Family Law, Divorce and Child Custody Cases in the Age of COVID-19: electronics to the rescue
Changes in Family Law cases from COVID-19 range from procedural differences in the courtroom to modified parenting plans that better protect parents and children. So much of what is happening is ad hoc, being made up as we go along. Here are some thoughts about how your case and your attorney and your Judge have been impacted by all the changes.
Although it was something that had to be developed during a state of emergency, the Colorado Courts have done a good job creating systems and procedures that allow most Family Law cases to be handled remotely with a minimum of delay. The Court uses the Webex system and before each hearing or status conference, the Magistrate or Judge will file instructions and send them to the Parties. The instructions will indicate if it will be by phone or video and how to access either system. Each Party and each attorney must download the Webex system and will have issued instructions and links to access the specific date and time of the Hearing. Sometimes, the Parties can decide if they want either phone or video and attend how they please. The instructions from the Court will specify what is expected. The Webex system is much like Zoom, so it’s a good idea to practice with Zoom so you can be comfortable in front of a screen. One caution, though, often “internet traffic” noise interferes with the video sound (when over the user’s computer) and Hearings have to be changed to telephone, only.
Initial Status Conferences, often the first time parties in a case would have to go to Court, are now held by telephone, only. We still talk and interact with the same Family Court Facilitators who handled the Initial Status Conferences before, but now it is all by phone. No-one has to travel to the Courthouse and since the Initial Status Conference takes only a few minutes, time off from work to attend a Court appearance is usually not necessary.
For any Hearing (Temporary Orders Hearing, Contested Final Orders Hearing, Motion Hearing, Contempt of Court Hearing, etc.) , the Court will determine if your case is going to be live in the Courtroom or by video or phone. For any Hearing, there will likely be “Exhibits” which are document your attorney will introduce into evidence. Whether your case is live or by Webex, your attorney will probably give you a book of Exhibits to have in front of you—printed out so you can access them easily—and your attorney will determine how to get the Exhibit book to you. At The Law Office of Jeanne M. Wilson & Associates, if the Courthouse is closed and COVID cases are spiking, we usually have the Client drive to the firm, call us and we run the books down to their car and put the books on the hood of the car. The Client then retrieves the books. If the Court is open and the Hearing will be live, you can likely just pick up your exhibit notebook from your attorney. Trying to pull up individual exhibits from emails or from folders during video testimony often results in delay and confusion. It is always best to have an actual notebook in front of you for ease of reference.
Temporary Orders Hearings and Status Conferences in your case will likely still be held by telephone or by video. If a Temporary Orders Hearing is being held, the Hearing may last for an hour, sometimes longer. So, Parties need to be ready to spend that much time in front of the screen/on the phone. During the Hearing, your attorney will be asking questions and the opposing attorney will ask questions and the Magistrate may interject and have to decide objections or issues while all Parties and attorneys appear on the screen/phone. A quiet location with good internet, a good phone line and no distractions will help you concentrate on your case and fully participate. A barking dog or someone running through the room will make hearing, listening and responding appropriately, so much more difficult. Try to control as many outside distractions as possible. It is important that you be at your best, clear headed and able to focus.
Contested Final Orders Hearings and Motion Hearings, also called “trials”, are held by Webex video. A District Court Judge will be presiding over this Hearing. Parties need to be prepared to spend hours—sometimes on multiple days—in front of the screen. Being familiar with the book of Exhibits (you will probably have 2 books—one will be your Exhibits and the other will be the opposing parties’ Exhibits) helps keep the case flowing and prevents confusion. Your attorney will likely have a script with all the questions and references to the Exhibits. You will likely be asked repeatedly to turn to a particular Exhibit, identify it and answer questions about the Exhibit.
The biggest difference many have noticed between a video trial and a trial in a Courtroom, is that on video everything has to be planned in advance and then it just takes longer. Presentations of evidence must be scripted and well developed and responses must be more succinct as none of the non-verbal cues exist. Exhibits have to be filed in advance so the Judge and Magistrate have them for the Hearing. A rambling witness—one who just keeps talking after the question is answered—doesn’t have any non-verbal cues to stop talking and this often causes confusion with the recordings as no-one knows when the rambler has finished their answer and Parties and attorneys “talk over” each other. There are also no spectators in person and a Party appearing on video can feel pretty alone without family and friends present and without their attorney by their side. Of course, family and friends may be present while the Party is appearing on video (from wherever they choose to appear) but that is only if they are not a witness. They must also be perfectly silent or will likely incur the wrath of an angry Judge. So, while electronic connections allow the process to continue, it is different, feels less personal and requires lots of preparation. One final difference, trial by video requires extreme patience—especially from Judges who must make the whole system work while dealing with constant technical difficulties.
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