When The Floodgates Open

A life time ago, back in March, when the COVID-19 crisis was still fresh and people all over New York and across the United States were adjusting to being thrusted into quarantine, trying to figure out how to work from their homes or navigate unemployment, dip their feet into home schooling and were doing their best to protect themselves and their loved ones from a highly contagious and deadly virus, we began to consider the implications that this challenging time would have on the population of people who were in the processes of divorcing or who had previously done so. Courts had essentially closed almost overnight and people were left with uncertainty and little guidance as to what the future would hold and how we would fare in the meanwhile. Enter Judge Jeffrey Sunshine.

On March 27, 2020, Judge Sunshine, the Statewide Coordinating Judge for Matrimonial Cases, published a commentary that appeared on the front page of the New York Law Journal and was circulated far and wide. Judge Sunshine shared insight into how a judge considers cases generally and how they would do so once judicial intervention would resume following the COVD-19 crisis. So, while we didn’t yet have a clear picture of how the court system was going to function and hadn’t yet experienced the various iterations, it was clear from Judge Sunshine’s commentary that the way people behaved during these unchartered times was not going to be lost into the abyss. Parents were forewarned that their actions during the time of crisis would be considered once the appropriate time came for judicial involvement.

In essence, Judge Sunshine answered the age-old question – if a tree falls in the forest and no one is around to hear, will it make a noise? In the world of matrimonial law, the answer is a resounding YES! Parents were urged to act in the best interest of their children and to act reasonably and sensibly toward one another even without direct oversight from the court in that moment. And, if sensitivity, kindness and common sense were not compelling enough reasons to get along in the best interest of the child, then parents were now on alert that their actions would be examined and consequences would follow.

I took Judge Sunshine’s words to heart. While I have shared his thoughts, and warnings with clients new and old over the past two months, I decided to impart his wisdom to my own children this past weekend. It is now 74 days since my children last physically went to school. I never imagined back in March that we would be at this point, yet we are. Perhaps I was naïve but I prefer to think I was just being optimistic. Either way, 74 days later we have nailed down zoom school, enjoyed family time together doing puzzles, riding bicycles, playing games, watching movies and concerts, baking, cooking and eating – a lot, and spent Pesach and Shabbatot davening (praying) and singing together until the wee hours of the night. Yet, we still struggle with screen time and sibling bickering among other things. At a particular moment of frustration a few days ago, I sat the children down and explained to them that for the indefinite future the complaints department would be closed. My husband and I would not act as referees or as judge, jury and executioner. We were going to leave them to work out differences amongst themselves without our intervention, absent extreme emergency involving life and limb. And, when the time would come for us to once again get involved in their disputes, their actions during the “closed” period would be considered. They were not being given a free pass during this time but rather, while we hoped that they would use this time to work on their conflict resolution skills, and allow my stress headache to heal, it was made clear that they should always consider the consequences of future parental involvement. Just as Judge Sunshine warned of the judiciary looming above, I too painted the same picture.

I write this on the eve of the New York courts opening their doors to the commencement of new matters. In the past few weeks litigants have begun filing some new motions in existing cases and tomorrow the floodgates open. Incidentally, this coincides with the celebration of the Shavuot holiday this week. A holiday where we celebrate our receiving of the Torah and acceptance of all of its teachings. I cannot help but see the deeper meaning in the connection between Judge Sunshine’s warning and our life journey following Torah and Mitzvot. While the repercussions of our actions may often not be apparent or immediately judged, we are always guided by the principle that at the end of the day, when it is our time of reckoning, we will all have to face the decisions we made and the actions we took.

Only time will tell how well parties heeded Judge Sunshine’s warning. From personal experience I can say that my own exercise worked and we all enjoyed a very pleasant and peaceful weekend!

Chag Sameach!