San Diego Divorce Court to Reopen Tuesday the 26th
The San Diego County Superior Court (Family Law Division) has basically been closed since the middle of March, with the exception for the submission of paperwork to get an emergency temporary restraining order based on domestic violence or to get an emergency order regarding custody/visitation (and I mean a dire emergency). Other divisions of the Court, such as the Civil Division and Probate, have also basically been shut down. Criminal law and juvenile matters have been able to go forward to some greater extent because under the law, those cases are entitled to priority.
What this means is that family law hearings that were scheduled to be heard from March until now have been postponed. In many cases, people who had hearings during this time still do not know when their hearing is going to be.
But there is light at the end of the proverbial tunnel. After twice postponing its reopening date (first it was going to be April 3 and then it was going to be May 4), the San Diego Superior Court will be back in business, if that is the right phrase, on Tuesday, May 26. On that date, the Court, which has not allowed people in divorce and other family law cases, to file new cases or even new motions in older cases (or even wage assignments to collect support), will begin, in fact, accepting paperwork. The paperwork will be accepted in a number of ways, including via email and via drop box.
Although the acceptance of paperwork will result in hearing dates and the starting of the divorce process for many who have been waiting to move forward, the Court itself will not be having live trials or hearings or resemble anything like the fast paced atmosphere one sees on dramas such as Law and Order. Rather, in each courthouse, on the 26th and going forward, people will be limited in most cases to the first floor where clerks and their managers will be taking paperwork and probably processing requests for copies of paperwork from existing files.
The Court’s first priority will be to squeeze in those hearings that were supposed to take place during the ten weeks that the Court was basically closed. Hearings that were scheduled coincidentally to go forward in June and probably July will be pushed back. In this regard, the Court is not operating like an airline. In other words, when a flight gets canceled, the people scheduled on the next flight don’t give up their seats to accommodate the travelers scheduled for the first flight. The airline does not compound the problem by forcing people on the second flight to suffer the same inconvenience that the people on the first flight had to endure.
With regard to the Court, however, at least some of the matters cancelled during the ten week closure have to be heard first, as a matter of law. This applies to domestic violence cases more than anything else. When somebody gets a domestic violence restraining order, on an emergency basis, the responding party is supposed to be able to have a hearing 21 to 25 days later. The thinking has always been that a “surprise” restraining order that the restrained person never saw coming is offset by the restrained person’s right to very quickly tell her or his side of the story in just a matter of weeks and maybe get the restraining order dissolved. But with Covid-19, restraining orders that were issued before the closure and scheduled for a follow-up hearing during the closure, have been in place even if the judge, had he or she been aware of both sides’ versions of events when the original temporary restraining order was issued, might never have issued the restraining order in the first place.
According to the presiding judge of the Court, there are 12,639 family law cases from the closure period that have to be rescheduled. Moreover, according to the chief executive officer of the Court, because of the financial crisis affecting all sectors of life in California, the budget for the Court (as a whole, not just family law) will be going down ten percent, roughly. And certain expenses that were not necessary in the past will be necessary now, like making the courthouses safe while Covid-19 is still with us.
Basically, the judges don’t want to see us. That is not a joke; it’s a reflection on the prevailing way of handling Covid-19 in our county and in our state. Accordingly, by June 8, 2020, the Family Law Division will be using the video platform, Microsoft Teams, to conduct hearings. This will be a free service. This does not, in my opinion, mean that video appearances will be a permanent thing, but they might be. I kind of compare it to, once again, the airline. You can call the airline if you really want to, but the number is hard to find on the airline’s website, the wait time if you do call is enormous, while you wait a recording (with music in the background) repeatedly tells you that most of your questions can be answered by going to the airline website, and the company’s preference is that you complete your transaction on line. In short, to save time, the Court will be like a bunch of millennials who like texting and using social media but hate talking on the phone.
