Timely Resolution of Family Law Disputes is Necessary
A recent story in the local news demonstrated the real impact that Covid has had on our legal system. For months, Wake County Family Court cases were routinely continued over and over again because courts were closed, or only temporary, non-prejudicial hearings were possible because they could be conducted remotely via Webex. The court system is not to blame for the pandemic, but the shutdowns and closures have created a backlog in the court system that has left families desperate for resolution of critical issues, including custody, child support, and spousal support.
‘These are real people with real issues:’ Court backlog from COVID-19 devastates North Carolina families – ABC11 Raleigh-Durham
So, what can you do when the courts aren’t open or available to make decisions in your case?
Have a back up plan, if possible. In financial support cases, a stay-at-home parent may be forced to go to court to get an order requiring her spouse to provide financial assistance for her and the children. In some situations, we may advise a client to have a reserve of funds to pay household bills and get by for a period of at least six months, as we cannot guarantee if and when your case will be heard by a judge, and we know that you still need money to pay basic living expenses. This may involve taking loans from friends or relatives or living off credit cards just to survive.
Having a back up plan in a custody case in much more difficult, as it often requires compromise and an agreement between the parents. If your case is continued and you won’t have a trial for months down the road, it is important to have a temporary schedule in place. Parents and their lawyers should understand that children need stability, consistency, and routine and try to work out an interim arrangement that is not prejudicial to either party once there is a full trial on the merits of the case. If the lawyers cannot work out an interim agreement, then try to schedule a temporary hearing. Your assigned Family Court Judge or an Overflow Courtroom Judge may be able to hear the case remotely or have a short, one-hour in person hearing and implement a temporary schedule. Temporary hearings can be tough though. The evidence is limited, and there are strict time constraints. Also, if the judge hearing your case is not your assigned judge, the overflow judge may be reluctant to make big changes at the temporary stage, instead leaving that to the judge who is assigned to the case to make those decisions.
Explore alternative dispute resolution methods, like mediation or arbitration. We are problem solvers. Even when the courts were fully open, we never considered court as the first and best way to solve a problem. When you go to court, you lose all control over the decision making and the outcome of your case. Most parents don’t want third parties, who don’t know them or their kids and who don’t necessarily embrace their morals and values making decisions for their children that will impact their children’s lives forever. Most spouses don’t want to sit in a public forum and talk about the intimate details of their marriage, admitting their shortcomings or disclosing painful abuse. Most people don’t want to spend thousands and thousands of dollars in legal fees, with no real idea of what the judge will ultimately do.
Mediation is a great tool to resolve a problem outside of court. While you and your spouse have to agree on the terms of the settlement, with mediation, you have control over the outcome of the case. Learn more about mediation as a way to solve disputes. If your case is one where “hell would sooner freeze over” before you and your spouse could reach an agreement, then you might consider arbitration. Arbitration is simply a private trial. You hire a family law attorney to serve as the judge (arbitrator). In North Carolina, we have a Family Law Arbitration Act that provides a mechanism for resolving alimony, custody, child support, and equitable distribution issues by arbitration. If the court can’t hear your case because of the backlog, you might just be able to arbitrate the issues. Learn more about arbitration as a way to solve a problem.
The backlog in the court system is real and is not likely to change any time in the immediate future. Lawyers and litigants alike need to embrace other ways to help families find timely solutions to their disputes.