By Christopher Vatsaas and Kendal O’Keefe
Since the World Health Organization declared covid-19 a global pandemic in the second week of March, new and frequently unexpected effects of the crisis have continued to make themselves known. As the pandemic wears on, it has become increasingly apparent that the family unit is facing a uniquely comprehensive combination of stressors. Parents with school-aged children are being asked to manage and facilitate “distance learning,” often while working their own fulltime jobs, and working parents with younger children and infants are forced to make the difficult choice between sending their child to daycare (assuming daycare is still available) or keeping their child home and caring for all of their needs while simultaneously attempting to meet all of their professional obligations (from personal experience, a Herculean undertaking). Other parents have been furloughed or laid off or may be anticipating such a change in the near future, adding significant financial stress during what is already a stressful time. Families are also struggling with issues related to medical care, which is being deferred in many cases to prevent the spread of the virus and the risk of exposure.
Families in transition as a result of a pending divorce face even more uncertainty as parents struggle to divide a marital estate that may be experiencing substantial losses as a result of the downturn in the market, and many parents who have already separated are struggling with how to maintain “social distancing” while abiding by existing court orders that require children to transition back and forth between households.
The impact of covid-19 has put additional stress on virtually every component of a family’s day-to-day life. Unsurprisingly, the stress has already begun to manifest itself in an influx of activity in our family law systems, including the courts and all forms of alternative dispute resolution.
The ticking time bomb
Already, anecdotal data coming out of China’s court system suggests that China saw a surge in divorce filings and domestic abuse cases in March,1 and here in the United States, there are numerous reports of perpetrators of domestic violence using stay-at-home orders to exert additional control over their victims.2 It is reasonable to assume that a surge in divorce filings and domestic abuse cases is on the horizon here in Minnesota, and, with no clear indication as to when it will be safe for the court system to resume business as usual, this surge will likely come at a time when the courts’ ability to address this influx is limited as a result of continuing precautions to prevent the spread of covid-19.
Currently, by order of the Minnesota Supreme Court, only cases involving emergency change of custody requests and personal safety concerns (i.e., orders for protection) are required to be held in the courtroom, with all other cases being heard using remote technology, or on the basis of written submissions.3 In many cases, courts are tasked with analyzing nuanced and difficult fact patterns and balancing competing interests in the face of unprecedented circumstances. For example, should an otherwise excellent parent’s parenting time with her children be suspended because she is a medical professional on the front lines of the pandemic? Alternatively, how should the court address the immediate furlough of both parents as it relates to child support, knowing that its decision could easily affect the ability of one or both parents to pay their rent or mortgage the following month? These sorts of issues are becoming more prevalent by the day in our own state.
Many of these challenges require immediate or expedited solutions that family court is not readily equipped to offer under the best of circumstances. The unique stressors placed on families right now, coupled with the court’s inherent inability to operate with immediacy and nuance—especially in the midst of a pandemic—demand that the family law bar explore opportunities for procedural creativity in an effort to solve these more immediate problems for families during this crisis. Given the high likelihood that the court system will be heavily taxed upon its return to more normalized operations, the demand for such creativity is likely to continue for the foreseeable future.
Responding to the demand for creativity
Fortunately, the family law bar is responding. Many ADR providers are now offering their services via Zoom and other remote video-conferencing platforms, and shortly after the impact of the pandemic began to show itself in Minnesota family courts, a number of members of the local bar, the ADR community, and the judiciary set out to establish the Remote Expedited Temporary Relief (RETR) program. The program, in its fledgling stages across many metropolitan counties, is designed for parties who are represented by counsel. The RETR program is a Rule 114.02(a)(10)4 ADR process, created and utilized by agreement of the parties and their counsel, and offers the temporary motion process in a modified and abbreviated format. Parties who agree to use this process may select a provider from existing Moderated Settlement Conference rosters, or they may select another qualified professional with adjudicative training or other similarly relevant experience who agrees to work within the requirements of the RETR program.
Once a provider has been selected and has agreed to serve, he or she will hold a brief video or telephone conference with counsel for both parties. The parties then make temporary submissions to the provider, and a second video or telephone conference is subsequently held to give counsel the opportunity to make arguments and explore settlement. The provider will then issue a simple (no-findings-required), non-appealable order within seven days of the second video or telephone conference.5 This streamlined process was specifically designed with temporary motion hearings in mind and is not available to modify previously issued court orders of any kind, unless the parties and counsel specifically agree.
For cases in which a court order has already been issued, or cases that are otherwise not a good fit for the RETR program, attorneys are more frequently engaging in negotiations to appoint special masters or consensual special magistrates (CSMs) as authorized by Rule 114.02(a)(2) to address family law issues of all types in a more nuanced, adaptive, and timely fashion than the court system can offer right now. The CSM process is an adjudicative process that authorizes the appointed CSM to issue a binding decision.6 While these appointments have historically been used predominantly in divorce cases involving sophisticated financial issues, the family law bar has appropriately sought to adapt the use of these appointments to address immediate issues involving custody, parenting time, and other miscellaneous issues. The use of parenting consultants (PCs) is also becoming more common, and practitioners are becoming increasingly creative in specifically tailoring the scope and/or term of such appointments to fit the unique needs of families during this difficult time.
These fast-paced developments in family law processes and ADR structures undoubtedly have some imperfections. But they are offering the more immediate solutions that families so desperately need and deserve. Our local bar should be incredibly proud of its responsiveness to the demands of the covid-19 crisis related to the stress it has placed on the family unit; our family law systems may actually improve on a long-term basis as a result. The critical and time-sensitive nature of many of these issues require the creativity currently being mustered, but the byproducts of that mandate could very well result in new ideas, new methods, and new practices that permanently enhance our ability to be adaptable, nuanced, and timely in responding to the issues that families in transition face moving forward, even after the pandemic has ended.
KENDAL O’KEEFE is a senior associate attorney at Arnold, Rodman & Kretchmer PA in Bloomington, Minnesota, where she focuses her practice exclusively on family law. Ms. O’Keefe has been named a Rising Star attorney by Super Lawyers, and is a co-editor of Minnesota CLE’s Divorce Practice Deskbook.
CHRISTOPHER VATSAAS is a partner at Chestnut Cambronne PA in Minneapolis, MN. Mr. Vatsaas is an Adjunct Professor at the University of St. Thomas School of Law, where he teaches Advanced Family Law, and he has been named a Rising Star by Super Lawyers.
Notes
1 Sheridan Prasso, China’s Divorce Spike is a Warning to Rest of Locked-Down World, Bloomberg Businessweek, 3/31/2020.
2 Melissa Godin, As Cities Around the World Go on Lockdown, Victims of Domestic Violence Look for a Way Out, Time, 3/18/2020.
3 Continuing Operations of the Courts of the State of Minnesota Under Emergency Executive Order 20-33, No. ADM20-8001 (Minn. filed 4/9/2020).
4 Minn. Gen. R. Prac. 114.02(a)(10).
5 A comprehensive description of the RETR program can be found on the Minnesota Courts website: http://www.mncourts.gov/Find-Courts/Scott/covid-19-Information.aspx
6 Minn. Gen. R. Prac. 114.02(a)(2).