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March 19, 2020

Via E-mail from Michael Aurit

 
To the Honorable Presiding Family Court Judge of Maricopa County,
 
Thank you for your attentive and encouraging leadership during this time. We sincerely appreciate your willingness to consider proposals that will help families and professionals remain safe.

In response to the Maricopa County Superior Court Administrative Order No. 2020-036,  I propose for your consideration that this Court issue an administrative order that (1) suspends notary seal requirements for family law filings; (2) allows parties to sign electronically via a secure and verified platform, such as DocuSign; and (3) accept all filings via electronic submissions, through means such as email and/or Dropbox for the reasons stated below, including but not limited to preventing the spread of COVID-19. 
 

Background

 
On March 11, 2020, Governor Doug Ducey declared a statewide emergency pursuant to A.R.S. § 26-303, due to the emergence of COVID-19 in Arizona. On March 16, 2020, the Arizona Supreme Court issued Administrative Order No. 2020-47 in response to the Governor’s declaration of statewide emergency and noted that “[a]though Arizona’s courts remain open for business, cooperation by the Judicial Branch is essential to reducing the risk associated with the public health emergency.” Administrative Order 2020-47 further authorized the presiding superior court judge of each county “to adopt or suspend any local rules and orders needed to address the current health emergency in cooperation with public health officials and to take any reasonable action that the circumstances require to enable necessary operations of the superior, justice and municipal courts in each county.”
 
The Centers for Disease Control and Prevention has issued guidelines for businesses and the general public to help prevent the spread of the COVID-19, including practicing social distancing and avoiding close contact with other persons. Such guidelines are nearly impossible to follow in the family law court process. The family law court requires initial pleadings to be filed in-person, and Rule 14 and Rule 23 of the Arizona Rules of Family Law Procedure (“ARFLP”) require a notary seal (which requires travel and close contacts with a notary).
 

Suspension of Notary Seal

 
Rule 14(a) of the ARFLP defines written verification as “a sworn statement before a notary public or other officer who is authorized to administer an oath.” This requirement is applicable to the following filings:
 
(1) acceptance of service under Rule 40(f)(1);
(2) an affidavit submitted in support of an application for a default decree;
(3) a consent decree under Rule 45; or
(4) a stipulation or agreement that substantially changes the terms of a legal decision-making or parenting time order, unless the stipulation is entered in open court or through conciliation services.
 
Additionally, Rule 23 of the ARFLP requires the initiating party to submit a verified petition to the Court (e.g., notary seal). Requiring a notary seal forces the parties to travel and come into close contact with a notary and during such contact the handling and exchange of documents. During this uncertain time, many individuals are scared and wary of traveling and visiting businesses, wanting to avoid such close contacts for the safety of themselves and others.

In the world of COVID-19, the notary seal requirement creates a barrier for individuals to access the Court and for some, the Court may be entirely inaccessible at this time. 
 
It is unlikely that the drafters of the ARFLP contemplated a pandemic such as COVID-19, however, they did contemplate and acknowledge that under certain circumstances, the requirements of Rule 14 may be modified and/or suspended. Rule 14(a) explicitly states, “nothing in this rule precludes the Arizona Supreme Court from modifying the requirements of this rule by administrative order.” This express language acknowledges that there may be a circumstance in which Rule 14 needs to be modified and/or suspended. The COVID-19 pandemic is precisely that circumstance.
 
Further, there is no alternative to in-person notary services available in the State of Arizona. Recently, the Arizona Legislature enacted legislation that approved remote online notary services. However, that legislation does not take effect until July 1, 2020. See A.R.S. § § 41-371 – 41-380, et seq. Further, the Secretary of State has not adopted rules to facilitate remote online notarizations. This means that at this time, there is no alternative to in-person notary services.
 
Additionally, it should be noted that Arizona does not require a notary seal for most filings in civil court and most civil actions can be initiated entirely online via TurboCourt.
 
Also noteworthy, in California, there is no notary seal requirement for family law filings, with the exception of a filing for default when the parties have reached an agreement in dissolution proceedings.
 
Based on the foregoing, the Court should issue an administrative order that suspends notary seal requirements.
 

Verified Electronic Signature

 
In addition to suspending the notary seal requirement, the Court should issue an administrative order that allows parties to sign legal pleadings electronically via a secure and verified platform, such as DocuSign. Arizona law allows parties to sign electronically in many areas of the law including, but not limited to, contract, commercial transactions, and real estate. Further, as previously mentioned, civil actions may be initiated entirely online with the initiating party providing an electronic signature without any verification. 

Secure and verified electronic platforms, such as DocuSign, can serve to authenticate the parties signature and would provide the Court with an authentication record. Further, allowing the parties to utilize secure and verified electronic platforms will prevent unnecessary travel and potential exposure. For example, many individuals do not have print and/or scan capability at home, further causing parties to have to travel to businesses that offer these services (assuming they are open after the many instances of “stay in place” or “stay at home” that have been issued across the United States, such as in California, New York, and Illinois). Utilization of a secure and verified platform will not only authenticate documents and provide access to the Court, but protect the community from the spread of COVID-19.
 

Electronic Submissions

 
Lastly, the Court should accept all filings via electronic submission. The idea of electronic filing is not novel and is well established in the legal community. In family court, most pleadings can be filed electronically but initial filings are excluded. Also, as previously mentioned, civil court allows litigants to initiate lawsuits entirely online via TurboCourt. Understanding the undertaking required to establish an electronic platform for generating new matters, the Court should accept all filings via electronic submissions through means such as email and/or Dropbox.  This further eliminates barriers currently preventing pro per litigants from filing, as they do not have access to e-filing options through the family court currently.

Conclusion

 

Based on the foregoing reasons, to ensure the safety and welfare of the community and accessibility to the Court, the Court should issue an administrative order that (1) suspends notary seal requirements for family law filings; (2) allows parties to sign electronically via a secure and verified platform, such as DocuSign; and (3) accept all filings via electronic submissions, through means such as email and/or Dropbox.

Respectfully, 

Michael Aurit [AZ Bar: 032033]
Director of Professional Mediation
Professional Mediator
The Aurit Center for Divorce Mediation

Sarah Lemley [AZ Bar: 034889]
Professional Mediator
The Aurit Center for Divorce Mediation

Kristyn Carmichael [AZ Bar: 033763]
Assistant Director of Mediation Services
Professional Mediator
The Aurit Center for Divorce Mediation