PHILADELPHIA BAR ASSOCIATION RESOLUTION ADDRESSING URGENT DOMESTIC RELATIONS ISSUES DURING AND AFTER THE COVID-19 PANDEMIC

WHEREAS, the Philadelphia Bar Association has a long history of supporting legislation and policies that ensure due process and transparency in the Domestic Relations Division of Family Court; and

WHEREAS, it is critically important for the health and safety of those using the Courts that the Pennsylvania Department of Health guidelines should be followed and that the Courts establish procedures and implement practices that follow applicable federal and state guidelines determined by medical and public health best practices from time to time, which include initial precautions such as:

  1. Taking temperatures prior to entry;
  2. Providing masks to those without masks;
  3. Providing hand sanitation stations in public areas;
  4. Ensuring that proper social distancing can occur, including sufficient space for minor children if school is not in session and daycare is not available;
  5. Making physical changes such as installing plexiglass partitions in areas where social distancing is not possible, such as courtrooms, negotiating areas, and waiting areas; and
  6. Cleaning and disinfecting highly touched surfaces frequently throughout the day and all surfaces daily.

WHEREAS, due to COVID-19 disease (COVID or pandemic) between 15,000 - 20,000 Domestic Relations proceedings have been cancelled or postponed and the Court is faced with a monumental task of rescheduling these proceedings in addition to scheduling proceedings on recent filings; and

WHEREAS, approximately 85-90% of litigants in Domestic Relations matters are self-represented and do not have the financial means to obtain counsel; and

WHEREAS, the Family Court Help Center that provides assistance and information to litigants, which is supported by the Domestic Relations Division of Family Court and staffed by volunteer attorneys and two legal aid organizations, Philadelphia Legal Assistance and Women Against Abuse, is unable to operate as usual due to the closure of the Family Court building due to COVID-19, which further necessitates the communication of clear, concise, and timely information regarding Court procedures and scheduling that is easily understood; and

WHEREAS, the Philadelphia Bar Association has previously supported the Family Law Section in crafting and presenting recommendations to the Domestic Relations Division of Family Court for safe, clear, and effective policies and procedures for reopening of the Court, resuming Court proceedings via advanced communications technology and other means, and providing notice to the public, as well as offering assistance to the Court in crafting and implementing policies and procedures for reopening and for rescheduling of proceedings; and

WHEREAS, the First Judicial District of Pennsylvania's President Judge Administrative Order (No. 34 of 2020 or Order 34), was issued on May 15, 2020, and amended on May 21, 2020, as provided here https://www.courts.phila.gov/pdf/regs/2020/34-of-2020-PJ-ORDER.pdf; and

WHEREAS, fair administration of justice, even in the time of a pandemic, cannot be infringed upon. Changes to court procedures must include notice and due process that ensures fair hearings, including adequate notice to parties and counsel of rescheduled proceedings and public notices that are widely disseminated so the public is aware of the changes; and

WHEREAS, the Court does not have an electronic filing system, instead relying on communication via email, which does not provide any documentation on whether an emailed document has been filed or docketed, nor does it allow for access to dockets by self-represented litigants; and

WHEREAS, many survivors of domestic violence were previously given notices to appear for proceedings that have since been cancelled and are awaiting hearings on Protection From Abuse petitions. Litigants have not been provided information that these proceedings have been canceled, other than the general announcement of the same in Order 34, nor have they been given information on how and when these proceedings will be rescheduled. Litigants who are filing new protection from abuse pleadings are not being provided with basic information regarding how and when hearings on the pleadings will be scheduled; and

WHEREAS, the Court has worked with the Philadelphia Sheriff’s Office to implement a procedure in which the Sheriff’s Office is automatically serving Protection from Abuse pleadings and temporary orders. However, there is not clear information given to litigants regarding how service will be made, how to find out if service has been made, and how to stop service from being made if a petitioner determines he/she does not wish to proceed with service; and judges and court staff are not aware of these procedures; and

WHEREAS, litigants and counsel have received as little as 30 minutes notice for a rescheduled proceeding, and litigants and counsel have received conflicting information from court staff via email and telephone regarding times for rescheduled protection from abuse proceedings, court staff have been provided very little information to relay to counsel and litigants regarding scheduling, and attorneys whose entry of appearance have been filed have not been notified of rescheduled proceedings; and

WHEREAS, Court staff and judges have not been informed of scheduling procedures, service procedures, and procedures for litigants to receive copies of orders issued by the Court during emergency custody proceedings and protection from abuse proceedings and are therefore unable to inform litigants of proper procedures; and

WHEREAS, many custody litigants had custody proceedings which had been scheduled 6 to 12 months previously and are now cancelled, and they have not been provided with any information regarding how and when these proceedings will be rescheduled; and

WHEREAS, despite the Administrative Order posted on the Court’s website, information is not easily found on the Court’s website; there is no simple, easy to read information regarding proceedings, rescheduling, and procedures for filing remotely; and the Court’s telephone message has not been updated and does not communicate that the physical building remains closed to the public and does not inform callers that all proceedings except for protracted and semi-protracted listings are cancelled; and

