny but she just let him ride his bike over to grandma’s house and play with the cousins.” The bottom line at this point is to try and get these people to understand what’s a valid concern and what’s not a valid concern, and we are hampered a little bit in that area because being in an area of the country where we have a lot of small courts, we have a lot of county courts. So I practice in the middle of Pennsylvania, in about 20 different counties. And I can tell you, each of the 20 counties has different rules right now, ranging from a county that has actually said, if you are a primary custodial parent, you keep the child. If you were in a shared custody arrangement, whoever had the child when the stay-at-home order came out keeps the child. That’s one end of the spectrum. What most of the courts are doing is saying, “we’re not going to get involved in your custody situation until there’s a valid concern like harm to the child.”
What really is disturbing is what’s going on not just here, but across the country where concerns are being raised by parents, where the other parent is a first responder or a medical provider. The other parent wants to say “well, you know, you’re going to take care of sick people, you shouldn’t have our children until this is over.” That’s tough. I’ve seen two different cases. One where the parents said, “this is my job, it’s my livelihood. I’m here to heal people. I’m cautious.” And in the end, thankfully, the court agreed with her although they had temporarily taken away her kids. In another case, the health care provider said, “I can’t do this to my kids. I’m going to have to temporarily give up my job.”
That’s a decision people shouldn’t have to make.
It is my understanding that the courts are closed. What happens during this time when it’s closed and you have an emergency order?
That’s a good question and you hit it on the head, the courts are closed physically, the buildings are generally closed. What we have here – and I think across the country – is the courts are always open to emergencies. In my area, the two bases for emergencies in this line of work are if there’s a protection from abuse action, and or whether there’s a custody emergency. Pretty much all they are hearing right now are custody emergencies where one parent thinks the children should not have to go or one parent files to say, “I should have custody right now and she’s withholding it.”
They are attempting to do everything by video conference. They are doing some stuff in a courtroom, but that’s very difficult for them to arrange because there’s got to be that massive social distancing in the courtroom. But most of these matters can actually be determined by a video conference.
Because we’re on the topic of the courts being closed, when they reopen, I presume that they’re going to have a massive backlog. I also presume that they’re going to be dealing with truly emergency cases like domestic violence and so on. Even if you had had a hearing date for April 5, when could you expect to get another date? What do you think is going to happen? I know I’m asking you to look into a crystal ball a little bit, but you must have a little bit of a better idea than we do.
Two things. If it’s an emergency, if it’s any kind of physical violence that’s being heard – none of those are being pushed back. The real problem comes down to the regular custody trial or the regular divorce trial. When they send you a notice saying your hearing is continued, they’re not setting a new date. So one of the things that we have become concerned with is whether there are abuse cases or not, there’s going to be a massive amount of backlog. So is my case that should have been heard during COVID-19 now going to be pushed back past the cases that were already scheduled for May, June, and July? That’s something that we’re dealing with the courts with – we are trying to figure out how to do it as equitably as possible. Most of the counties have committees where a group of attorneys meet with the court to try and work through these issues and they’re doing their best. It’s not a good situation.
How do you meet with the court? Do you physically go into the closed court and meet with the judge? Or do you do video conferencing? How would you do this?
We do Zoom calls. It’s a great way to do it. It’s an organized call. The other day, one of the counties I practice in had 65 people on a Zoom call. That one was more for the judges, who were socially distanced, to communicate with as many people as wanted to get on about how they were going to handle things in general. But for small committees that might be 6 or 8 or 10 people, Zoom calls are really an easy way to do it. I’m doing all my client meetings by Zoom, especially with new clients, because they still want to meet you. And I find that that gives them a better sense of hiring someone, or at least asking you questions and putting some faith in you if they get to talk to you like we are
The emergency motions that you are having heard, are you also doing that through Zoom? If there’s a domestic violence case, how would the judge be hearing that?
I don’t do domestic violence, but I doubt they’re being done by Zoom. In every courthouse that I know, there’s always a judge on call. There’s a judge physically in the courthouse. I would assume that that’s how they’re handling them.
So for the custody that we talked about – people are rushing to try and change custody, are they physically going into the courthouse to do so?
In those cases, no. What most judges are telling me is when they get a petition that says “I don’t want to send little Johnny” or “I want to be able to pick up little Johnny,” the first thing that we’re doing is trying to get both attorneys on the phone and say “I have a really, really tough case where my client’s child is on the west coast, and he should be getting her immediately. Counsel and I worked out that we don’t want to dump it on the court, so keep her out there until it’s safe and give us additional time when she comes back.” And that’s the kind of thing that courts are trying to work out. It may not be a perfect world, but the courts are doing that.
