As the St. Louis Post-Dispatch reported recently, the St. Louis County Circuit Court and the St. Louis City Circuit Court both have had staff test positive for the COVID-19 virus, and as such have returned to “Phase Zero” in their status. What, exactly, is “Phase Zero” and what impact will that have on a litigant having access to the family court?
The Missouri Supreme Court, at the onset of the pandemic, crafted a set of guidelines that circuit courts and appellate courts must follow to protect the safety of staff and the general public. At Phase Zero, the courthouse should suspend all in-person proceedings except for emergency proceedings relating to child custody and abuse or neglect. And even in these emergency situations, the judge in the case has the discretion to limit in-person access. The Phase Zero has been described by the Court as the “gateway” to broader in-person access, meaning that until certain criteria regarding the virus in the courthouse and in the community are met, no in-person access should occur.
What are those criteria?
There are several: no positive cases in the courthouse for 14 consecutive days; decrease in community spread of the virus; relaxation of restrictions in the county; and consultation with public health officials. In general, until a county and a court have more control over the virus, the court should remain essentially closed off to in-person access.
If these criteria are satisfied, a court can move to “Phase One,” which allows some additional access to the courthouse in person, but only in extraordinary cases. Only when a court goes another 14 consecutive days without a positive test in the courthouse and the community shows a decrease in the spread of the virus should a court move to “Phase Two,” at which time resumption of in-person hearings in family court cases could resume under circumstances intended to limit the spread of the virus – masks worn in court by all present, social distancing set up in each courtroom and throughout the courthouse, increased hygiene and disinfecting, and a cap on the number of people in the courthouse at any one time.
Given that the courts have generally not advanced past Phase One so far, and the rate of the virus in the community remains high, it is not likely that in the immediate future the courts will advance much beyond Phase One. What impact does that have for a family court case?
In actuality, not as much as you might think. The courts have adapted to using technology to hold more and more court-related proceedings through Zoom. Attorneys can have conferences with the judge, parties can be present virtually. More courts have begun holding hearings virtually as well. So cases do proceed. Remember, the courts have been working with electronic filing for years now; adding a virtual component for some otherwise in-person proceedings is not substantially different, particularly for conferencing or arguing motions. Holding evidentiary hearings are more complex matters, but the courts are working quickly on coming up with ways to have these virtually and protect the integrity of the proceeding. Because family court matters do not take place in front of a jury, many of the due process concerns are reduced in a virtual setting.
In sum, if you are concerned that the pandemic is “freezing” all family law cases, you would be wrong. Courts are continuing to move their dockets. But for those cases that need an in-person hearing on the merits, most family cases proceed essentially as normal.
If you have questions about family court proceedings during COVID-19, contact us – we can help.