On November 10, 2020, one week after Election Day, and in the eye of the storm of allegations of election fraud, we (Dr. Matt Sullivan, past president of AFCC International, and retired Commissioner Marjorie Slabach) joined Susan Myers, AAML President, and Gabrielle Davis, attorney with the Battered Women’s Justice Project, to present the Opening Plenary for the International AFCC’s 14th Annual Symposium and Child Custody. On that day we told ourselves and the audience that we hoped we were seeing a light at the end of the 2020 nightmare. We hoped that the new vaccines would soon vanquish the virus; that the winter months would quell the fires; that a new administration would start to heal societal fractures; and that the court systems’ new ways of doing business for families mandated by COVID realities would bring us some long-term benefits.
As we write this article in January of 2021, we are reeling from the January 6th assault on the U.S. Capitol, news of plans for further assaults, and warnings of greater spikes in virus illness and death. The hoped-for calm and health still elude us. Our global trauma continues keeping stress levels high creating a devastating emotional impact to professionals and clients alike.
In the plenary, we gave examples of ways in which the Plenary panelist have been affected personally by the chaos. My (Commissioner Slabach’s) plans to take my 16 year-old grandson to Europe for two weeks in July were scuttled: the flights refunded, the hotel reservations canceled. But the hardest part for me was my inability to hug a young man I had passionately cradled and casually hugged since his birth. I (Matt Sullivan) remarked that I wasn’t experiencing PTSD, because the trauma and stress continues.
And as we are personally affected in these painful ways, we are able to imagine the pain of millions of families as they navigate the more severe problems of food shortage, lack of work, lack of access to good health care, isolation, etc.
What we relearn with each crisis event in our personal and public lives is that the seismic changes we experience are more often than not just the tipping point of the changes that have been gradually building without our collective awareness. This happens in our public health crises, in our body politic, in our social justice explosions, and in our hurricane and forest fire tragedies. Each uncovers the subtle impact of the gradual changes that had been taking place – the changes that we can now embrace and learn from, or deny and send to the dustbin of history.
What we are learning from our COVID-19 world is that like earlier pandemics, the virus is not “changing the game” within our court and justice systems so much as it is accelerating and amplifying the shifts that were already underway – some good, some bad. What do we want to preserve and build on as we move forward and what do we need to address as a result of our institutional failings laid bare in this last year?
Some examples include the virtualization of family court practice and processes, the ZOOMing of hearings and conferences, and opening up jurisdictional and geographic limitations on both clinical and legal practice.
Since the shelter-in-place and social distancing orders issued last spring, courts first closed, then floundered, and continue to scrambled to provide services required by each state’s constitution. The Chair of the Board of the National Center for State Courts, Texas Chief Justice Nathan Hecht, issued this statement last summer: “Since the onset of the pandemic, courts throughout the country have determined to stay open to deliver justice without faltering, no matter the adjustments and sacrifices demanded, but also to protect staff…and the public from the risks of disease. We are learning new technology and practices together.”
So, how well are we doing in California? First, courts shut down completely starting in Mid-March for 2-3 weeks as shelter-in-place and social distancing were required, and then extended as it became clear we were in it for the long haul. Minimal clerical staff was available for emergency matters such as domestic violence restraining order applications and dependency removal cases. Many court hearings and conferences were postponed, continued, and rescheduled. As it became clear that in-person proceedings were not going to become quickly available, the courts have (some more quickly than others) embraced video hearings, whether through ZOOM, WebEx, BlueJeans, GoogleMeet, or other platforms, by any other name…
One wonders what this pandemic would have been like had it occurred fifty years ago, when this technology wasn’t available? Are we fortunate that the pandemic descended during the great cyber era? Can we look forward to appearances by hologram in virtual-reality courtrooms in the near future?
Beyond conducting hearings, courts have many other tasks – receiving pleadings for filing; reviewing, signing, and returning orders; providing mediation; etc. All of these tasks are quickly morphing: for example, court requirements for “wet” (original) signatures or notarized signatures have given way to electronic signatures with various requirements.
When the coronavirus makes court appearances difficult, where do we go? Courts are actively and urgently pointing toward alternative dispute resolution such as mediation, parenting coordination, early neutral evaluation, settlement conferences, arbitration, private judges and so forth.
