Fall 2016: Updates and Initiatives from the Probate and Family Court

Twice per year Chief Justice Ordoñez holds a meeting with the representatives from Bar Associations from across the Commonwealth. On Thursday, November 3, 2016 the Bar Liaisons convened with Chief Justice Ordoñez and Court Administrator Linda Medonis to receive an update on the Probate and Family Court. Below is a summary of what was addressed and discussed during the meeting.

Public Access Rule Update: On July 22, 2016, the Supreme Judicial Court repealed the 2009 Interim Guidelines for the Protection of Personal Identifying Data in Publicly Accessible Court Documents and enacted a new Rule 1:24 entitled Protection of Personal Identifying Data in Publicly Accessible Court Documents. The amended Rule 1:24 took effect on November 1, 2016. Pursuant to Rule 5 (a)(iii) of Rule 1:24, each Department of the Trial Court, subject to the approval of the Chief Justice of the Trial Court after notification to the Supreme Judicial Court, may exempt certain types of categories of information in civil cases from remote access. Pursuant to this provision, Chief Justice Ordoñez prepared Probate and Family Court Department Standing Order 3-16, which was approved by Chief Justice Carey. Standing Order 3-16, which can be accessed at http://www.mass.gov/courts/case-legal-res/rules-of-court/probate/pfc-orders/3-16.html specifies what Probate and Family Court case information will be remotely accessible to the public.

Notwithstanding the enactment of Standing Order 3-16, it was made clear that the court system, as a whole, is heading towards more disclosure of information remotely. The Probate and Family Court will be working in the coming months to balance the demands of remote access with the nature of the information and cases handled by the Probate and Family Court. To this end, Chief Justice Ordoñez will be convening a Working Group to be led by Ilene Mitchell of the Administrative Office.

Notwithstanding the enactment of Standing Order 3-16, attorneys continue to have online access to their own cases through the Attorney Portal. However there was a lengthy discussion regarding the limitations of this access. For example, many attorneys who have entered an appearance in a case are not listed as one of the attorneys of records and therefore do not have access to the case through the Attorney Portal. Chief Justice Ordoñez is aware of this situation and efforts are being made to address it. Suggestions offered included having a second or third attorney working on a case (or listed on a pleading) to file a separate Notice of Appearance. Registry Staff have been trained to enter counsel of record from Notices of Appearance, but may not always pick up a second name listed on a motion or complaint. Additionally, it was suggested that firms and/or attorneys develop a list, by county, of cases in which they are the attorney of record but have no access to the case through the Attorney Portal. It was suggested that lists be provided to the Registry so that corrections and updates can be made. If there are problems or issues with these efforts, please contact the BBA’s Bar Liaison, Jennifer Durand at jennifer.durand@schmidt-federico.com.

Litigation Options: In the spring of 2016, Chief Justice Ordoñez issued three (3) proposed Standings Orders as follows: Family Centered Case Resolution and Case Management In the Probate and Family Court Department; Limited Discovery; and, Settlement Conferences in Family Law Cases in the Probate and Family Court. The draft Standing Orders were the result of of Chief Justice Gants stated priority that all Trial Court Departments consider alternatives to litigation. Feedback was solicited and was provided by the Boston Bar Association. As a result of the feedback that Chief Justice Ordoñez received, including feedback provided at a roundtable meeting that she held with members of the Massachusetts Bar Association, changes will be made to the draft Standing Orders. Chief Justice Ordoñez anticipates that the revised Standing Orders will be issued in January of 2017 with an effective date in March 2017.

At the meeting, Chief Justice Ordoñez addressed some specific concerns that had been raised, some of which had been raised by members of the Family Law Section, with the draft Standing Orders.

With regard to the Alternative Dispute Resolution (ADR) provisions set forth in the draft Family Centered Case Resolution and Case Management In the Probate and Family Court Department, Chief Justice Ordoñez stated that the ADR screening procedure set forth in the draft Standing Order would consist of a twenty (20) to thirty (30) minute meeting in those counties in which ADR is offered onsite. The screening process would outline the various ADR models as well as the costs to be expected from utilizing ADR. She made clear that there would be no cost for the screening. Additionally, Chief Justice Ordoñez stated that parties had to opt-in to the provisions of this Standing Order by agreement.

With regard to the draft Limited Discovery Standing Order, Chief Justice Ordoñez made clear that parties had to opt-in to the Standing Order and that doing so was voluntary.

Finally, with regard to the draft Settlement Conferences in Family Law Cases in the Probate and Family Court Standing Order, Chief Justice Ordoñez stated that this draft Standing Order arose from the feedback she received on judicial evaluations that attorneys are always looking for guidance from a judge in order to settle their cases. The distinction between this framework and guidance offered at a Pretrial Conference is that the goal is to have people enter the process in a different mindset that being one of settlement versus battle. If the case does not settle, then it goes off track and the litigation model resumes. Additionally, the Settlement Conference would take the place of parties and counsel to have a four-way meeting later in the process.

Staggered Scheduling: There was discussion of how staggered scheduling was progressing in Middlesex County and elsewhere. The general consensus was that staggered scheduling was going well in Middlesex and Norfolk and that judges were generally receptive to requests to schedule 2:00 p.m. hearings upon a lawyer’s request. Staggered scheduling is not yet available in Bristol or Plymouth Counties and there was a general discussion regarding what efforts could be made to accelerate the check in process in each county so that judges could more timely start his or her session rather than waiting for the list of cases to be called/checked in.

