The pandemic spawned a better model for family courts

With the recent news that the Biden administration will end the COVID-19 public health emergencies this spring, it is time to take stock of the different policies and adaptations that came out of the lockdowns. Some, such as school closures, were obviously a failure. Others, such as remote work, have had mixed results. But one area where there seems to have been actual improvement from previous practice is in the operation of family courts.

Initially, of course, the lockdowns meant that courts were shut down in most states, creating long waits and lack of access to vital judicial proceedings. But the courts quickly pivoted. Indeed, despite initial technological challenges, the switch to remote family court hearings saved time and money, increased participation in court proceedings, improved legal representation for families living in rural areas, and created a more welcoming environment for children. This week, the American Enterprise Institute is releasing a report, authored by Maura Corrigan, former director of Michigan Health and Human Services, explaining what we can learn from how these courts operated and what practices we should use in the post-pandemic era.

Judges are notoriously reluctant to change, yet this massive shift happened nearly overnight with no advance planning, guidebooks or study groups. In delivering a new kind of justice, these public servants showed their grit and ingenuity. Most importantly, they kept faith with their oaths to uphold the Constitution and laws of the United States. 

Even before the pandemic, family courts were plagued by long delays. Families waited months or even years between hearings. Parents and foster parents often had to take days off from work and children missed days of school, if they were able to attend at all. Even with all this rearrangement of schedules, hearings were frequently canceled or postponed.

But because of the way the courts are structured, the lockdowns really lit a fire under them. Family courts are unique because state child welfare programs are federally funded. In March 2020, the U.S. Department of Health and Human Services’ Children’s Bureau wrote an advisory to state child welfare judicial leaders that the bureau was powerless to waive federal statutory time requirements in child protection cases. Thus, a state’s failure to satisfy requirements would result in loss of federal funding, particularly federal Title IV-E funding.

So, statutory requirements remained in place. Thus, “contrary to the welfare” findings must be made in the first hearing following a child’s removal, “reasonable efforts to prevent removal” findings must be made within 60 days of a child’s removal, and reasonable efforts to finalize a permanency plan must occur within 12 months of a child’s entry into foster care.

For family courts across the country, the pressure was intense. Some states made video-conferencing kiosks available in courthouses, libraries and social service agencies. Some courts conducted telephone-only hearings. Court staff assisted participants to ensure they could connect telephonically or by videoconference. While this required some adaptation, studies like one conducted by researchers under the auspices of University of Nevada at Reno found that the vast majority of court and agency personnel and parents wanted to continue remote hearings in child welfare cases.

Indeed, three major studies done on remote hearings found benefits to the practice, particularly in terms of participation. Parties to these hearings appreciated the end of “cattle call” docketing, which forced participants to wait (in person) until their case was called — a significant waste of time and resources for parties, attorneys, witnesses, the public and the judges. Under the new remote system, the times for these hearings were precise, wasting neither the time nor the resources of any parties to the case or professionals representing them.

There were also many anecdotal reports that children felt more comfortable in remote hearings. It can be intimidating to speak to a courtroom of adults about difficult or traumatic experiences at home, but on a screen it can be easier.

That said, some advocates have argued that there are particular kinds of hearings — most notably, parental rights terminations — that should be held in person. Though the courts generally have upheld the legitimacy of remote hearings even for those proceedings, there must be safeguards in place to ensure that parents have the ability to properly respond in these cases. State lawmakers or state supreme courts should codify which sorts of hearings can be remote and which cannot. 

Whatever the decision, it is up to the states to hire and train technical bailiffs to help bridge the digital divide. We were impressed with Arizona’s consistent and accessible model of precisely listing which hearings are remote and which are in person. Even as states move to this model, it is vital to provide transparency about when and where hearings are conducted and to ensure that all participants, regardless of their resources, have access to justice.

Naomi Schaefer Riley is a senior fellow at the American Enterprise Institute, where she focuses on child welfare and foster care issues. Maura Corrigan, the former director of Michigan Health and Human Services, contributed to this report.