What if: your divorce or custody case was filed a few weeks or months ago and is currently pending? Your court dates have already been scheduled and you are preparing yourself and your paperwork to be ready. But you are probably wondering if you still have a case and how it will all work now that the Courthouse is closed. The good news: your case is going forward and if you don’t yet have a case but want to file for divorce or custody, you can. The not-so-good news: it’s a new world, a new “normal” and there are a lot of changes.
To begin, the Courthouse is closed—well, it’s not totally closed—but it is closed to most cases and traffic. That means people walking into the Courthouse to file documents or new cases is now highly restricted. Only certain people, and certain types of cases during certain hours are allowed. Restraining orders and other emergency protective orders are still allowed on a walk-in basis but only during the limited hours of walk-in operation (currently 8 am–2 pm).
Criminal law cases are still pending, but the Court must give priority to those that must be heard on schedule. Court Clerks are no longer able to assist as readily as they did before the pandemic. Their world is now one of constant rescheduling and logistics and their procedures are still being established, and sometimes no one knows exactly how all of it will work. Phone calls to these incredibly overworked Clerks all go to voicemail now and the Clerks call back when they have answers. This means that when the Clerk calls you need to know how to respond, what it means, and what to do next.
For almost all domestic relations cases, though, everything can be done electronically or by telephone or webcam. So, the limited hours at the Courthouse and restricted filings don’t often apply to domestic relations cases. This means you can expect that your case will go forward—but with some changes—mostly in the location and timing of how everything occurs.
Expect delays in scheduling and expect everything to take longer. This is likely going to happen as the Court tries to handle its regular workload of motions and filings and new cases, while also trying to schedule matters to be heard by telephone and sometimes by webcam. For any matter that must be by telephone or webcam, everyone just has to be patient. There is no getting around the fact that it is difficult to hold any type of courtroom hearing if everyone involved is not in the same room. When everyone is on a separate telephone line, we can’t see each other, so it takes a lot longer.
There are no non-verbal cues of when to speak—except for long silences on the phone line—and parties often talk over each other since they cannot see when the other is planning to speak. (One could make a joke here about attorneys always trying to talk over each other anyways—but we’ll leave that for another day…) The attorneys are used to having Judges look at them when the Judge expects the attorney to do something. Now, the expectation is when the Judge says something to the attorney over the phone like, “Ms. Wilson, are you ready to proceed?” or “What is your Client’s position on this matter…?”
It is also very difficult for the Judges, too, as their already outsized workload has increased tremendously. They must be very deliberate with their scheduling and instructions and statements. During hearings they must remember to tell each side when to speak, making certain that all matters are addressed. Judges also have to convey a sense of confidence to the Parties and the attorneys that they are paying attention and consider the issue before them to be of the utmost importance.
For anyone going through a divorce or custody case, the experience is a stressful and frightening time to endure. To also have the thought that the Judge is not listening or caring—because you can’t see them--makes it even worse.
Patience and fortitude must be your mantra as you go through a divorce or custody hearing by telephone or webcam. Even if everything seems to be going well, there are likely to be objections raised by attorneys which mean an interruption, and everyone has to stop talking while the Judge decides what to do and then the Judge tells the witness to either answer or don’t answer and then the process continues. Your attorney may not be at your side, so they cannot whisper anything to you, write notes to you, or cannot “Exhibits” which are usually documents, are now filed ahead of time so the Court and the attorneys all have them.
However, the Parties who are likely going to be at home on their phone need to have a notebook of Exhibits in front of them so the attorney can say “Would you please turn to Exhibit X and tell me what this is…?”. Being familiar with the notebook and having it in front of you so you can turn right to the page the attorney is referencing and can answer questions about that exhibit, will help smooth the process.
It’s a new world and a new normal but there is no reason your case cannot proceed. Yes, there is more effort and patience required now and there will be delays at times; but with the assistance of your attorney, you should be able to navigate this new system and come through your family law case stronger and look forward to your future.