When the COVID-19 pandemic began in March 2020, few people realized how serious an impact it would have on the entire world, the ways it would change our daily lives, and for how long it would go on. Over a year later, with the end seemingly in sight but not quite yet within reach, the legal profession has been, perhaps, one of the professions most transformed as a result of the pandemic.
With the assistance of videoconferencing platforms such as Skype, Zoom, Webex, and more, legal proceedings in most states moved from in-person courtrooms to virtual courtrooms. In custody proceedings, there are often multiple people involved in addition to the parties and their counsel. Judges, attorneys, guardians ad litem and child representatives, therapists, evaluators, and the parents, or parties to the litigation, have learned to conduct remote meetings, therapy sessions, evaluations, parenting time/visitation, and court proceedings, all with the principal objective of protecting the best interests of the children in the case.
Guardian ad Litem and Child Representative Remote Meetings with Children
In cases where there is a need to allocate parental decision-making responsibility, parenting time, or both—commonly referred to as “custody”—a guardian ad litem or child representative is often appointed by the court to represent the children. Statutes regarding the role of a guardian ad litem or child representative vary by state, but their obligation is to conduct an investigation to provide the court with the information that it needs to make the appropriate decision. One of the primary aspects of this investigation is to meet the child or children, and, if possible, a meeting should be held when the children are in the possession of each parent. Some guardians ad litem or child representatives have met with children outdoors during the pandemic. While this is feasible during nice weather or year-round in mild climates, meeting outdoors during the Chicago winter, for example, is not possible. Therefore, many attorneys have conducted remote meetings with their child clients for the past year, despite some difficulties.
Rather than children having to be picked up from school and travel to their guardian ad litem’s or child representative’s office for a meeting, they can sign onto a virtual meeting from home right after school ends for the day. This may give children an added layer of comfort; rather than meeting with a stranger in an intimidating law office, they are “meeting” with them from their own home, but this is not an equivalent exchange for an actual home visit. Although one of the benefits of remote meetings has been the amount of time saved and flexibility in scheduling, there are other complications.
With a virtual home visit, the child may have a lack of privacy at home with their guardian ad litem or child representative. It can be difficult for the attorney to determine if a parent has remained in the room or nearby to where the child is conducting the Zoom meeting, which may prevent the child from speaking freely and honestly or make them feel pressured into saying what they think the parent wants to hear. A significant mechanism to ease a child into talking freely is a home visit and going with the child to their room to look at their belongings/toys. This results in a conversation that is quite valuable to learn about the child and helps develop rapport with the child, which results in critical information being shared. Additionally, socioeconomic differences between homes may impact children’s ability to meet privately with their guardian ad litem or child representative as well. For example, a child from a lower-income household may not have their own iPad or phone to conduct a meeting, or there may not be sufficient space in the family home for the child to meet privately without other family members overhearing or interrupting. In order to ensure that there is privacy for the child, when scheduling the meeting, the attorney should confirm that the child will have an electronic device and space to use for the duration of the meeting. At the beginning of the meeting, ask the child to confirm that they are alone. If a parent is still in the room or nearby, tell the parent that you will bring them in at the end of the meeting to talk together, and schedule a one-on-one meeting with the parent if you have not done so already. Sometimes asking that the child walk around their home or room helps with those issues.
Meeting with children remotely can pose additional challenges to a guardian ad litem or child representative. With extremely young children, e.g., infants to three years old, the primary purpose of a meeting with the child and parent is to see the child’s appearance and health, gauge their developmental progress, and observe how the parent reacts to their behavior. It can be difficult to observe these behaviors and interactions over video. Similarly, young children, e.g., ages three to approximately ten, may have trouble remaining focused during a video chat, especially if the child is participating in remote schooling, where he or she has to try learning through a screen all day long. Likewise, a guardian ad litem or child representative may have difficulty establishing a connection with children with special needs via videoconference, particularly those children who are non-verbal or who have emotional, social, or behavioral disorders. For these types of meetings, be conversational so that the child feels comfortable, but keep the meeting as short as possible to get the information you need.
Remote meetings with children may take some additional effort to ensure that the children have privacy and feel comfortable. However, guardians ad litem or child representatives can effectively investigate and make recommendations to the court based upon virtual meetings with children, particularly after a year of learning methods and tricks to improve their virtual interviewing skills.
Custody Evaluations Conducted Remotely
During the course of custody disputes, custody evaluators, most commonly psychiatrists, are often appointed to conduct custody evaluations. Custody evaluators must interview the parties, the children, and any collateral witnesses relevant to the contested issues, such as family members, teachers, doctors, friends, coaches, and the like.
Generally, the evaluator meets with the parents individually, and then again to see how each parent interacts with the children. During the pandemic, these meetings have often occurred virtually. The portion of the meeting wherein the evaluator meets individually with the children needs to occur privately, and therefore poses the same concerns as meetings between the guardian ad litem or child representative and their clients. Conducting meetings remotely does, to a certain degree, remove the evaluator’s ability to assess factors that are relevant to their recommendations, such as a party’s credibility, how a parent interacts with a child, and a child’s behavior, which may be significantly impacted by having to sit in front of a computer screen for a long period of time. What is critical is that there be consistency: Either all interviews/sessions are virtual, or they are all in person.
