Appreciation. Innovation. Frustration. All can be heard in New York County Supreme Court Justice Matthew Cooper’s May 18, 2020 decision in Chu v. Lin, dealing with parenting and marital residence issues in an ongoing divorce action. Justice Cooper begins with praise of the New York court system’s stepping up to adapt and press on during the COVID-19 pandemic. Indeed, it may “its finest hour.” At the same time, he bemoans the inadequacy of the new technology.
“While the true heroes of this medical emergency are undoubtedly health care workers, first responders, and other front-line workers who have put their health, and even their lives, on the line caring for others and supplying vital goods and services, an immense amount of credit must also be given to those who have managed to keep our courts open and running under the most difficult of circumstances imaginable. An independent, operational court system may not be an absolute necessity for sustaining life itself, but it is nevertheless an essential component of life as we know it in this country, as it is of any full-fledged constitutional democracy.”
In Chu, the pandemic exacerbated existing problems with parental access. Throughout the divorce action’s two-year history, a lasting resolution on custody and parental access had been stymied by a toxic mix of dysfunctional parenting, allegations of domestic violence, the existence of a Family Court Order of Protection, and an inability to abide by court orders.
Here, the husband first sought to compel the wife to comply with the interim parenting order, having been unable to see his children since the advent of the crisis. Shortly thereafter, the father brought a second motion, this time to hold wife in contempt of court not only for the parenting issue, but also to redress the wife’s failure to vacate the marital residence so that it could be sold in accordance with a prior order and an existing contract of sale that required it be vacant at closing.
Working from his kitchen, Justice Cooper praised the efforts of dedicated and skilled court clerks, court officers, technology specialists, and administrators, noting judges have been able to conference cases, hear oral argument, maintain calendars, and issue orders, and even hold full-scale bench trials and evidentiary hearings with the judge, the attorneys, the litigants, and the court reporter all in different locations.
But Justice Cooper noted, virtual proceedings are an inadequate, if necessary, substitute for actual ones. The presence of the parties in the courtroom is needed for the protracted, intensive conferencing that is almost always required if any progress is to be made towards resolving the matter. In order to reasonably replicate the in-court experience, the judge would need a videoconferencing platform with the kind of enhanced features that would “allow me to shuttle the parties and their lawyers back and forth to meet with me or my court attorneys in a virtual robing room, direct the attorneys to go out and speak to their clients privately in a virtual hallway, and announce to all sides that they should be prepared to spend the remainder of the day together in a virtual courthouse until there is a resolution.”
[In fact, many of these features are available using Zoom. The court system has chosen to use Skype videoconferencing, I believe, for enhanced security. With Zoom, the host may send the parties, with or without there counsel to separate breakout rooms. A participant may be sent to a waiting room. The judge can speak to the Law Clerk, or one or both counsel alone or together. Each attorney can speak in private with the client. Any participant can send chat messages to all present or just a selected participant (e.g., lawyer to client or vice versa, “May I speak to you privately?”).
In fact, the Zoom platform is being used quite successfully both for Mediation and the Collaborative Divorce process, making full use of these features.
But as Judge Cooper notes, it cannot be the same. In the courthouse, the judge in order to assess credibility can closely view the parties both on and off the witness stand, scrutinize their body language, note how they react to what happens in the courtroom, and observe how they otherwise comport themselves throughout the proceedings. Whether in a trial or an ADR setting, getting a full sense of body language helps. [With lower on-the-record burdens, ADR proceedings without in-person appearances have been very successful.]
Justice Cooper was able to solve the husband’s inability to see his children without having a hearing. Based on the motion papers, as augmented by oral argument and coupled with a follow-up report from the Attorney for the Children, the Court determined by a prior order what further directives were needed. To see it through, Justice Cooper now directed that social workers from Comprehensive Family Services, an independent family support agency, be physically present to supervise the mandated transfers of the children from one parent to the other.
Recognition needs to be given to the people at Comprehensive Family Services, and all those other dedicated individuals, both in government and out, who have been willing to leave the safety of their homes to provide vital services to children and families in crisis. They, too, are unsung heroes helping to keep the social fabric from fraying while we are in these fraught and frightening times.
However, Justice Cooper held that a videoconference would be inadequate for a contempt hearing, where the remedy might be sentencing the wife to a term of imprisonment. An additional hurdle was the request by the wife for a Mandarin interpreter. [Other than through a separate phone connection between the wife and the interpreter], simultaneous translation in the ear of the wife would not be possible.
Moreover, other restrictions engendered by the pandemic foreclosed the implementation of much of the relief that husband sought.
It would be unthinkable to incarcerate anybody for an offense like this during the COVID-19 outbreak, with the serious threat of infection rendered even more acute by the inevitable conditions of incarceration.
Moreover, by Executive Order 202.8, issued March 20, 2020, the Governor directed there can be “no enforcement of . . . an eviction of any tenant residential or commercial. . .for a period of ninety days.” The power to evict the wife, whether by a Sheriff’s Writ of Assistance or any other means, could not be exercised at this time.
Justice Cooper, however, was not left without a remedy. Because the apartment was marital property, the proceeds from any eventual sale, whether to the present buyer under contract, or a future one (or if there is a foreclosure, then a sale by the bank), will be distributed equitably, not equally, in accordance with Domestic Relations Law §236 B. Justice Cooper found that the husband’s share of the proceeds shall be increased and wife’s share decreased in accordance with whatever loss in the selling price is attributable to wife having prevented the sale from closing on time. The wife would be held fully liable for all damages sought by the buyer or any other aggrieved third-party resulting from the inability to close, insofar as that inability was caused by wife’s failure to vacate.