Written by Christopher Lambert
Many litigants feel a sense of uncertainty and a sense of dread about their family law cases, even when pandemics are not involved. However, now that the Corona Virus Disease, referred to formally as COVID-19, has turned the world upside down, more people than ever are beginning to wonder how their cases will change. This article provides some general guidance for those going through or wanting to go through a divorce and/or a custody dispute. This article also provides specific updates for the state of Texas and the district courts in Dallas, Denton, Collin, and Tarrant counties as of March 26, 2020.
I. General Guidance
Closures and Delays
For those currently in a lawsuit, know that your case will eventually get back on track. The courts will not remain closed forever. However, many courts are treating the pandemic very seriously. The four counties discussed herein have so far treated this pandemic somewhat similarly, even working together to come up with standing orders.
So, what are some similarities so far? Many counties are closing courts to all “non-essential” cases at least through April 3, 2020. What is defined as an “essential” case is discussed more below per county, but what it basically boils down to is that cases with protective orders and cases with CPS (Child Protective Services) involvement might still be able to get in front of a judge for a hearing. That is not guaranteed, though. Even CPS cases are beginning to see changes, delays, and hearing cancellations for the safety of the parties involved.
Many litigants who had hearings set on or before April 3, 2020, saw their hearings canceled outright or rescheduled. While it might be inconvenient, the goal is to limit the risk to the community of spreading COVID-19. The courts see a high volume of people throughout the day. Many courts are “general jurisdiction” courts, meaning they can hear cases from multiple areas of law and not just family law.
If you still want to schedule a hearing on your case, you need to contact the court coordinator for your court to see what he/she recommends. If your case is not an emergency, it is unlikely you will be set for a hearing in person until at least April 4, 2020. At this rate, April 4, 2020, might be overly optimistic, so understand that more delays are possible. Even if the courts open fully by April 4, 2020, many litigants will be scrambling to get into court. So, the courts could be backed up and delayed for several months due to the volume of disputes before each judge.
Once the pandemic begins to clear up, the courts will start to reschedule hearings. You can ask to schedule a hearing in April, May, June or beyond right now, but you take the risk that the hearing will need to be rescheduled again if the pandemic does not clear up. While many family law litigants do not want to wait any longer than they have to, delays outside of the control of the litigants in each case are likely.
Some courts remain open to video conference hearings. The procedures are almost exactly the same as regular hearings, except that additional work has to be done ahead of time to make sure everyone has an electronic copy of the exhibits for the hearing. Some courts have been able to make use of video technology like Zoom to conduct hearings and keep cases flowing. However, the ability of the courts to conduct hearings as quickly as before is likely diminished due to the lack of physical presence in the courtroom and the possibility of internet interruptions. Some courts conduct video conference hearings, and some do not. You will need to check with the court coordinator regarding your specific court’s procedures during the pandemic.
While waiting for a hearing, litigants can still work on their case. Courts are encouraging video conferencing for mediations and negotiations. Litigants can settle their cases outside of court and without leaving the comfort of their homes. If a settlement is out of reach for your case, you can still prepare pleadings, prepare for the eventual hearing, work on discovery, and conduct business to the extent possible over the phone or via telecommunication.
Should You Start or File a New Case?
If you have not yet started or filed your case, you can still file to begin the case. That is a good option for those wanting to resolve the case quickly. For example, in divorce cases absent family violence, litigants have to wait 60 days to get divorced by law. The 60-day waiting period starts when the first pleading is filed. That first pleading is called the “Petition for Divorce.” The petition can be filed electronically. If you get to the end of the case with an agreed Final Decree of Divorce, some judges will agree to sign off on the Decree electronically without a trip to the courthouse. Some might require an extra affidavit, while others might not agree to sign off on an agreed Decree during the pandemic. Court coordinators and attorneys can assist you with information on the specific. The attorney you speak with can advise you on your specific court’s procedures to the extent those procedures are published by the county.