Certain matters, like emergency requests, will probably not be handled via Microsoft Teams, because these are last minute matters. But the emergency requests will also probably not be heard in live Court either, at least in most cases. Rather, the paperwork will be submitted to the judge, who will decide the matter in chambers and then return the paperwork to a clerk. Judges have always been allowed to do that. But some judges do like to ask questions at these emergency matters, so theoretically, if it’s safe to do so, there will be live emergency hearings sometime later in the year.
There are several caveats. These procedures only apply to the San Diego County Superior Court. Although the Courts are funded by the State and judges are appointed by the Governor, each county does things its own way. Some of the extremely small counties have actually been open during the pandemic, while the Los Angeles County Superior Court, the largest court system in the country, has been accepting paperwork for filing during the pandemic while adhering to a scheduling system similar to San Diego’s. Why the only county in California larger than San Diego has been able to accept paperwork for filing during the pandemic and San Diego has not, remains a major mystery.
The San Diego Court, like most of the other California courts, has been looking toward the future and the actual acceptance of people into the various Court facilities. Again, on the 26th, it looks like nobody will be able to get beyond the first floor. But in the future, they will. And when that time comes, everyone is going to have to wear a mask. That’s pretty much what you’re supposed to do at all public places that are open in California now. If you don’t like wearing a mask, you can turn around and not enter the bank, the animal grooming facility, or wherever you are doing errands. But many people are in court because they must be there, especially if they are responding to someone else’s allegations. So you really cannot say no to the mask requirement, especially when a law enforcement officer at the metal detector is the one enforcing the regulation.
Beyond the masking, temperature checks, which seem to be a part of most other sectors’ opening requirements, will be done at the metal screening facilities. Even judges will have their temperatures checked and will be wearing masks when there are actually hearings in the courtrooms. (Some of my best friends are judges, so I look forward to the sight of people in robes wearing masks.)
In addition, elevators will be limited to two persons. At a Zoom meeting today open to lawyers and members of the media, one judge even wondered about the practice of passing around exhibits from one lawyer to another and then up to the judge, with the bailiff possibly handling the exhibits as well, before the judge actually sees those exhibits. Nobody would have thought twice about this before, but they are now because of the spread of germs.
Of even greater concern will be the commencement of jury trials. Fortunately, in family law, we don’t have to worry about that, but you might be interested to know that jury trials in other areas may not begin until 2021 unless a higher type of court orders our judges to figure out a way and make them happen this year. There’s even been talk about renting hotel space, but the presiding judge says there is a real question about affording that type of expense.
In family law, the real problem has been an all or nothing approach. Certain pending matters involving parental relocation (frequently called move-aways) or, as stated above, follow-up hearings on domestic violence, should have been heard. Paperwork starting a divorce should have also been accepted because once a divorce is started and the paperwork is served, other factors, such as restrictions on taking the children out of California or canceling insurance, come into play, along with the right to do discovery. Many support staff have not been working during the closure, which does limit what could have been done (although social distancing could have been maintained even with, say, 50 percent of staff working, especially in the skyscraper courthouse downtown). Other less important matters –like who gets the furniture—certainly did not need to be heard during the closure. Most of the critical hearings could have been done over the phone, so I am certainly not advocating that members of the public should have been allowed in the facilities during the closure. And family law court does not require a perfect approach that one would expect during perfect times — live, in courtroom hearings or remote hearing with a video feature.
The Court has also repeatedly taken the position that paperwork could not been filed during the closure because it would have jeopardized the designation of the closed days as “court holidays” by the Chief Justice of California so as to avoid the statute of limitations and other deadlines from running in civil matters, but that is really a non sequitur and a theory that did not stop other trial courts in California from filing documents.
Still, the Court’s position seems less strange when one understands that trial courts in a number of other states, including Pennsylvania and New York, have also been closed, even though none of the counties in those two states are as big as San Diego. (That’s because New York City, the largest city in the United States, is spread out into five counties. Compare that to Los Angeles, which is all in one county [Los Angeles].)