By Guest Author Ramona A. Gonzalez
The courts in the United States were forced to close their doors this year for all but emergency cases as the novel coronavirus (COVID-19) spread across the nation with more than six million confirmed cases and over 184,000 deaths by September 1, 2020.¹
The primary role of the family court judge under federal and state law is to ensure the safety, well-being and permanency for children and families. To do so, state leaders of the highest courts set the parameters for state-wide operations, while local jurisdictions adjusted to meet the needs of children and families in their communities using technology to hold emergency removal, temporary protection hearings and delinquency cases. Administrative and procedural orders
frequently were amended to respond to the ever-changing dynamics of the pandemic.
Communities, meanwhile, tried to cope with grief, isolation, loss of income and other social traumas. People of color, people with low income, and people from other marginalized communities—including LGBTQ+, immigrants, and those with physical or intellectual challenges—were vastly affected by the pandemic and suffered mortality rates in greater numbers. At the same time, children of color and others from marginalized communities were disproportionately represented in family court proceedings.
Judges who have struggled to meet the requirements under the law during the pandemic were challenged by the particular risks of each jurisdiction they serve. Social workers were unable to safely meet with children and families to recommend alternative placement options and services. The public’s health in this pandemic caused the courts to close, but the need for justice continued. Months after the court closures began, the question still remained: Where do the victimized go, and what are the options for judicial officers making the decisions to ensure the safety, well-being and permanency of children and families?
In addition, the pandemic hit close to home in some state court systems where judicial officers and court staff lost their lives from COVID-19. Others tested positive, which required quarantines, and other public health safety measures to lessen the spread of the disease.
Despite the challenges, family courts have attempted to be innovative and agile as the realities of the pandemic surfaced. A number of national judicial and legal organizations recognized these realities and the need for continued access to justice as the pandemic surged. The American Bar Association (ABA) provided guidance for judges and attorneys, The
National Center for State Courts (NCSC) and The Conference of Chief Justices (CCJ), provided guidance for court administrators and chief justices, and the National Council of Juvenile and Family Court Judges (NCJFCJ) provided guidance and support to state court judges. Each explored alternatives to in-person hearings, the use of technology, and proper procedures to maximize public health and safety as states began instituting re-opening procedures.
Many states extended temporary domestic violence protection orders for months to ensure that parties did not come to court for a hearing to determine whether a permanent order should be issued. Adjustments were made in juvenile delinquency cases to address the increased risk of children being exposed to the virus in facilities, while probation adapted to properly monitor children’s compliance with probation conditions, which the court may not have set initially.
Meanwhile, the Children’s Bureau of the U.S. Department of Health and Human Services issued guidance that did not allow waiver of timelines for dependency hearings required under the Social Security Act.
National judicial and other legal organizations urged all court systems to delay returning to full operations until science and local health officials deemed reopening safe, and that recommendations for masks, distancing, hygiene, and the numbers of persons within court halls, courtrooms and elevators be developed and monitored based on Centers for Disease Control and Prevention (CDC) guidelines.
“We cannot ensure access to justice if we—people who work in the courts and people who appear in front of us—are ill or afraid that coming to court will expose them to COVID-19,” according to the May 2020 NCJFCJ statement on recovering from the pandemic. As part of its mission, the NCJFCJ, an 83-year-old judicial organization whose members preside over family court cases, has provided many opportunities for its members to talk with other judicial officers about their
experiences adjusting to court closures, virtual and telephonic hearings, as well as their thoughts about access to justice as the pandemic continues.
Judges also were concerned about the use of technology and ways to ensure that litigants had the opportunity to be heard, and that attorneys were able to effectively represent their clients. Options were needed to provide services essential for children and families. Over the past three months, some family service providers, including, but not limited to, therapists, social workers, substance abuse intervention specialists, domestic violence advocates, and educators, began using technology to provide some services to allow compliance with court orders.
Over time, judges began asking whether family courts should return to business as usual once the reopening process began or whether they should adjust some aspects of the court system permanently. The question is designed to examine whether some of the procedures that courts have used to operate for decades affect true access to justice for the parties involved. In short, how can family courts and their community partners use the pandemic experience to refine and redefine access to better insure that children and families are at the forefront of the family court process, that they receive better outcomes and that courts not be confined to the operational premise that “we have always done it this way?”
Jurisdictions are beginning to address these questions through the use of existing collaborative networks. Service provision and compliance with orders issued in a virtual world have created talking points for process and rules changes across systems. As courts begin to open on a limited basis, some of the pandemic strategies may remain in place but may be augmented. Some procedures may become more sophisticated and include virtual therapy, participation of foster parents or relative caregivers in virtual hearings, regular check-ins for those under temporary protection orders to evaluate compliance with court orders, juvenile probation engagement and arranging for a child’s teacher or counselor or coach to participate in a dependency or juvenile hearing.
Before the next disaster occurs, we ask courts and state agencies: Did the 2020 experience enhance access to justice, respect and dignity for all litigants in family court cases? Many posit that the flexibility required during the pandemic, in some respects, has shown that access to alternative processes does not have to interfere with due process or the application of the rule of law. Others suggest that best practices in child maltreatment cases may be ripe for full
implantation in all courts. The pandemic offers courts and communities the chance to infuse best practices when com- munity disasters strike while continuing to examine what has been successful to create better outcomes for all children and families.
In 2016, The NCJFCJ published the Enhanced Resource Guidelines: Improving Court Practice in Abuse and Neglect Cases (ERGs). Among the ERG’s principles and best practices is the necessity for engagement, empowerment and hearing the voices of children and families in family court proceedings. The ERGs promote effective and consistent communication with the parties throughout the life of family court cases. Finally, the nation’s courts today may be closer to reaching the long- held best practice of time-certain hearings, which encourages and engenders more frequent participation, engagement and empowerment of children and families. A few examples:
- Parents can request hearing times without the need to miss work or travel to and from the courthouse when they have limited resources for transportation and cannot afford time off.
- Children will be able to participate without interruption to their education. Incarcerated parents can participate in hearings on a regular basis.
- Service providers, including those in rural and tribal areas, will have the ability to fully participate in court hearings to provide information to the court on compliance with court-ordered services.
- The door may be opened to more effectively provide monitoring and services where family violence is an element in family court cases to promote accountability but also responsibility for those who commit family violence.
- The focus on developing a larger array of community-based, non-governmental partners to support
parenting time arrangements, transportation, and community peer support may help to address access, engagement, and empowerment for children and families from communities of color and other marginalized com-
munities who are hardest hit by the pandemic.
Although there may be concerns and challenges for courts in this new virtual world, the opportunities to better engage and empower families through increased flexibility support the
notion of nimbleness.
Going forward, this idea will change processes that may have appeared insurmountable before the pandemic. The opportunity to test new approaches across different but related case types during the pandemic promotes exploration of new rules and policies across systems to increase engagement, involvement and empowerment for children and families that may lead to better outcomes for children and families.
1 This number fluctuates daily and may have risen substantially since the newsletter’s publication date.
Judge Ramona A. Gonzalez of La Crosse, Wisconsin, has served as a State of Wisconsin Circuit Judge since April 1995 and is the immediate past president of the National Council of Juvenile and Family Court Judges. Judge Gonzalez is a leading expert on family law issues, specializing in particular on national and international matters relating to child abduction, unaccompanied minors and immigration, LGBTQ+ youth and domestic violence.