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'Justice delayed is justice denied': Coronavirus pandemic, stay-home order impacting family law in Oregon

To stem the spread of COVID-19 and protect public health, Oregon's chief justice put restrictions on all court operations until she orders otherwise.

PORTLAND, Ore. — The COVID-19 outbreak has changed most facets of people's lives around the globe.

Though employees are furloughed and events, meetings and trips are canceled or postponed, life is still happening. We still wake up every day and have to take care of our needs and obligations. For many families, that means matters in the family court system.

But the pandemic and Oregon Gov. Kate Brown's executive order requiring Oregonians to stay at home have changed the way every court in the state operates.

To stem the spread of COVID-19 and protect public health by minimizing in-person court business, Chief Justice Martha Walters put restrictions on all court operations until she orders otherwise.

If anything changes or there's a need to do so, she says she may order more restrictions or ease the ones in place.

MORE: Oregon Chief Justice Martha Walters' order

"Our goal is to continue to provide essential services while significantly minimizing the number of judges, staff, litigants and case participants, interpreters, and members of the public who come into our courthouses and offices," Chief Justice Walters wrote in the order. "We must do our part to help slow the spread of the COVID-19 virus and to minimize any health risks to our communities, while meeting our courts’ obligations to the public."

All criminal, civil and other trials, hearings and proceedings must be pushed back until after June 1, 2020. However, there are exceptions for required "essential proceedings". Many of those proceedings can be held remote through video conference or phone calls.

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Many domestic relations cases in the family law department fall under that order restricting proceedings, such as divorce cases, custody and modifications.

The order does allow courts to continue to accept filings and hold hearings on their scheduled date for protective order cases, including restraining orders, elder abuse protection orders, disabled abuse protection orders, sexual abuse protection orders and extreme risk protection orders. The order also allows motions on immediate danger orders. 

Multnomah County's Presiding Judge and Washington County's Presiding Judge issued orders about custody and parenting time during the COVID-19 pandemic, following Oregon Statewide Family Law Advisory Committee (SFLAC) recommendations. It encourages parents to follow their set parenting plan as closely as possible because it will provide for at least some consistency and stability in children's lives. The order advises treating every day as a regular school day, not a spring or summer break, and states that COVID-19 is not a reason to deny parenting time.

Multnomah County Circuit Court spokesperson Rachel McCarthy says she expects the court will have a "significant backlog of work after the Level 3 restrictions are lifted" and trials, hearings and proceedings start back up.

Holding off on so many proceedings is concerning, she says.

"Family law work is extremely important to children, families and others. We recognize that delaying hearings is not the best practice. But we are doing what we can to protect everyone who may need to come to court to the best of our ability. We wish we were not in this situation, but it was thrust upon us. We appreciate everyone’s understanding and patience," McCarthy said.

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Jill Brittle, a family attorney based in Portland, says she and the other attorneys at her firm had dozens and dozens of proceedings scheduled for April and May. While she can conduct quite a bit of work remotely to move her clients' cases forward, many critical proceedings now must wait.

Justice delayed is justice denied, Brittle says, and many families are frustrated.

"A lot of times there are things that are time-sensitive or that don’t make sense to wait six to nine months. For example, if you have a stay-home parent who needs temporary support while their divorce is pending it doesn’t help them to wait six months to have a judge say 'you should have had support back then'. We need support right now. So in those situations waiting has a real impact on people," Brittle said.

"People who’ve been waiting quite a while, often, to get their case heard. So there’s a lot of frustration and a lot of uncertainty about what that means, specifically people who weren’t sure how to handle their parenting time agreements with those changes."

When people are wrapped up in family court proceedings, emotions run high. Brittle says her clients are generally in crisis and often at one of the scariest points in their life.

"The most important things in their world, their children, their assets, those are all at risk. So then you add this layer of just general stress about this COVID crisis and the uncertainty that’s bringing to jobs and other things and it absolutely amplifies that fight or flight feeling we get when we’re in crisis. And people don’t make the best decisions when they’re in crisis," Brittle said.

While she isn't seeing an increase in calls from people looking to get divorced or needing help, she suspects she might when the stay home orders are lifted.

As the current situation plays out, Brittle expects to have more clients look to settle their domestic relations cases quickly, without litigation, through mediation or arbitration with a retired or senior judge rather than wait until summer or fall to have the courts decide.

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The economic ramifications of the COVID-19 outbreak and stay home orders are proving challenging for many couples intending to get divorced. Brittle says they've heard from people laid off concerned with how a lack of income would impact financial spousal support, and from those working through assets whose retirement accounts have taken a hit. If divorce or separation was hinging on selling a home, a quiet real estate market would affect that decision as well.

"It has a ripple effect on all the agreements people have made," Brittle added. 

Child support and custody have become an increasing point of contention for many families.

"If people have been laid off and they’re the person paying support suddenly the question becomes how do they do that? There is a process by which you can modify but of course it takes time and of course it’s through the court or through the administrative process at the Department of Justice if it's child support. So none of it is very fast. So people are trying to scramble and figure out in the short term what do they do," Brittle said.

For people experiencing domestic violence at home the past few weeks may be more dangerous, particularly if the abuser is out of work. 

If there are no restraining orders already in place or the victim does not file an order with the courts, the situation is riskier.

"Now we're seeing those people quarantined, essentially, together in the shelter-at-home situation. So that puts them more at risk and kids in the home are at risk for that same reason," Brittle added. "Adding the stress around the economy and jobs and the close quarters, that's always challenging in a domestic violence situation."

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