There was also a discussion regarding lawyer use of cell phones and/or tablets in the courtroom. The general consensus was that the use of cell phones and tablets by lawyers in the courtroom is indispensable as it relates to scheduling, running guidelines and staying in touch with your office while waiting for a case to be called, but that judges and court officers generally did not approve such use. It was suggested that inquiry be made at Bench/Bar meetings to determine how the judges in that county view cell phone/table use in the courtroom by lawyers and whether efforts could be made to address concerns on both sides regarding such usage.

Publication Alternatives: Chief Justice Ordoñez brought to our attention that Alaska is now allowing service by publication on the Court’s website. She expressed that it would take some time to know how to implement such a procedure in Massachusetts as well as discussion with the legislature, but that maybe such a practice could be utilized in fee waiver cases. A Bar Liaison shared that she has had success with judges allowing motions for alternate service in which the alternate service proposed (and allowed) was service by email or Facebook.

Budget impact: The Trial Court did not receive maintenance budget funding for the 2016/2017 fiscal year. While the Trial Court does not anticipate any layoffs as a result of the budget shortfall, it is expected that the Trial Court will be more selective in filling vacancies and that there will not be any new initiatives or funding for new programs this coming year. Additionally, it is unlikely that there will be funding for additional Court Service Centers or increased staffing.

Forms: The Probate and Family Court has adopted two new forms, an Answer to Complaint for Divorce and a Counterclaim for Divorce. The forms can be accessed on the Probate and Family Court website at this link: http://www.mass.gov/courts/forms/pfc/pfc-forms-gen.html#4. Instructions are also available for each form.

Additional forms are expected soon, including forms for the following:

  1. Answers on: Complaint for Modification, Complaint to Establish Paternity, Complaint for Custody-Support-Parenting Time, Complaint for Separate Support, Complaint for Support (32F), Complaint for Annulment and Complaint for Modification of Alimony
  2. Counterclaim on: Modification, Establishment of Paternity, Custody-Support-Parenting Time, Separate Support, Support (32F), Annulment and Modification of Alimony

Impact of Judicial Vacancies: There are currently six (6) vacancies in the Probate and Family Court with a seventh expected on December 1, 2016 when Judge Rainaud, who sits in Hampden County, retires. Judge Fuller (Ret.) will assume recall status as of December 1, 2016 to support the vacancy created by Judge Rainaud’s retirement. Currently Suffolk judges are providing support for vacancies in Worcester and Essex is operating with four (4) judges instead of five (5).

Interpreters: There are struggles with efficiency and dependability in securing interpreter services for hearing. It was suggested that if you have a client with resources and a need for interpreter services that lawyers may want to bring their own interpreters to the hearings. While the Court is still obligated to provide interpreters, from a practical standpoint, it was suggested that a client’s financial needs may be better served if a lawyer secures an interpreter for a hearing rather than relying on the court provided interpreter. There are two types of certified interpreters, one of which is a higher level certification than the other. As long as the interpreter is court room certified, then there is no need for the higher level certification.

Update on Family Resolutions Specialty Court (FRSC): Valerie Botter shared information about a program operating in Hampshire Probate and Family Court by Judge Fidnick called Family Resolution Specialty Court (FRSC). Based upon an Australian model, FRSC is a unique problem-solving, voluntary program that provides divorcing and separating parents the opportunity to resolve their differences in a child-centered way and with less conflict. As described on the Probate and Family Court website: “Using a team-based approach, every family in the FRSC receives assistance. There is a lawyer for the children and a mental health professional for the family. A Probation Officer also guides the family through the process. There are no trials or motion sessions. Instead, the case proceeds via a series of conferences in which all members of the team – the parents, their lawyers, and the judge – work together to resolve the parents' differences.

Through the FRSC, families are also referred to community support services such as: family and child therapy; substance abuse treatment; financial planning; employment, housing, fuel, and transportation assistance; early childhood intervention; and mediation.” The FRSC is available for both parties with and without counsel. Participation is voluntary. If the parties decide to opt out of the process a new judge is assigned to the case. FRSC has received a lot of community support and has even been able to raise some revenue through the generous donations of local institutions. Since May 2016, there have been five FRSC cases with the goal being that the program will handle twenty (20) cases per year. The feedback on the program has been excellent thus far.

Suffolk Probate: Terri Klug-Cafazzo, First Assistant Register in Essex County, is currently working in Suffolk Probate and Family Court to provide assistance to that Court. As a result of her involvement, Registry staff has been reorganized and each judge has now been assigned a team of five (5) registry staff to provide that judge with support for all phases of a case from docketing to scanning to scheduling. One member from each team rotates to the counter in order to provide assistance to attorneys and litigants with filing, scheduling and the like.

New Process for Category E and F lists: Per a memorandum from Chief Justice Ordoñez on November 3, 2016, “A new list of guardian's ad litem (Categories E and F) was put in place July 1, 2016. This list includes new members who were interviewed, submitted a writing sample, and attended the mandatory two-day training including the six (6) hour Domestic Violence training pursuant to the Act Against Domestic Violence. In addition, the list includes prior members who also submitted new applications and redacted samples of reports that they had prepared. Those reports were subject to a blind review and evaluation process. The Domestic Violence training for the renewed members is being provided by the Trial Court and their inclusion on the list is subject to their completion of this training.

There have been no changes to SJC Rule 1:07 on Fee Generating Appointments which allows judges discretion to appoint off the list provided that findings are made in accordance with the rule. As the Act Against Domestic Violence suggests that GALs should have domestic violence training, Judges will inquire as to whether the potential GAL has had formal domestic violence training. A Judge may make a contingent appointment pending the appointee completing domestic violence training which may be completed through the Administrative Office or at a local courthouse.”