If you want to file documents online, you can set up an account to do so at http://www.efiletexas.gov/ or https://efile.txcourts.gov/ofsweb. The clerks of the courts and your local attorneys may be able to assist you with e-filing questions if you have any.
On the other hand, if you have not yet filed your case and might want a hearing on a disputed matter, such as living arrangements or custody provisions during a divorce, understand that delays are likely. You might not get in front of a judge for several months from when you file. Waiting periods might be even longer for the biggest counties like Dallas county and Tarrant county.
While each county is different, if you are aware that your county has issued emergency standing orders applicable in family law cases, you should attach those emergency standing orders to your petition if you decide to file a new lawsuit while this pandemic continues.
If you cannot find a notary for one of your legal documents, you can check into online notaries, which are likely acceptable under the Texas Government Code and the Civil Practice and Remedies Code. Online notaries would still need video conferencing technology to complete the process, though.
Spring Break Possession and Possession During the Pandemic
On March 13, 2020, the Denton District Courts clarified that spring break possession of children does not extend beyond the normal week of spring break. So, as schools have remained closed, possession of and access to the children should return to normal. That means that one parent’s spring break should not extend beyond the first week of spring break. Otherwise, one parent would basically have the entire month of March, and potentially longer, for possession of the children. The courts of other counties have agreed with this interpretation.
If the decree or order in your case does not discuss a pandemic situation, it is unlikely that this pandemic will change the normal possession schedule you already have. Regardless, be careful with children to ensure that they and the parents remain safe. Parents can continue to exchange children, as that is an exception to the “stay-inside” orders some counties like Dallas have already issued.
II. Statewide Rules and Orders
The state of Texas has in some ways followed suit behind the specific counties. Dallas County started implementing rules such as limiting restaurants to to-go orders, limiting the number of people in gatherings to less than ten, and remaining a certain distance apart from one another. Governor Abbot declared a state of disaster in all Texas counties due to COVID-19.
The Supreme Court of Texas and the Court of Criminal Appeals of Texas has issued seven emergency orders. Each order can be found online. Each order is entitled [Number] Emergency Order Regarding the COVID-19 State of Disaster. All orders can be found online at www.txcourts.gov. The more important aspects of each order are as follows:
- First Emergency Order Regarding the COVID-19 State of Disaster: States that all courts may modify or suspend deadlines and procedures, and that all individuals other than jurors can participate in hearings remotely. Individuals with coronavirus symptoms are to report to the court and not come to court. This order became effective on March 13, 2020 and expires on May 8, 2020.
- Second Emergency Order Regarding the COVID-19 State of Disaster: As mentioned above, this Order clarifies possession schedules for parents and children. It states, “possession and access shall not be affected by the school’s closure that arises from an epidemic or pandemic . . . .” So even if the schools remain closed after spring break, that does not extend spring break possession indefinitely for one parent at the expense of the other parent. This order became effective on March 13, 2020 and expires on May 8, 2020.
- Third Emergency Order Regarding the COVID-19 State of Disaster: This order clarifies certain portions of the First Emergency Order. It also adds that “Courts must not conduct non-essential proceedings in person contrary to local, state, or national directives . . . .” This order became effective on March 19, 2020 and expires on May 8, 2020.
- Fourth Emergency Order Regarding the COVID-19 State of Disaster: Discusses evictions specifically during the pandemic. This order became effective on March 19, 2020 and expires on April 19, 2020.
- Fifth Emergency Order Regarding the COVID-19 State of Disaster: Explains that deadlines related to attorney professional disciplinary and disability proceedings are tolled during the pandemic. The intent is likely to lower the work on disciplinary proceedings so that other legal matters take precedence during the pandemic. This order became effective retroactive to March 13, 2020, was issued on March 20, 2020, and expires on May 8, 2020.
- Sixth Emergency Order Regarding the COVID-19 State of Disaster: This Order is limited to voting in elections of the State Bar of Texas and the Texas Young Lawyers Association. This order became effective on March 22, 2020 and expires at the conclusion of the 2020 elections.
