Reflections on Client Advocacy and Practicing Family Law in Massachusetts During a Global Pandemic

Photo of Barbara L. Drury

As 2020 draws to an end, COVID-19 continues to impact the way of life for individuals and businesses across the Commonwealth, and the Massachusetts Probate and Family Court bar is no exception. Beginning in March 2020, and seemingly overnight, Probate and Family Court judges, clerks, administrators, staff and domestic relations attorneys had to rework their practices to address the challenge of pivoting from an entrenched system to adapting to a new reality. 

During months of varying stay-at-home orders and advisories, travel restrictions, limitations on indoor gatherings and the emphasis on social distancing, Probate and Family Courts (and courts in general) remained "open but closed," shutting their physical doors and limiting in-person interactions to emergencies.  Simultaneously, Probate and Family Courts worked to expand and improve online filing procedures and outdated technology, such that judges were better able to handle much of their docket virtually. With surges in the pandemic, Probate and Family Courts responded by having judges and court personnel operate in rotating teams, so that if a team member tested COVID-positive, there would be no need for the entire workforce to quarantine as well.   Still, at times, positive test results or an exposure within a courthouse resulted in unavoidable court closures on short notice. 

Our clients, involved in already stressful domestic relations matters (e.g., divorce, child custody and spousal/child support disputes), undoubtedly felt the added burden of uncertainty occasioned by court closures, delays and upheaval in a rapidly changing system. 

Still, while we recognize the many challenges we have been confronted with, it would be remiss not to also recognize the successes.  Where certain outdated or unnecessary processes have been discarded, new more efficient methods have developed.  Looking towards the future, when we return to our "new normal," we believe that many of the new procedures and adaptations that were created in response to the COVID-19 pandemic will remain. 

Reflecting back and looking ahead, we are encouraged to begin the "new normal" with procedures and strategies that will help us better meet our clients' needs and, as the pandemic winds down (hopefully!), we look forward to exiting this socially-distanced world.

The Virtual World

Even as "you are now on mute" or "you are unmuted" have become two of the most used phrases in the English vernacular, the world of Zoom interactions quickly became the new normal. What we once did in person -- from client meetings, to presenting at continuing legal education programs, to networking events, to court hearings including full-blown trials -- took on a new sheen as we worked from our home offices, dining room tables, and, more recently for us here at Fitch, at our new state of the art offices at 84 State Street, which include enhanced video conferencing equipment (Zoom rooms!).  

As we have worked to iron out the kinks of working from home while, in many instances, providing full time care to children attending school remotely, both clients and attorneys quickly recognized certain benefits from these new, more efficient methods of interacting. For example, very few people miss the need to navigate heavy traffic to get to a meeting in downtown Boston. Fewer still miss the "hurry-up-and-wait" cadence of court hearings in the Probate and Family Court, where, at times, clients and their attorneys could spend hours waiting for a ten-minute hearing. 

Of course, some events are not so easily replicated in the virtual world. Trials and evidentiary hearings presented their own set of challenges. Assessing a testifying witness's credibility or "checking the temperature" of the presiding judge during the admission or exclusion of evidence virtually is difficult and certainly much easier in-person. And, while trials and depositions that are document intensive are more difficult to conduct virtually, advances in court reporting and online document management have helped ease the transition. Finally, there is much to be said for the attorney-client relationship that is forged through strategy meetings and getting to know one another in a context more personal than simply through scheduled Zoom calls. 

With the hope that our Probate and Family Courts will open up more broadly as a vaccine becomes widely available to the general public, we envision a time when the efficiencies of the virtual world will co-exist with the necessities of the in-person experience.  In many ways, we have learned that it is more efficient and cost-effective for Zoom or telephonic hearings to replace routine hearings that do not require in-person attendance. This mix of in-person and virtual interactions will allow us to tailor our client meetings to the needs of each client.  The new normal of virtual meetings will allow us to stay connected in a more personal way when clients or attorneys are traveling out of town or having to work from outside of the office.  

ADR

Alternative Dispute Resolution including conciliation, mediation, and arbitration, which are productive and often cost-efficient ways of resolving cases, has become an even more valuable resource during the pandemic.

An already overwhelmed system has had to manage a cavalcade of rescheduling notices, reduce the daily volume of cases (often by more than half) that judges were able to address before the pandemic, and deal with the influx of new cases - often modification and contempt actions - that have arisen as a direct result of the pandemic. Scheduling cases has become very protracted.  (We are already seeing trials being scheduled in 2022.). 

Thus, during these unprecedented times, ADR has proven to be a valuable resource that provides willing litigants with an ability to resolve disputes in a timely manner without unpredictable delays.  While mediated agreements still require Court approval for incorporation into court orders or judgments, contested matters that can be resolved with the assistance of a third-party neutral have benefitted immensely from ADR, especially in these uncertain times.   

During the pandemic we learned how to successfully represent clients in virtual mediations and conciliations.  We overcame both technical challenges and process ones--multiple break-out rooms combined with everyone being in separate and different locations--to resolve clients' complex matters on favorable terms. Achieving such successes during the pandemic was even more gratifying given the difficult circumstances under which we are all living.

COVID Issues

The COVID pandemic also brought to the forefront unprecedented family law issues that have no easy or clear answers. The many federal and state guidelines/restrictions for mitigating the spread of the virus presented unique cutting-edge issues. The balance between federal and state guidelines/restrictions (that evolved quickly as we learned more about the virus) with so many different levels of risk-tolerance and physical or mental health needs resulted in the emergence of a plethora of novel co-parenting issues. While some parents were able to address these co-parenting issues cooperatively, for others, there were no easy answers and court intervention on an emergency basis was required.  

For example, what if a former spouse had his or her new partner over regularly during the pandemic? One might argue that this was in contravention of state or federal guidelines if the person was not completely self-isolating.  

Or, what if a grandparent lived with one co-parent and regularly cared for the children while the other co-parent was not following state or federal guidelines closely?  

Or, in another example, what if a parent had serious underlying medical conditions that put him or her at increased risk of serious complications from COVID, and then had a shared parenting plan where the children went back-and-forth to the house of the other parent, who worked in an ICU treating COVID patients? Both parents want to spend time with their children, and the children benefit from being with both parents. How do you manage these risks?

These are difficult questions with no easy answers, balancing physical health, mental health, parenting plans, co-parenting relationships, and the well-being of the children. The scarcity of information about this new disease, particularly in the early stages of the pandemic, meant that judges were working with the same information that we all had. Courts were in the position of addressing these complicated, emergent issues on a case-by-case basis, based on the information available at the time.

In some instances, co-parents have improved their co-parenting communication and decision-making by virtue of having to cooperate and collaborate to keep their children safe during the pandemic.  Other co-parenting relationships have experienced significant strain during the pandemic as a result of the lack of trust in a co-parent's judgment, underscoring the need for parents to work to improve the overall family dynamic for the benefit of their children.  

As we enter 2021 we look forward to closing the chapter of 2020 and hopefully seeing our clients, professional colleagues and Court personnel in person again soon- we miss you all but appreciate that we have been able to stay connected during this difficult period.  

Wishing you a happy and healthy new year.   

 

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