The other thing that they’re doing is taking oral arguments from the attorneys, and they aren’t able to do witnesses. They’re trying not to do that because that’s not really a record hearing. But I think they’re trying to use the Zoom or video conference mechanism to try and get folks to focus on settling these matters.
So are the stay-at-home orders slowing down the litigated cases?
Oh, yeah, definitely. The fact that the courts are closed and everything is now getting pushed back has made settlement much tougher, because oftentimes, what’s really helping people come off of their position a little is the fact that if they settle it, they get out of the emotional burden that would come with a trial. They get out of the economic cost that would come with a trial. I had this case, it was just about to settle. Everything got put on hold. Opposing counsel said “see in a few months,” because they’ve lost their incentive to settle. So that’s made it much harder to settle a case.
Are you seeing that there are still some cases that want to settle?
I settled a case this morning. A lot depends on the two attorneys, whether they have a good working relationship and whether everybody wants to get past the “I gotcha” kind of theory.
And perhaps some clients – maybe not yours, maybe the other side’s – are being driven by emotion. Let’s face it, all of us have a little bit of our amygdala in charge of us right now, because we’re just getting panicked from the news. And so people may be in a little bit more of a highly charged state. What, if anything, can they do about that so that you can move forward and settle?
I’m not sure you can do anything about that. Generally speaking, without regard to settlement, we all have an obligation at this point to try and help our clients through this. Sometimes it’s hard to remember that the stress that I’m feeling of trying to keep a law practice running, or the fact that I’m sheltering at home by myself and keeping my staff happy, we have to put that stress aside and realize that when our clients are being difficult, or sometimes nasty, that they are going through this too. And we have to be cognizant of that. We have to find ways to help them out. I know that we’re doing as much as we can. I have a wonderful staff. We are trying to answer client emails in the moment. My paralegal and I are pretty much 24/7, unfortunately, but they need to know you’re there. And that’s helpful in itself. They need to know that they can call you with a question or email with you with a question. I offer my clients even to do video conferences, even though they already know me, because sometimes that gives them a little more comfort.
Do you have any further tips for lawyers who are just finding that none of their cases are settling that everything is stalled right now? Or are there any magic tips?
No, there’s no magic. The only way you’re going to settle that case is by your client giving in more. And frankly, if you’ve got a side that’s entrenched because they feel that they have the upper hand, you’re not going to settle that case. The hope is that when it gets rescheduled, and when it gets closer to the trial date, settlement will come back on and hopefully you’ll get what you had hoped to have a month ago, but there’s no magic there.
Earlier on you talked about some community calls that were happening, possibly with the court and some attorneys. Do you have any other sort of community going for people? There are lawyers like you who are in isolation by yourself. It’s not only clients who get emotional at times like this. Do you have any sort of community support for lawyers who may be going through a rough time right now? Including possibly thinking, “am I going to lose my practice?”
Well, let me tell you what I’m part of which has been an immense help to me. There’s a group of attorneys called the American Academy of Matrimonial Lawyers, and there are state chapters in almost every state. The Pennsylvania chapter started many weeks ago to do what we call a Happy Hour Zoom call every day at 4:30. And I have to tell you, I’ve missed one call in all that time. 4:30 comes and I think to myself, Oh, God, I have so much more to do. I can’t get on the call. and then I get on the call and I’m so glad I got on the call because there’s a core group of us that are always on. And then every day, there’s a couple of stragglers who realize, Oh, this sounds pretty good. We get on and we talk about everything. We exchange ideas on how to qualify and get small business loans, we talk about what custody situations are like in the east side of the state and the west side of the state, and I feel so connected to these people. It’s a fun call. We never talk about negative stuff. And these aren’t necessarily my 10 best friends in the state. But right now, I would say they’re close to my 10 best friends in the state. We look forward to these calls. And now I see it more and more catching on because local county bar associations have now started the same thing where there’s a countywide Happy Hour. Most of them are doing it at 5:00 where you can hook in through Zoom. And you get on and you can stay on for five minutes, or you can stay on for the whole hour. And you connect with all those other people who are stuck in their homes or wherever they may be. It’s the best thing that anybody could have thought of. I love the guy in Pennsylvania who started it because it’s just been amazing for those of us who get on the calls.
Can you talk for a minute about your own situation and staff? How do you keep your staff and other lawyers you work with inspired and motivated? And how do you provide support if necessary?