But these procedures must in most cases also occur remotely, which, of course, creates some of the same headaches and comedy of virtual court hearings. We’ve all heard the apocryphal and sometimes too real stories of the laptop in the bathroom during a meeting, the dressing down an attorney received from the judge for appearing “in court” in his pajamas, or the young attorney-parent being asked for a snack from a child as he or she delivers an opening statement.
Other issues arise when litigants do not have internet, or a laptop, or who have children in the room listening to the proceedings.
As for ADR specifically, this usually requires private funding of the professional. If the parties cannot afford the private mediator or private judge, what do they do? The disparate economic stratification has become more visible, as those who have access to the internet and private funding of professionals may have more access to justice and resolution, and those who do not, do not have access to justice or resolution.
Before our systems revert to the old “normal,” let us ask: What is better than before and what is a failure?
As a private judge and settlement judge I (Commissioner Slabach) find the hearings, case management conferences, and settlement conferences to be far more efficient and less time consuming than the old traveling-and-gathering-together process. But the collegial human personal touch has somehow been lost – the chit chat about the weather, vacations, grandchildren, etc. while we are waiting for one of the parties with their counsel to discuss the latest offering on the table, is mostly gone. The shaking of hands – that old symbol of I-come-to-you-in-good-faith-with-no-weapon-in-my-hands – is gone.
I (Dr. Sullivan) haven’t been to my office since last March and contemplate giving it up for good each month I send in my rent check. Riding the wave of telehealth innovations in behavioral health and ODR (online dispute resolution) the past several years, I’ve adapted to Zoom service delivery and find benefits and efficiencies of the platform particularly the added disengagement from each other that virtual services provide my high conflict coparents. Not to mention the convenience of no commute for myself or my clients. Telehealth also means no geographic limitations in providing services, other than state licensing limitations, which are fast breaking down as multi-state licensing compacts increase (https://www.asppb.net/page/PSYPACT). This new reality is changing the playing field for forensic mental health professional’s practices statewide.
In my 2020 year as the AFCC “COVID” president, we pivoted from in-person conferences and professional training to virtual ones. We found our members’ participation in the continuing education AFCC offers has increased dramatically, expanding AFCC’s reach to more professionals across geography and disciplines. Despite this positive consequence to our field, we all look forward to gathering with colleagues at the next in-person conference – perhaps AAML-AFCC in Washington – when Covid’s restrictions ease.
For many years there has been discussion about how we can reorganize our family courts to best serve our families. During those discussions where we have been encouraged to think outside the box, I (Commissioner Slabach) have been overheard suggesting that we need to blow the box up and start from scratch. It now appears that an external force has done exactly that – blown up the court system – but I must say, I didn’t ask for this! So if the gods and goddesses of chaos and order are listening, Please! I’d like a little less chaos and a bit more order.
And if we can more effectively address the economic disparities that drive access to justice disparities, we do see some very hopeful procedures coming from this: more parents who would normally seek the court’s assistance in decision-making are learning how, with a professional’s help, to make decisions together.
Marjorie Slabach, JD, is a Certified Family Law Specialist and retired San Francisco Superior Court Commissioner in the Unified Family Court. She is now a Private Judge focusing on case management and settlement conferences, although she also hears trials where necessary. She is a frequent lecturer and panel member educating attorneys and judges in the area of family law, with a focus on parenting issues. She is a former board member of the California Chapter of the Association of Family Court Conciliation where she headed a task force to explore alternative models for serving families in the court system. She was the 2018 recipient of the AFCC-CA Drown Award.
Matthew J. Sullivan, Ph.D., has been in private practice in Palo Alto, California, specializing in forensic and clinical work in the Family Courts for 30 years. He is the author of numerous peer-reviewed articles, book chapters and books on topics related to work in high conflict shared custody situations. He is a pioneer in the development of Parenting Coordination role internationally.
He is the immediate Past President of the Association of Family and Conciliation Courts (AFCC) international organization. He served on the American Psychological Association Ethics Committee from 2016-2018. He is the co-founder of Overcoming Barriers, Inc., which is a non-profit organization that has developed a variety of innovative programs for high conflict shared custody arrangements.
Dr. Sullivan received the 2012 Joseph Drown award for outstanding service to children by the Association of Family and Conciliation Courts, California chapter.