Matrimonial and family law matters, always a difficult endeavor for both lawyers and clients, have become even more so with the rapid rise of the novel coronavirus pandemic. This blog will explain the many changes in the way New York courts, particularly those in Nassau, Suffolk and Queens, are handling these cases during this trying time.
The New York State court system is among the busiest in the world. While many other jurisdictions have transitioned entirely to electronic case filing systems, New York has not done so. E-filing is only available in some counties and, as a result, many cases, including matrimonial cases, require hard copy filings of all papers. Thus, our courts have never been in a position to operate remotely on a full-scale basis, a necessity now that social contact and physical visits to the court house have been widely curtailed.
On March 22, 2020, the court system’s initial response to the pandemic was announced by Chief Administrative Judge Lawrence Marks. Judge Marks barred all new filings of any kind, in any court, with the exception of certain matters deemed essential or emergent. As it relates to family law and matrimonial proceedings, the following matters were designated essential:
1. Emergency family offense petitions /temporary orders of protection in Family Court.
2. Orders to show cause and stipulations on submission in Family Court.
3. In Supreme Court, temporary orders of protection (including but not limited to those relating to domestic violence) and emergency applications related to the coronavirus.
4. Any other matters the court deems “essential” on a case-by-case basis.
Except for these limited types of cases and filings, current and prospective litigants were left without judicial recourse.
Each county then developed its own mechanisms for dealing with essential filings. On March 26, 2020, Nassau courts, in keeping with the policy of limiting personal contact and encouraging social distancing, announced that all matters would be processed and heard in the Nassau County court house at 260 Old Country Road, with a rotating roster of judges to hear each type of matter. In-person filings were strongly discouraged. Matrimonial proceedings were to be conducted via Skype, with the judge, each attorney, and possibly the parties appearing from separate locations.
Suffolk courts followed suit, designating the same types of matrimonial and family law matters as essential. Additionally, all matters were consolidated in the John P. Cohalan Court Complex in Central Islip with a skeleton staff of dedicated court officers and clerks assigned to the building.
On April 8, 2020, Judge Marks issued a directive expanding court access by instituting a virtual court model beginning on April 13th. His order directed courts to render decisions on fully submitted motions, and to identify and conference, by Skype or telephone, cases that might be the subject of possible resolution.
In response, the Nassau County Supreme Court set up a protocol for conferences with the court for pending matters. Each matrimonial Judge was given a dedicated email address specifically for that purpose. Additionally, a form was made available on the court website for attorneys to use to request a court conference. If a request is granted, the assigned judge e-mails a Skype link to the attorneys, and parties may be directed to attend. These conferences may or may not be on the record in the court’s discretion.
Suffolk County soon followed suit with dedicated emails for matrimonial judges, all of which are publicly available on the court’s website. Queens and New York counties set up similar protocols to allow attorneys to request conferences in pending matters.
Subsequently, Judge Marks directed that, effective May 4th, parties would be permitted to file new motions in (again) only pending cases, and opposition or reply papers in connection with motions filed prior to the pandemic. Despite the unavailability of the official e-filing system in certain counties, the directive provides that all filings must be done electronically and provides for the use of an alternative electronic delivery system (EDDS) in cases that are not presently maintained through the e-filing system. User instructions for EDDS are available on the courts’ website.
Justices Jeffrey Goldstein and Andrew Crecca, the supervising judges of the matrimonial parts in Nassau and Suffolk, respectively, have kept practitioners apprised of the courts’ operations through virtual town halls. Both have advised that the matrimonial judges of their counties have been hearing hundreds of cases through virtual means. In Nassau, judges are reaching out to counsel on previously submitted motions in the hopes of resolving the matters without further delay. If unsuccessful, these judges are working on decisions with such swift efficiency that Judge Goodstein advised that the pre-existing backlog of motions will be all but eliminated.
As to the filing of new motions in pending cases, Nassau judges require the parties to first request permission before moving, after which a conference will be held before the motion may be filed. If the subject of the motion cannot be resolved during the conference, all motion papers must be served electronically. Then, both parties must consent to use of the official e-filing system by filing a request on EDDS, after which all motion papers will be electronically filed.
Judge Goodstein also addressed whether post-judgment applications will be permitted, given that cases in which a judgment has been entered may not be considered pending. Fortunately for litigants in Nassau, the answer is yes. As such, where a payor spouse has lost his job, he/she can seek relief by a post judgment motion. Similarly, if a payor spouse opts for self-help by stopping or reducing support or maintenance payments, the payee spouse can seek relief.
Courts in Nassau will also entertain as essential and/or emergent new proceedings concerning issues of parental access to children, for example where informal visitation schedules have been upended because of concerns over Covid-19. However, parents who seek to abrogate custody agreements based on pandemic-related concerns would be wise to heed the advice of Judge Jeffrey Sunshine, presently the statewide administrative judge for matrimonial matters, who opined in the New York Law Journal that conduct by a non-compliant parent or parents during the pandemic will be considered in any future applications when the courts reopen on a wider scale. (NYLJ 3/27/20).
Suffolk, by and large, follows the same protocol described above with the exception that judges there do not require permission to file a new motion in a pending matter, and at present will continue to use EDDS with the county-wide use of the ECF system on the horizon. Queens and New York counties at this time do not seem to have uniform protocols, perhaps because each lacks a supervising matrimonial judge. However, those counties are entertaining motions on pending matters, conferences on active cases and emergency orders to show cause.
Just to illustrate how quickly changes are occurring within the New York court system, on the eve of this article’s publication it was announced that courts in several upstate counties will be opening on May 18, though with strict health guidelines in place. None of these changes affect our downstate courts.
Clearly, navigating the court system has become more complex than ever before. Given the ever changing nature of matrimonial and family law proceedings during this pandemic, and the fact that that COVID-19 is expected to impact our lives for months to come, it is essential that litigants have competent counsel.
Jeffrey D. Lebowitz is a retired NYS Supreme Court Justice who for many years presided over the Matrimonial term in Queens County. He is presently Special Counsel at Jaspan Schlesinger LLP. Retired Justice Lebowitz is a member of the NYSBA Family Law Executive committee and a member of the Statewide Matrimonial Practices committee, chaired by the Honorable Jeffrey Sunshine. He appeared on the Super Lawyers list in 2019. He can be reached at firstname.lastname@example.org or (516) 746-8000.