The COVID-19 pandemic has changed life as we know it. Each day, people are having to adapt to constantly changing rules, policies, and advisories. For many, the most challenging new thing is the requirement for people to practice “social distancing” and to stay at home. This new normal also has many families and family law attorneys pensively considering few important questions.
The first questions is: Under a shelter-in-place mandate, will divorced/separated parents be able to travel for the purposes of custody exchanges? Governor Northam issued a Temporary Stay-At-Home Order for Virginia on March 30, 2020 that is in effect until June 10, 2020. Thankfully, the Order specifically permits individuals to leave their residence for traveling that is required by a court order or to facilitate custody and/or visitation. This inclusion provided parents and family law attorneys guidance to better handle custody and visitation disputes.
The second question is: While the Stay-At-Home Order provides guidance for parents who already have agreements or court orders, what about parents with pending court matters or those who have not yet sought court intervention?
The Supreme Court of Virginia first issued a Declaration of Judicial Emergency on March 16, 2020. That declaration suspended all non-essential matters and tolled (continued) all deadlines for all district and circuit courts for 21 days. During the judicial emergency, people can still file new actions with the courts; however, judges will only hold hearings for certain emergency matters. This means that non-emergency custody and visitation matters will likely be dormant until the judicial emergency end. The Court has offered some guidance on what constitutes an “emergency,” but judges may also use their discretion. This judicial emergency has been extended three times, with the most recent Order being entered on May 6, 2020 (going into effect on May 18, 2020), which extends the judicial emergency until June 7, 2020.
This Order also provides more guidance for attorneys and litigants than the previous versions and includes some important changes. First, while most deadlines are still tolled for the period of judicial emergency, discovery deadlines are treated differently. The deadlines for discovery issued between March 16 and May 17, 2020 will run from May 18, 2020. Second, District and Circuit Courts are encouraged to increase their use of electronic and telephonic court proceedings, with the Supreme Court going so far as to say that such methods are preferable to in-person proceedings. Third, District and Circuit Courts may begin to hold non-emergency matters, in-person, if such court determines it is safe to do so. The Order provides some guidelines as to the appropriate safety measures, but the ultimate decision on protocols is left to the individual courts.
No one knows when life will return to normal and if some stay-at-home restrictions will continue past June 10, 2020. Even before the May 6, 2020 Order, local courts have begun adapting. The Fairfax County Circuit Court has put in place a temporary procedure for certain hearings to be conducted telephonically or by video (e.g., Webex), as long as both sides are in agreement to appear in this manner. Loudoun County Juvenile and Domestic Relations Court is set to resume in-person hearings starting May 18, 2020. However, this Court is still allowing virtual hearings in certain circumstances and is limiting the number people allowed in each courtroom.
It is likely that the next few weeks and months will present new challenges and even more changes to the ways courts are handling their dockets. No doubt the May 6, 2020 Order will result in a variety of new procedures to balance the need to hear cases while still ensuring public safety. If you have a pending family law matter or are thinking about filing one, you should stay tuned to the rapidly evolving court procedures.
It is important to note that this article, and the information referenced herein, is not a substitute for Virginia law or policy, and it does not constitute legal advice.