By: Bretta Z. Lewis
The phrase Mr. Rogers used to guide children in frightening situations, “Look for the Helpers,” has been quoted a lot lately. Now more than ever, those of us who are feeling frightened and alone are looking for someone to guide us through the darkness. Nowhere is this more true than in the realm of family law. People embroiled in domestic litigation were already in crisis before the COVID-19 pandemic, and they are finding themselves with even fewer answers than they had before the closures and social distancing began.
Mental health professionals have uniformly expressed concern about the cumulative effect of the current situation on families facing litigation. Dr. Robert Archer, a leading national expert in forensic psychology and adolescent development, emphasizes that the pandemic has added an extra layer of stress on families and children in conflict. Discussing the current impact of the changing situation, Dr. Archer stated, “Stress is viewed by psychologists as a cumulative experience in which new stressors add to the effects of pre-existing stress factors in making additional demands on the coping resources of family members.”
In addition to delays of trial dates, safety concerns have arisen. Domestic violence has increased in almost every state, and substance abuse is on the rise. Parents and children have no escape from each other’s demands, needs, and conflicts, and support groups are not meeting. Even when these resources are available again, people with elderly or immuno-compromised family members will be unsure of what activities are safe. The Courthouse and other areas where the general public congregates will still be worrisome to those trying to avoid illnesses, and everyone will be facing a stressful new reality.
Regarding the psychological impact of the current situation on families, Dr. Archer stated, “While it is too early to fully evaluate the psychological effects of our efforts to respond to the pandemic, it is already apparent that combining the effects of COVID-19 and domestic litigation regarding custody and visitation issues can have debilitating effects on the mental health functioning of family members.”
Given the “layering” impact of the isolation and anxiety caused by COVID, being able to obtain closure in divorces and custody matters seems particularly important. Even with Virginia courts officially re-opening May 18, 2020, the closures in March, April and early May have resulted in an extreme backlog of cases. In many cases, these matters are likely to be rescheduled in late 2020 or even early 2021, leaving those families, as well as people filing new petitions in limbo. Families in crisis are without guidance, without answers, and without stability. Passions are enflamed, and in some cases, people are taking advantage of the lack of accountability by exercising self-help. Legal professionals need to lead the way in alleviating the burden on the Courts, the litigants and their children.
In order to understand how we can help, it is important to understand the nuances of what families are experiencing when they face marital breakdown and litigation, including the plight of the children who are caught in the middle. Dr. Archer urges parents to “maintain positive and close relationships with their children.” He adds that “the quality of the parent – child relationship is the single best predictor of the child’s emotional development.” Keeping children and parents closely bonded even when the family does not remain in tact is critical for assisting children to grow into secure, productive adults.
The regular stressors of adolescence, coupled with the upheaval caused by divorce, and now the task of navigating the post-covid landscape has the potential to create overwhelming despair, a feeling of complete isolation, and, as businesses re-open, increased fear for our own health and personal safety. Dr. Archer points out that during adolescence, children tend to break away from their parents and turn more to friends for emotional support, but adolescents have now missed out on many milestones due to the restrictions on gatherings. Dr. Archer explains:
Adolescence is a developmental stage typically accompanied by move away from primary dependence on their parents to an increased reliance on their peer group and a sense of increased independence. This process has been made considerably more complicated and stressful with the closure of school campuses and the stay at home orders that have accompanied mandated physical distancing. Family members have been locked into their homes, peer-to-peer contacts have been limited, and adolescents may be feeling that they have been effectively ‘grounded’ through no fault of their own.
Along with the social isolation that everyone is currently experiencing, children who have parents in the midst of a divorce may be facing an unbearable emotional burden because they do not want to share their pain with their parents, who also seem overwhelmed. They may also feel conflicted due to the rift between the parents who used to seem united. So, what can we do? How can we stop the suffering and move forward? Who can help people who are struggling with these issues?
With the impact too fresh to study, and the remedies not yet in place, it is critical that we as concerned professionals step in to help. Despite not being the most obvious source of compassion and care, family law attorneys can make a big impact in assisting families in need, as well as the overwhelmed Courts, as Virginia begins to get back to business. Even with the current lack of quick access to the Courts, people with competent and caring advocates can still resolve their cases, even before hearings are set or rescheduled.
With skillful and responsible representation, parties can avoid a trial, and can move forward without having their “day in court.” It requires that the lawyers use the time and energy that would typically be used preparing aggressive pleadings and focus it into understanding and solving their client’s problems collaboratively.
Getting to know what concerns are most important to your client, what your client’s priorities are, and what your client most values and needs to feel whole, or as close to whole as possible, helps the practitioner to narrow down the issues and find areas where compromise is possible.
Knowing the client’s finances, assets, debts, and long term goals is crucial to devising a plan to move your client through the storm and into brighter days. Time that would normally be spent writing position letters to opposing counsel and explaining your client’s strength in preparation for battle can be used during this time to learn the ins and outs of the complexities of a marital estate that includes multifaceted assets.
Domestic attorneys who would normally race into Circuit Court with an aggressive complaint, answer, or counterclaim, accompanied by a request for Pendente Lite relief, can use that same drafting time for a different purpose. Once the attorney understands the issues and the client’s goals, the lawyer has an opportunity to prepare a comprehensive settlement proposal that uses creative solutions to allow the families to solve their practical problems in a way that provides as much relief and economic efficiency as possible. This approach seems especially important in a time when the future of retirement accounts, long term investments, property values, and employment stability is unknown.