WHEREAS, many litigants are confused regarding whether proceedings are taking place and have been risking exposure to COVID and expending limited resources to travel to the Family Court to find the building closed and the matter canceled only upon their arrival at the building; and

WHEREAS, courts in other jurisdictions, locally and nationally, have provided guidance to custody litigants, parents, and caregivers on how custody orders should be enforced and followed during COVID-19, and have posted clear and concise information regarding court procedures during the pandemic regarding remote proceedings1; and

WHEREAS, the Court Nursery housed at Family Court remains closed due to COVID-19, leaving many families with no means of exercising supervised physical custodial rights with no guidance from the Court for an alternative to the Court nursery; and

WHEREAS, while the Court has published instructions on how litigants may file non-emergency pleadings and how to contact the Court for assistance in preparing filings, the Court has not disseminated that information in a manner that pro se litigants are able to adequately determine what needs to be done to file; and

NOW, THEREFORE, BE IT RESOLVED, that the Philadelphia Bar Association authorizes the Chancellor and/or the Chancellor's designee(s) to communicate the Philadelphia Bar Association's commitment to justice and fairness in the Philadelphia Court system, advocate for the rights of all litigants to notice and due process in light of changes in court hearing due to the COVID-19 pandemic, and urge the Courts to implement the following in response to the impact of the COVID-19 pandemic:

  1. Make procedural and policy changes to accommodate litigants impacted by the COVID-19 pandemic as set forth above in this resolution; and
  2. Take measures guided by medical, health and safety requirements to protect the health and safety of litigants, judges and court personnel who are required to be physically present in the Court; and
  3. Work with stakeholders, including members of the bench, private and public interest bar and the public to establish procedures for prioritizing listing of matters and providing notice of proceedings that will take place including but not limited to notice of manner in which it will be conducted (i.e. in person or via videoconference) and which will provide; adequate time for counsel and litigants to participate in rescheduled proceedings; and
  4. Create a policy that does not impose use of advanced communications technology on litigants who do not have access to the technology or familiarity with the technology, nor allow one party to participate by telephone and the other party by advanced communications technology, which could disadvantage the litigant on the phone; and
  5. Work with stakeholders on establishing and communicating options to litigants to resolve their matters outside of litigation such as through mediation and other alternative dispute resolution practices; and
  6. Create a working group comprised of Court personnel and Family Law Section members to address issues herein on an ongoing basis; and
  7. Clearly, concisely, and in plain language, post information on the Court’s website, in addition to a link to Order 34, regarding:
    1. Cancellation of court proceedings
    2. Details of how matters are being relisted
    3. Contact information to confirm the status of a listing and/or pending proceedings
    4. Filing pleadings by mail
    5. Filing pleadings via email
    6. Filing of emergency or expedited matters
    7. Acceptance of electronic signatures
    8. Confirmation, receipt and docketing of a pleading
    9. Processing payments filings done via email
    10. Processing In Forma Pauperis requests
    11. Date and time of filing upon receipt by the court or receipt of payment
    12. Safety protocols regarding COVID-19 for in-person proceedings and court appearances.
    This information should be provided in multiple languages, including Spanish, Chinese, Vietnamese, Russian, Arabic, French and Haitian (Creole); and
  8. When communicating with litigants with limited English proficiency, do so with the assistance of language translation or interpretation services; and
  9. Provide a means for self-represented litigants to access dockets; and
  10. Provide clear information regarding service of Protection from Abuse pleadings and accompanying documents, including how service shall be effectuated by the Sheriff’s Office and how litigants will be informed of service being made, as well as contact information for the litigant to request service not be made by the Sheriff’s Office once the litigant receives and reviews any temporary order to be served; and
  11. Provide guidelines for custody litigants, parents and caregivers on how custody orders should be enforced and followed during COVID-19, and on how parents and caregivers whose current custodial orders include supervised partial physical custody at the Court’s nursery can employ alternatives during the closure of the Court’s nursery; and
  12. Provide guidance for how evidence shall be provided to the Court to be introduced during video proceedings, including in what format evidence should be submitted and how evidence a litigant is seeking to admit during a proceeding should be provided to the Court either prior to or during a video proceeding.

AND BE IT FURTHER RESOLVED, that the Philadelphia Bar Association authorizes the Chancellor and/or the Chancellor's designee(s) to advocate for the proposed recommendations herein to be implemented and effectuated by the Court as soon as possible.

AND BE IT FURTHER RESOLVED, that the Chancellor and/or the Chancellor's designee(s) shall communicate the Philadelphia Bar Association's position to the Courts, the General Assembly, the Governor, the Attorney General, the City of Philadelphia, the legal profession, the media, and the public and take whatever additional action is necessary to effectuate this resolution.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
Adopted: June 24, 2020


1 Several examples are https://www.alleghenycourts.us/administration/EmergencyOperations.aspx; https://www.chesco.org/DocumentCenter/View/54275/Policy-of-the-Chester-County-Court-of-Common-Pleas-re-custody-exchanges-COVID-19?bidId=; https://www.floridasupremecourt.org/content/download/635269/7217957/05-11-2020-Best-