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In today’s transient society, it’s not unusual for separating spouses to reside in different states. This makes custody battles and divorce proceedings more expensive and logistically challenging, since parties must figure in the cost of travel in terms of time and money. But last month, in In the Matter of the Marriage of Angela M. “Shelly” Powell and Kelly G. Powell, one court in Brazos County, Texas, went high-tech, using videoconferencing to assist in a complicated custody dispute between a mother in Brazos County and a father in Charlotte County, Va. For the past decade, Texas has been on the cutting edge when it comes to videoconferencing court proceedings, says David Maland, clerk of court for the Eastern District of Texas. He believes this district was the first federal court in the country to videoconference prisoners’ civil rights proceedings. The technique, however, has been used most often for criminal proceedings — civil rights suits, guilty pleas, initial appearances, arraignments, sentencing and the like. How might videoconferencing best be used in the family law context? “When parties are at a distance, there is no substitute for being there,” says Maland, “but [videoconferencing] is a very close second. It’s much better than telephones and can be a great timesaver.” Plus, there’s an unintentional benefit to the broadcasts — sometimes the parties involved in the matter tend to concentrate more on the proceeding when it is televised than when it is live, says Maland. “People have a tendency to direct their attention to the screen and not be distracted by external matters.” Yet Maland wonders whether emotion and nuance would be blunted by a televised rather than a face-to-face event. Pursuant to Texas Family Code Chapter 152 (the Uniform Child Custody Jurisdiction and Enforcement Act), if a court learns that there is a simultaneous proceeding in another state involving the same child, the court is supposed to stop what it is doing and confer with the other court about jurisdictional issues. So that is exactly what Juvenile and Domestic Relations Judge Franklin Slayton of the 10th Judicial District in Virginia — where Kelly Powell filed a custody and visitation petition in December — and Brazos County Court-at-Law Judge Randy Michel — where Shelly Powell filed for divorce in January — did. On Jan. 25, Slayton heard evidence in Virginia on the issue of jurisdiction. Kelly Powell was represented by Robert H. Morrison of Watson, Nelson, Morrison & Miller, and Shelly Powell was represented by Carol B. Gravitt of Gravitt & Gravitt, both of Halifax, Va. At the hearing, Slayton informed the parties that Michel had alerted him to the Texas action. Slayton proceeded to establish a record of what took place in Virginia and exchanged the information with Michel by sending him a transcript. The following week, on Jan. 31, Michel heard evidence on the issue of jurisdiction in his court in Texas. This time, Kelly Powell was represented by Channa Borman of Borman & Imbrie, and Shelly Powell was represented by Julie May Young of West, Webb, Allbritton, Gentry & Rife, both of College Station, Texas. “I have to admit in all candor, this is the first time I’ve ever been hit with something precisely like this, so I’m treading very cautiously,” said Michel at the Jan. 31 hearing, according to a transcript. Since neither Slayton nor he knew which judge would make the ultimate decision on jurisdiction, they decided to hold a joint hearing so both courts could hear the legal arguments simultaneously once the Jan. 25 and Jan. 31 evidentiary hearings were completed. Normally, the two judges cooperate, says Michel. Typically that has been done by speakerphone, sometimes by a series of faxes or by sharing the different attorneys’ briefs. But the benefits of using videoconferencing were overwhelming, so when Slayton suggested it, Michel checked to see if it would be feasible. It was. “It was very useful to be able to see the Texas contingent — to be able to see Judge Michel and the Texas attorneys — to whom we’d only spoken. You get a lot from seeing people’s demeanor,” says attorney Nora J. Miller of Watson, Nelson, Morrison & Miller, who represented Kelly Powell at the videoconference. As an attorney making an argument, however, Miller found the process somewhat confining in that the attorneys sat in a row at a table with the judge in the middle so all were in sight on the screen. “That was a little strange. We saw everybody at all times … . We were told to sit very still, which is hard for those of us who are expressive with our gestures.” “[W]e were all neophytes in this,” says Miller. “When you are doing it, you don’t realize it is so groundbreaking as it seems to have been in hindsight,” says Miller. “No one has really come up with any other instances under the UCCJEA in Virginia that has done this. Hopefully those instances where the people have to resort to these UCCJEA provisions will be rare, but the technology was fabulous.” “I thought the technology worked very well, although there was a little bit of a choppiness,” says Gravitt, who represented Shelly in Virginia. “We were looking at ourselves on one screen and the Texas people on the other. The Texas people were less clear and a little choppy when they moved because of some delay. However, I think it was very helpful to see the players. People developed a style of letting the other court know when they were finished speaking.” Not only was it easier to keep track of each speaker, but also the body language and physical cues of the lawyers and parties spoke volumes. “It was nice to be able to see who was arguing and be able to watch them, their mannerisms,” says Michel. “There are a lot of nonverbal behaviors that can be persuasive, so I found it very helpful to be able to both see and hear. It’s also useful to be able to see how you come across to the other side.” “Because it was a first for all of the lawyers and the judges, it got off to a slow start,” says Slayton. But the parties soon adjusted. “All of the responses I received from the lawyers in Virginia who participated were very positive.” For Slayton, one of the biggest benefits of the process is enabling the parties to avoid the cost of traveling to a different state to attend a hearing. A drawback would be determining how to “control” the proceeding. “In this case, Judge Michel was very cooperative and wanted the thing to succeed as well as I did,” says Slayton, but had he been otherwise, it would have been troubling. FUTURE BROADCASTS One of the features of the videoconference that Borman, Kelly Powell’s Texas lawyer, liked most was that the guardian ad litem appeared last, after all the other attorneys had spoken. “It was as if the ad litem was an ad litem for both states,” says Borman, “which was appropriate because the ad litem is the lawyer who doesn’t have an interest other than what is best for the kid.” Robert Swearingen of West, Webb, Allbritton, Gentry & Rife, who represented Shelly in the videoconference hearing, likes the technology overall, but notes one limitation. “It was like a dubbed movie: There was talk and then you’d hear the words. It was difficult to look at the screen and watch people’s mouths and process the information, but you got used to that. I almost had to not look at them when they were actually speaking, listen to what they were saying coming over the speaker and look back at them when I wanted to talk,” he says. The use of the technology was offered free of charge by Texas A&M University on one end and a public high school in Virginia on the other, both seeking to let the public know the technology is available. Monica Kennis, training specialist at TTVN, Texas A&M’s videoconferencing and data network, notes that the technology has come a long way in the past five years. “Right now, we’re migrating to using the Internet for videoconferencing rather than digital phone lines. This would bring the price down,” she says, “since everyone has an Internet connection.” The next step, says Slayton, would be to use videoconferencing for evidentiary hearings in divorce cases, which would enable two courts to evaluate the same evidence at the same time, such as witnesses’ testimony or documents. Taking this one step further, a special camera could be trained on a document, allowing the two judges to read a document simultaneously — and privately — and then make a determination of whether the evidence should be admitted. On March 28, in keeping with the spirit of the proceeding, the judges offered “Joint Findings of Fact on Jurisdiction” based on “the petitions, the responses, the testimony taken and transcribed in Virginia, the testimony taken and transcribed in Texas, the arguments made and briefs tendered and the authorities cited to the courts by all counsel.” Also on March 28, Judge Michel signed an order decreeing that Texas and his court do not have subject matter jurisdiction over the case or over the child custody proceeding and granting Kelly Powell’s request for the court to decline jurisdiction, thereby dismissing the case. On March 29, Judge Slayton signed an order finding that Virginia has jurisdiction over the custody and visitation matter. Trial is set for June in Virginia.

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