By Susan Lichterman
It's not much of an exaggeration to say that the coronavirus pandemic has changed everything. The impact of the COVID-19 crisis and related shutdowns has impacted lives and livelihoods across the State of the Michigan, the nation, and the world.
In the legal community, judges, attorneys and clients have all had to adapt to new legal, procedural and logistical challenges, along with new moral and ethical considerations. My own practice area, family law, has been particularly affected.
Back to school?
We have already seen how quickly the still-evolving scientific and medical consensus can shift regarding public health and safety best practices for managing COVID-19 exposure and limiting viral transmission. And given this rapidly changing scientific and medical landscape, judges are being forced to make consequential and potentially even life-threatening decisions based on information that two scientists, let alone two parents might view very differently. In particular, this creates a unique challenge for judges and legal professionals in cases where divorced or separated parents with joint legal custody (shared responsibility and decision-making power about matters impacting the education, health and wellbeing of their children) can't agree on the best course of action for their kids' schooling options. With some schools going to a remote learning environment, others open for in-person learning, and still others offering different options or embracing a hybrid model, there is higher-than-usual potential for disagreement on the best way forward. We are seeing some parents consider moving kids from private to public schools, unwilling to pay a hefty tuition price tag for at-home learning. Other parents have looked to move from public to private schools, to ensure that their kids still have the option of in-person learning if their public school is remote only.
There may be a host of complicating factors to consider, as well. Some parents may feel unable to provide the care and attention required for one or more children staying at home for an online learning environment. Exposure concerns can vary dramatically based on things like families who may have "podded up" with other families, or blended families with multiple households where the list of potential exposure can increase exponentially. Our understanding of the potential risks and exposures of COVID-19 is evolving and we are learning more all the time. The result is some contentious debates between some parents, and some correspondingly challenging tough decisions for judges. There is an argument to be made that the "default" in cases of disagreement should be for the child to stay home-presumably the safest option. But the medical and ethical terrain here remains rugged, and some attorneys have even opted out of giving specific counsel to clients.
The Vaccine?
Similar concerns will arise upon the release of a COVID-19 vaccine. While the world awaits a COVID-19 vaccine, this prospective vaccine presents a whole new set of potential considerations and space for disagreement. While most agree that the science is quite clear on the safety and benefits of vaccines in general, vaccines are a contested issue among some parents. With regard to the COVID-19 vaccine, concerns are being raised that it is being rushed. As such, there may be more parents who disagree on this particular vaccine than who disagree about vaccines in general. And, when disagreements over vaccines end up in court, outside groups often get involved creating publicity and adding fuel to the long-running debate over vaccines, often overlooking and overshadowing the real issue-a child's health and wellbeing.
The new normal
As in so many other industries and legal specialties, the daily experience of practicing family law feels very different today than it did 6+ months ago. While individual experiences vary considerably, and it is admittedly difficult to judge at a time when everything feels so different, anecdotally it feels busier and in some ways more chaotic. In general, I'm seeing an up-tick in divorce inquiries, as the stress and disruption of quarantine and economic and social/professional disturbances has led to more instances of substance abuse, depression, and widened existing cracks in family relationships.
From a procedural standpoint, however, the news isn't all bad. In Oakland County, for example, while cases that did not involve children could be e-filed pre-COVOID, cases with children had to be filed in person. Now, however, e-filing is now available for all cases in Oakland County and in most of the counties where I practice. In conjunction with corresponding changes to service requirements, the net result is time-saving new efficiencies. Scheduling conferences and other such court appearance over via virtual video meeting platforms is generally easier (or at least more flexible), and, with clients and the legal community growing more comfortable with technology and virtual representation, families and individuals have more access to a wider range of options when it comes to finding legal counsel. It also has the added side benefit of exposing attorneys to more judges and jurisdictions, and broadening the network of relationships and perspectives that ultimately benefits everyone involved in family law cases.
Virtual environments-very real challenges
For all of its conveniences, "virtual law" is a sub-par alternative for in-person meetings and proceedings. The impact on mediation has been especially challenging, and something I've felt both as a mediator and as a practitioner. In pre-judgement proceedings, clients are often still living in the same house together, which presents a host of complications for virtual meetings. There may be children present, and different parties may overhear or be influenced by (inadvertently or maliciously) overhearing conversations that were intended to remain private.
The lack of in-person contact is felt keenly in environments like a mediation session, where personal connection adds something essential. Experienced attorney know how important it is to read body language and eye contact, and respond to energy and subtle physical/emotional cues. It is, in many ways, a profoundly intimate experience-where big decisions are being debated and made-which makes it all the more important that clients and attorneys communicate clearly and understand each other completely. In my experience, people are also generally less likely to compromise in virtual/video environments. And difficulty or discomfort with technology, particularly prevalent among seniors or those dealing with physical limitations, adds another layer of challenges. Which is why, even in cases settlements are reached on the call, I make it a point to advise my clients to hold off on formalizing anything until we have both had time to review and digest the documents.
Virtual proceedings are also problematic in evidentiary hearings and in proceedings where someone is providing testimony. Concerns about evidence and witness credibility are heightened, and you worry about the potential for malfeasance, such as someone getting "fed" information off-camera.
Moving forward
While no one knows what the weeks and months (and years) ahead will look like, the disruption to the economy and to individual employment will likely continue to make issues of child and spousal support an urgent priority for family practice attorneys. When a vaccine does become available, there will certainly be passionate debates between parents about if and when children should be vaccinated. And, as pandemic restrictions loosen, varying levels of comfort surrounding the advisability will also be a likely flashpoint for disagreements.
The good news, however, is that most people have risen to the challenges before them. Despite the tragic nature of this pandemic, there has been less family law dysfunction, turmoil, and drama than one might have expected, given the scale and severity of the crisis. Both the legal community and our clients have, for the most part, responded admirably, with more pro bono work, and attorneys and judges alike helping each other out. During the shutdown when courts were only entertaining emergency motions, practitioners had to pause before rushing to court and filing motions and ask Is there really an emergency? Can it wait? Can we work it out without court involvement? My hope is that the attitudes of "let's work this out before rushing to court" and "do what's in the kids' best interests," something we have seen more of lately, will be attitudes that persist even when COVID-19 is in the rearview mirror.
It feels remarkable to me that we are now reaching the point in the pandemic where I am representing clients whose entire relationships have been conducted online or over the phone. In a business where relationships are so important, that's a challenge for all parties. I'm certain I'm not alone in missing the informal chats between colleagues and adversaries alike, both in the office and the hallways of the courthouses, where so much valuable information is shared and so many important compromises get their start. Legal proceedings are enormously complex interactions that take place in a range of different environments. That has all been disrupted. As family law attorney and legal professionals, we need to continue to remind ourselves to be flexible and creative, to be understanding, and to focus on what's important as we navigate these uncertain times and move forward together.
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Susan Lichterman is a family law attorney with Jaffe, Raitt, Heuer, & Weiss in Southfield.