Having an attorney who is familiar with newer technology can also be extremely helpful for litigants in the new landscape. Even as courts reopen and gatherings are allowed, people may still want to avail themselves of opportunities to stay in separate locations or to avoid the crowds at the courthouse. Lawyers who are now familiar and comfortable with Zoom, WebEx, Microsoft Teams, Google Meetings, and other similar applications have mastered the skill of meeting with clients remotely, and are able to discuss even confidential matters face to face without compromising security and without fear of exposing the client or attorney to contagions.
Competent and forward-thinking attorneys who are ahead of the curve have already formulated strategies to ensure that remote and office desktop firewalls are not breached when allowing use of a laptop camera and microphone. The Domestic Relations Team at Wolcott Rivers Gates recognizes that we have a responsibility to assist the Court and to lead the community into the post-pandemic phase of family law. We stand ready to lead the way in complying with ethical rules implicated as changes made during the pandemic may be adopted as long-term strategies for hearings, conferences, mediations and client meetings.
Lawyers who have been using these resources for the past few months can provide even the most reluctant client with the same level of service and security as with an in person meeting. We can also use these tools to negotiate with opposing Counsel. At Wolcott Rivers Gates, we have pioneered efforts to set up secure remote access and allowing clients to choose remote or in-person consultations and mediations. We have been working on solutions since the first inkling of a crisis, and now that the crisis is giving way to a new reality, we are among the most prepared to meet our clients’ needs in whatever format best suits them.
Many area firms have a similar level of commitment to using new strategies and assisting clients in the post-covid world, and we and our colleagues at those firms have been negotiating settlements in an effort to end the waiting game and to alleviate the massive number of people waiting to be heard in Court. We have seen a fantastic receptiveness among the local legal community from the Oceanfront to the Peninsula and beyond.
In this new landscape, we have found that if the lawyers and parties are not able reach an agreement with written offers, telephone conferences or video meetings, there is no need to wait until the Courts reopen, or to drive up costs filing motions that will take months to come before a Judge. For permanent resolution of matters that cannot be resolved with simple negotiation, an objective “neutral” opinion is needed, but it does not necessarily have to be a sitting judge. Mediation is an excellent option to access a very experienced neutral rather than waiting for the overburdened court to reschedule the case.
Mediation has been adapted to a virtual format with ease, and is available on demand, able to bend to the schedules of the attorneys, parties and the mediator. Unlike a trial or hearing, which must accommodate the constant influx of cases along with the backlog from the closures, mediation can be accessed in a short time frame and is not reliant on the availability of a specific judge, courtroom, or venue.
During court closures, mediations have been successful with a wide variety of creative solutions such as use of larger firm offices such as the facilities at Wolcott Rivers Gates, hotel suites, meeting and conference rooms of otherwise closed non-legal businesses, and seminar or ballrooms that are not currently hosting their usual events.
The McCammon Group, a private mediation business, employs many skilled mediators and has conducted over 100 mediations since the pandemic began, resolving the vast majority to the great satisfaction of all parties, even in cases in which settlement seemed impossible. One of McCammon’s mediators, The Honorable Winship Tower (Retired), specializes in complex equitable distribution divorce matters, and was a family law attorney before joining the Virginia Beach Juvenile and Domestic Bench in 2000. Judge Tower has reported a high level of success and satisfaction with remote mediation, and shared her thoughts for this article in hopes to help people facing this difficult time.
“As an experienced mediator in family law matters,” Judge Tower reports, “I viewed the Court closures and social distancing mandates as providing an opportunity to conduct mediations remotely. Some lawyers and their clients are skeptical of the effectiveness of platforms such as Zoom and WebEx. However, having now successfully concluded Zoom mediations, I join with Ms. Lewis in commending this process to family lawyers. It has proven to be a flexible, viable alternative to resolving family law matters creatively and constructively.” Judge Tower added that “clients have expressed relief and gratitude for the opportunity to bring certainty and closure and for the ability to move forward, even in the face of the pandemic.”
Keeping in mind the mental health issues facing children and families in the midst of family issues, it is incumbent on conscientious and compassionate legal practitioners to use creative options to streamline litigation. We may be better served foregoing Motions to Compel, Motions for Sanctions, and Objections to Venue, which may not yield long term benefits and may deplete precious resources. Instead, in many cases, working amicably with colleagues and professional neutrals like Judge Tower to preserve assets and focus on efficient, permanent resolution can be an especially useful approach as the financial ramifications of the last few months become more apparent.
In addition to allowing the parties to save the financial toll of litigation, the emotional and psychological benefit to the parties and children of having closure and a path forward cannot be underestimated. Giving some sense of certainty, and ending the feeling of isolation or being pulled between warring parents is a gift with an inestimable value that we can give to our children during this frightening time.
Dr. Archer reminds us that even without the anxiety and uncertainty created by a pandemic, children with parents who cooperate typically fare better as adults. “The consensus of research findings on coparenting and custody arrangements,” he says, “has shown that shared custody with the regular and frequent involvement of both parents in childcare is associated with greater resiliency and higher levels of functioning for children after parental separation and/or divorce.”
The key to turning this crisis into a problem solving opportunity is patience, persistence, and preparation. Finding a responsible, caring, creative practitioner who can lead troubled families to a path of light and closure is the first step. W. Brantley Basnight, III, Regina F. Amick, Ameet I. Habib and I make up the Domestic Litigation Team at Wolcott Rivers Gates. We are here to help.
Bretta Z. Lewis is a family law attorney and qualified Guardian Ad Litem for children with more than 20 years of experience. She specializes in complex litigation, including matters involving special needs children, domestic violence, emotional abuse concerns, mental health and substance abuse issues, and non-traditional family structures. She is an adjunct professor at William and Mary Law School, a member of several committees and boards within the Virginia Beach Community and serves the State Bar in multiple capacities. For more information about Bretta Z. Lewis or any of the attorneys at Wolcott Rivers Gates, please see our website.