We are here to help: Family law as a healing force in a time of uncertainty

“Look for the helpers,” a phrase Mr. Rogers used to help guide children through frightening situations, has been quoted a lot lately. Those of us who are feeling frightened and alone are looking for someone to guide us through the darkness now more than ever.

Perhaps this is most true in the realm of family law. People embroiled in domestic litigation were already in crisis before the COVID-19 pandemic; now, they are finding themselves with even fewer answers than they had before the closures and social distancing began.

Mental health professionals are also concerned about the effect of the current situation on families facing litigation. 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, stating, “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 delayed 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 able to meet in-person as they did before. Even when these resources are available again, people with elderly or immuno-compromised family members likely 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.

“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,” Archer said.

Archer urges parents to “maintain positive and close relationships with their children. The quality of the parent – child relationship is the single best predictor of the child’s emotional development.”

Given the “layering” impact of the isolation and anxiety caused by COVID-19, being able to obtain closure in divorces and custody matters seems particularly important. Even with Virginia courts officially reopening as of May 18, 2020, the closures in March, April and early May have resulted in an extreme backlog of cases. These matters are likely to be rescheduled in late 2020 or even early 2021, leaving the families whose cases were continued–, as well as people filing new petitions – in limbo. Families in crisis are without guidance, without answers and without stability. Passions are inflamed, and in some cases, people are taking advantage of the lack of accountability by exercising self-help. Given all of these issues, legal professionals need to lead the way in alleviating the burden on the courts, the litigants and their children.

With the impact still 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 trial, and can move forward without having their “day in court.”

With skillful and responsible representation, parties can avoid 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.

Instead of relying heavily on traditional pleadings, discovery and strategizing and preparing for trial, it may be wiser in this landscape to spend the same time and resources to focus on comprehensive settlement proposals and using creative solutions to allow families to solve their 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.

Attorneys should also spend some time becoming comfortable with technological tools such as Zoom, WebEx, Microsoft Teams, Google Meetings and other similar applications so that they can meet with clients remotely, and discuss even confidential matters without compromising security and without fear of exposing the client or attorney to contagions.

Many lawyers have found that mediation is an excellent option if negotiations reach an impasse rather than waiting for the overburdened court to reschedule the case.  The Retired Honorable Winship Tower, an experienced mediator in the Hampton Roads area, 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, I viewed the court closures and social distancing mandates as providing an opportunity to conduct mediations remotely,” she said. “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 [commend] 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.”

With so much uncertainty ahead of us, what we know now is that people are suffering. Our clients need us, and we should heed their call.

As Virginia lawyers, we have an excellent opportunity to return to the esteemed position of stewardship and helpfulness that lawyers held in a past era. Let’s be helpers.

Bretta Z. Lewis practices law with the Virginia Beach firm of Wolcott Rivers Gates.