By Linda A. Ouellette
Due to the health crisis arising from the COVID-19 pandemic, Massachusetts courts (including the Probate and Family Court Department) remain closed to the public. However, the courts are still in operation “behind the scenes.” While most hearings (including uncontested matters and trials) will be postponed or scheduled to a date when the courthouses are expected to be open to the public, emergency hearings are being conducted by telephone and videoconference throughout the Commonwealth.
But what is considered an “emergency”?
While some matters, such as restraining orders, petitions seeking a temporary guardian or conservator, and requests for injunctive relief, are obvious emergencies, there are numerous other matters that will hinge of the specific underlying circumstances. The determination of whether such a matter is an emergency necessitating an immediate hearing requires the moving party to demonstrate specific “exceptional or exigent circumstances.” Only upon doing so will a hearing be scheduled before a judge.
Emergency disputes regarding children, particularly those concerning the children’s health and safety and/or their ability to spend time with each parent notwithstanding COVID-19 restrictions, are seemingly the most likely to receive a hearing. Legitimate concerns about each parent’s ability and willingness to observe social distancing and shelter-at-home recommendations, as well as each parent’s actual or potential exposure to COVID-19, may require the court’s assistance in adjusting the parenting schedule if the parties cannot agree. However, a parent’s use of COVID-19 concerns as a pretense for denying parenting time to the other parent has been strongly discouraged by the courts and may give rise to emergency relief.
Certain financial issues may also need to be addressed at emergency hearings during the pandemic. These may include requests for modification, reduction, or suspension of alimony and/or child support orders due to the payor’s unemployment or recent business shutdown as well as contempt actions to address a party’s failure to pay support. The courts are being inundated with these types of requests, especially as the economic fallout from COVID-19 continues and worsens, so the specific circumstances will matter greatly. Building a strong case for an emergency hearing is the key to relief during the ongoing pandemic. The vast majority of these cases will unfortunately need to be heard when the courthouses re-open to the public, with judges addressing periods of nonpayment in orders granting retroactive relief.
Whether the issues are financial or non-financial, it is up to the litigant (and the lawyer) to distinguish his or her case from the multitude of others presenting similar issues. In most of the probate and family courts, sessions clerks, judicial case managers, and judicial secretaries are acting as the “gatekeepers” on requests for emergency hearings -- screening cases and deciding whether there is sufficient “emergency” to require an immediate hearing. The courts in each county are also handling emergency matters according to their own individual policies and standing orders, and they are not always consistent from county to county. Identifying and connecting with the proper personnel at each courthouse is critical.
The various COVID-19 orders and policies of the probate and family courts can be found here.
The attorneys in the Family Law Group at Lawson & Weitzen, LLP are available by e-mail, telephone, and videoconference to assist in scheduling and representing clients at emergency hearings and handing all of your family law needs during, and after, the COVID-19 pandemic. Don’t hesitate to contact us to see how we can help.