Family Law Judicial Proceedings During Coronavirus

As discussed in a prior blog re: Family Law Services During Covid-19, the El Paso County Courthouse is closed to routine business, thanks to Governor Polis’s stay-at-home order. The exceptions related to family law are (1) emergency motions to restrict parenting time, (2) hearings on abduction prevention motions, and (3) protective orders. See Chief Judge Bain’s Chief Judge Order 20-16 Regarding Court Operations Under The Novel Coronavirus (COVID-19) Advisory for more information.

The Covid-19 court closure does not mean that all non-emergency business comes to a halt – on the contrary, the court still accepts some paper filings, electronic filing, the normal deadlines apply to pleadings, and, as referenced below, hearings and other judicial proceedings are still taking place when practicable, albeit electronically. 

And law firms are also open during Covid-19, including Graham.Law. Most of us are seeing new consults, still filing motions and new dissolution cases, etc. We’re just conducting most business telephonically and via email, in accordance with social distancing guidelines.

April 9, 2020 Judges’ Covid-19 Town Hall

Covid-19 in El Paso County

Thanks to the efforts of Jenni Helland, today several domestic relations judges held a video town hall meeting over lunch for members of the El Paso County family law community. Participants included dozens of family law attorneys and other forensic professionals, as well as the following judicial officers & employees:

  • Judge Jill Brady (Division 20 & presiding family law judge)
  • Judge Deborah J. Grohs (Division 18, but due to technical difficulties, she could see/hear the speakers, but no one else could see/hear her – hopefully not a harbinger of things to come!)
  • Judge Chad Miller (Division 6)
  • Judge G. David Miller (Division 16)
  • Magistrate Dennis L. McGuire (Division M)
  • Ms. Cecilia Wall (Family Court Facilitator)

Thank you to all of the judges who gave up their time for some very welcome Covid-19 guidance to the family law bar.

Guidance For Domestic Relations Hearings During Coronavirus

There is no set centralized procedure for how judges will conduct hearings – rather, it will be up to the individual judicial officer. Having said that, they are trying to keep business as usual, to the extent possible given the realities of the Covid-19 outbreak. So there was a general consensus on the following guidelines:

  • Patience. These are unprecedented times, and parties/counsel/witnesses alike need to be flexible. Until 3 weeks ago, video or telephonic hearings were virtually unheard of (other than the occasional telephonic witness or attorney calling in for a brief status conference). And no one had heard of Zoom. As each day passes, the bench is taking lessons learned and tweaking their protocols as needed. And if a hearing starts but technical problems prevent it from continuing well, it may be continued at that time. Attorneys can even call up the court clerk for a “dry run” to make sure everything is working before the actual hearing.
  • Proceed Now vs. Continuance.
    • Attorneys & litigants should start from the presumption that the hearing is going to happen as scheduled, and try to make it work, rather than assuming a continuance.
    • Generally, the judges will proceed to a hearing unless both sides agree it should be continued (Judge Sokol (Division 10) was the exception – she will continue a hearing unless both sides agree to proceed via video).
    • When determining whether to postpone a hearing, factors the court considers include complexity of the case (i.e. number of witnesses & exhibits), duration of hearing (more than a day is more likely to be continued) or if there are problems locating a witness (i.e. only have work  contact information, but the witness is furloughed).
    • Judges will likely be more skeptical of a continuance request from the party with an advantage who gains from the continuance at the expense of the other (e.g. one parent has the kids and the hearing is to consider parenting for the other parent).
    • Ability to stare witnesses in the eye and assess credibility is NOT a factor – the judges agreed that they generally determine witness credibility through cross-examination or impeachment by other evidence, not how much they squirm.
  • Means of Conducting Hearing.
    • Brief status conferences or uncontested hearings may be done telephonically.
    • Contested hearings will be done utilizing videoconferencing, either Zoom or WebEx.
    • In-person hearings – reserved for emergency issues as set forth above.
  • Participants.
    • Dress professionally – this is court. And if you are wearing pajamas on your lower half where no one can see you, don’t stand up!
    • Quiet, secluded space from which to participate, no barking dogs, screaming kids, etc.
    • Be prepared – it’s especially important for witnesses to understand protocols, have exhibits, etc.
    • Judges will still sequester witnesses using a “lobby” feature, by which they are waiting and cannot join unless invited specifically when it’s their time.
    • If witnesses are logged in from their own computer (which all judges but Judge Sokol preferred), judges can mute them, zero in on their video, and in general have an easier time controlling proceedings.
  • Exhibits.
    • Send court clerk email in advance with exhibits, in an indexed PDF, rather than simply efiling through JBITS
    • Make sure each participant has a printed copy of both sides’ exhibits in advance, so there is no fumbling around
    • Preparation is key – any exhibit not efiled in advance will be hard to use.
  • Standard Order. Each judicial officer will issue an order prior to the hearing with instructions specific for that proceeding. Here is a sample ”standard” order issued by Magistrate McGuire. But bear in mind that as things are changing rapidly, procedures may already be changed by the time of your hearing, so read the specifics of your order.
  • Criminal vs Other Cases. Judges with criminal dockets cautioned that criminal trials postponed due to coronavirus have to be given priority due to constitutional “speedy trial” concerns. So if you have a summer hearing, it may be preempted by a criminal trial.

Finally, while not brought up by the judges, another consideration is whether med/arb may offer more flexibility to the participants than a court hearing and trying to admit exhibits and have testimony while everyone is remote. I typically do 2-3 arbitrations per year, and this month alone I have three arbitration proceedings. All conducted via phone or video, to preserve social distancing during the Covid-19 pandemic.

Child Custody Orders Not Affected by Colorado Stay-at-Home Order

Parenting Orders Remain In Effect. Judge Brady reminded everyone that per Chief Judge Bain’s order:

“All Parties are advised that all existing court orders, including parenting time and parenting exchange orders, are not suspended by the Stay-at-Home Order issued by Governor Jared Polis, and shall continue to be followed unless otherwise modified by the court or agreement of the parties.”

For a more detailed discussion of parenting time during Coronavirus, see our blog post Parenting Time & Exchanges During Covid-19.

Initial Status Conferences (ISCs)

Cecilia Wall, domestic court facilitator, advised that ISC’s are being conducted via telephone conference call, and it’s business as usual despite Covid-19. Early on a couple had to be reset, but they are not proceeding as scheduled. A few specific points:

  • Don’t forget about stipulations – as long as both sides have counsel.
  • The attorney should conference in the client before calling in for the ISC.
  • The more ways the court has to reach litigants, the fewer the problems. So please include all phone numbers, and an email address if known, on the Case Information Sheet.
  • Expect a bit more time to complete C.R.C.P. 16.2 financial disclosures – instead of the typical 2-week deadline issued at the ISC, they are now giving 3 weeks.

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