However, custody evaluators often interviewed collateral witnesses via telephone prior to the pandemic. Therefore, that aspect of custody evaluations has not been significantly impacted due to the pandemic.
Teletherapy During the Pandemic
The way in which therapy is conducted has also significantly changed in the last year. Rather than meeting with patients in person, many therapists have transitioned to entirely virtual practices. In the context of custody proceedings, judges often order children to begin attending therapy, or for parents and children to attend family therapy. A strong therapeutic relationship between a therapist and a child is essential for therapy to be effective and beneficial.
If a therapist already had a therapeutic relationship established with a child prior to the COVID-19 pandemic, it may have been easier for them to continue their therapy sessions virtually during the past year. However, if a therapist began working with a child over a video chat, it may have been more difficult to develop a rapport and trust and ease the child into opening up emotionally.
Supervised and Virtual Visitation
One of the most difficult aspects of the pandemic has been supervised visitation, or parenting time. In custody cases where a parent’s visitation must be supervised by an independent third party, safety concerns due to the pandemic have commonly prevented or limited the supervised visitation from occurring in person. It is unfortunate that a parent may not see a child in person for a significant time; however, COVID-19 has posed an unprecedented global health and safety challenge that we have not faced in our generation.
Many third parties who act as visitation supervisors have not been comfortable conducting visitation in person due to health concerns. As an alternative to in-person supervised visitation, visitation over videoconferencing has emerged. This does allow the parent to see their child; however, it may seem sterile and impersonal, and the parent may face the same difficulties retaining the child’s focus over video. Likewise, the same concern addressed previously in this article arises during virtual supervised visitation: Does the child have privacy, or is the other parent listening?
The highly communicable nature of COVID-19 has also influenced in-person supervised visitation to the extent it has been permitted. As people from different households or “bubbles” are instructed to remain socially distanced, with masks on, parents and children may not be able to sit together or even hug during visits. This may be emotionally difficult for both parents and children, especially for younger children who do not understand why they cannot hug or sit with their parent.
In limited circumstances, professionally supervised parenting time has been recommended with social distancing requirements in place. Of course, this depends upon the comfort of the supervisor. As the prevalence of the vaccination increases, the possibilities for supervised visitation increase. There is no question that “parenting” via Zoom is virtually impossible.
Remote Judicial Interviews of Children and Other Proceedings
In rare cases, circumstances might necessitate a judge interviewing a child “in camera,” or in chambers, during custody proceedings. Court rules regarding “in camera” interviews of children by the judge vary by jurisdiction. For example, in Illinois, the interview must be recorded by a court reporter, the transcript must be filed under seal and only released upon order of court, and counsel must be present during the interview unless agreed upon by the parties.
Confidentiality and privilege regarding all aspects of child-related cases during remote proceedings are extremely important. While many remote proceedings are now live-streamed or recorded and uploaded to YouTube in many counties due to public access rules, interviews of a child should not be publicly accessible. Any remote judicial interviews of a child should be done in a “breakout room” or other nonlive-streamed and nonrecorded Zoom (or similar) link.
Additionally, depending on the rules for an interview of the child by a judge in your jurisdiction, the guardian ad litem or child representative should ask the judge to confirm that no one else is present in the room with the child. One concern that remote interviews present is that a parent may remain in the room, causing the child to feel as though they cannot be honest or candid with the judge. A possible resolution to address that concern is for the child to conduct the interview from the office of the guardian ad litem or child representative, if everyone is comfortable doing so.
A meeting with a judge is difficult at best on a child. A portion of any interview is focused on making the child comfortable, which is complicated over Zoom. A part of the interview is to access body language, etc., which is complicated with Zoom. Frankly, since the pandemic, the authors of this article are unaware of any in-camera interviews and have not been involved in any in-camera interviews of a child during the past year.
Judicial interviews of children are only one aspect of custody proceedings. Matters relating to custody often require frequent court appearances, and involve multiple attorneys, including counsel for the parties and guardian ad litem or child representative. Remote proceedings permit the court to schedule statuses, pretrial conferences, hearings, or trials on a more expedited basis, as all counsels involved can more easily coordinate and appear via video. Certain states have always conducted pretrial matters, in both financial and custody matters, via telephone or video, prior to the pandemic, which has proven to be extremely effective in streamlining the contested issues. While there have certainly been some bumps in the road establishing protocols for remote proceedings during the pandemic, there are significant benefits to conducting custody proceedings remotely. Therefore, continuing use of videoconferencing for legal proceedings, particularly remote custody proceedings, after the pandemic has ended may be worth consideration by the legal community at large.
Our new post-COVID world has taught us that our known methods of interview and investigation have options and alternatives. Whereas we are fortunate that “custody” determinations have not been “stayed,” we must recognize that our tools for investigations have been challenged and be particularly mindful of same, given the critical work being done.