Well, one of the things that I instituted – and maybe because of my experience with the Academy group – but we now do daily, staff Zoom calls at noon. If you’re busier and you don’t feel like getting on, you don’t get on. But all of my staff are invited to get on. Sometimes they’re five minutes; sometimes they’re half an hour. We talk about assignments, we talk about questions, some of them are working from home, some of them aren’t working from home. And basically, we kind of virtually eat lunch together. Sometimes they’re really stressed and I have one or two that feel the stress more. One day we had a call and one of my gals really broke down. She’s the one who I would consider is the highest risk person, and she was crying. We didn’t end that call that day until I had everybody laughing. Because I was not going to let them get off with that being the end of the call. And my staff knows me. I’m very, very serious. I’m a very tough boss. I am also the office jokester no matter what’s going on in my mind. And I said it to her, “Patti, sometimes I cry. But you know, we’re here for you.”
Everybody knows they can find me. And I think they’ve enjoyed the calls. Sometimes, just to get them going, I will put up backgrounds, because you can put up a virtual background in Zoom. And I will put up silly backgrounds, or we will have contests. I will put up some historic building, and whoever can guess the building gets a prize. Anything to keep their minds off of what’s going on. And it’s not only about helping your staff – you have to help yourself, too. I come from a big family. I have 180 living relatives, and these are people I know. And we stay together the same way. I’ve got cousins that I’ll text with every day even for five seconds. We do Zoom calls within the family. And that’s the most important thing right now for your sanity. If I didn’t have those connections, I’d go insane. It has really kept me going and helps me a lot. I have to have a good attitude in order to keep my practice going.
Obviously, connection is one of the big things that we’re missing and we need to find ways to do, and it sounds like you’re doing that. What else are you doing? You talked about supporting your staff, but what are you doing to support yourself so that you can be on top of your game? I’ve talked to people who have found – weirdly enough, even though they have worked from home before – that it just feels different this time. Maybe they’re going to bed much later and getting up later and not sticking to schedules. What do you find works best for you and makes you the happiest and best lawyer that you can be?
Those are good questions and good thoughts. I will tell you that I thought I was used to working from home because every night when I would come home from work, I would sit at this desk and I would remote back into my office desk and I would work for another hour or two. Now doing it 24/7 is totally different. I found it extremely frustrating at first. I’m now getting into a rhythm. I’ve kind of cranked up my equipment at home. But one of the other things I noticed is that I fell into a don’t get dressed, don’t do your hair, just sit down in your PJs and start working kind of mood. That was good for a day or two. Then I realized, “Oh my God! You need a routine. You need to get up, do what you would have done if you were going to work. Put something decent on.” And I will say that doing all of the video conferences makes me have to dress up a little bit. Although we all have a job, we only dress up from the waist up. We call them our “Zoom Tops.”
When the weather is better, I will take two 10-minute breaks, go out to my backyard, and hit golf balls or something. You need to take breaks, but you need a routine, you have to have a routine. Or it just becomes overwhelming. I should practice what I preach but I’m trying.
My colleague, Martha Chan, was starting to tell me a story and then she said that I should just ask you about it. And that’s the story of donating a mask. Can you tell us what that is?
Yeah, it’s almost embarrassing. It’s a silly little story. On the weekend I was cleaning out my basement/garage, which hasn’t been touched for like 25 years. And I used to do a lot of gardening, a lot of chemicals, so I had a bunch of those masks. They are for when you’re fertilizing. I was throwing half of them away, and then I saw this one that was in a container unopened. And I was about to toss it. Then I looked at it and it was an N95. And I’m like, “Oh my God, this is the kind of mask that they need!” And I thought, “Okay, it’s one mask, what do you do?” So I called the local fire company. Actually, I emailed them, they emailed right back and said, “Yes, one mask would be great. Here’s where you drop it off. Here’s how you do it.” I dropped it off, they thanked me and I wanted to cry. Because it’s just one mask and it makes you realize that there’s got to be more we can do. And it’s funny because I talked to Martha, who said she had also found one, and so she was going to turn around and donate it. So that would be like a nice thing to pass along that. It’s the little things like that, that they appreciate. I’m a hard-ass attorney – but I’m very soft, too.
Diana Shepherd: I want to thank you for taking the time out of your day to talk with me today. I really appreciate it and I think we got a lot of useful tips for our family law audience, and maybe some tips for our Divorce Magazine audience too. Thank you again, stay safe, and let’s hope this is all over soon!