- Seventh Emergency Order Regarding the COVID-19 State of Disaster: This order clarifies that current court orders on possession remain in effect and do not change due to the pandemic, and that movement by the parents to exchange possession of children is not limited by orders restricting movement by government entities. This order became effective on March 24, 2020 and expires on May 8, 2020.
III. Dallas County and Its District Courts
Dallas County Judge Clay Jenkins issued an order for residents to remain indoors beginning on March 24, 2020. The order is referred to as the Dallas County Shelter in Place Order. Those who work in essential areas are exempted from this rule. Essential areas include doctors and nurses for example. The rule to remain indoors also has an exception for going outside to obtain essential items, like food and toiletries when necessary. It is not quite a true quarantine, but it is close to it.
The Dallas District Courts jumped on safety concerns earlier than most counties. The courts issued the Dallas County Family Courts Joint Statement Regarding Health and Safety Concerns and Court Settings on March 12, 2020. That statement basically closed the courts to non-essential matters. Those matters are defined as:
- Protective order and/or family violence cases;
- Habeas corpus proceedings and writs of attachment for children;
- CPS cases;
- Judicial bypass cases;
- Certain types of enforcement actions;
- Hearings with jurisdictional deadlines; and
- Other matters per the court’s discretion.
This information can be found at https://www.dallascounty.org/Assets/uploads/docs/courts/family-district/JointStatementRegardingHealthConcerns-20200320.pdf. The Statement also discusses use of teleconferencing with the courts, use of technology, submitting agreed orders, and prove-up hearings possibly being completed via submission.
On March 17, 2020, the Dallas District Courts issued the Dallas County Family District Court Emergency Standing Order. The new standing order, which should be attached to newly filed petitions in custody suits and divorces with children, states the general consensus that possession schedules do not change with school closures from the pandemic. The original court orders still apply, and the original school schedules still apply. So, closures do not add more possession for one parent at the expense of the other. This standing order can be found at www.dallascounty.org.
IV. Denton County and Its District Courts
Denton County issued a stay-at-home order to go into effect at midnight on Wednesday, March 25, 2020. The mandate only lasts for seven days, and only applies to those working in nonessential businesses. Patrick Wright reached out to officials in Denton County for clarification about whether legal services are “essential.” He was informed they were. So, it appears that attorneys living in Denton can still work in their offices in Denton, but as with most if not all counties, everyone is encouraged to remain at home.
The Denton District Courts have provided clarity in a couple of areas, including courthouse procedures and custody issues.
On March 18, 2020, the District Clerk’s Office issued a notice or press release that all walk-in services would be suspended. That means that filing new cases in person is likely not possible. That also means that obtaining copies of court documents is also suspended. If you are unsure if your situation is applicable, contact the courts before you go up in person. Otherwise, you could be making a trip to the courthouse for nothing. If you cannot file a case electronically or with the help of an attorney, you can likely still mail documents in and in some situations request documents from the courthouse via mail. General case information is available online at: http://justice1.dentoncounty.com/.
On March 24, 2020, the Denton District Courts released the “Second Amended Denton County District Courts Temporary Guidelines Regarding Health and Safety Concerns.” The guidelines state that non-essential matters are rescheduled and that you must contact your court about rescheduling hearings. In family law, “essential court matters” include, but are not limited to, “CPS (DFPS) removal hearings, temporary restraining orders/temporary injunctions, juvenile detention hearings, family violence protective orders, and certain mental health proceedings.” Jury trials are rescheduled. Uncontested matters and prove up hearings can be completed by submission, meaning that agreed orders and prove-up hearings can be completed by filing of agreed orders electronically with the court. If you are currently waiting to finalize your case, you can possibly take care of that even while the courts are limiting physical access. Some courts are allowing electronic appearances for hearings, but those hearings are sometimes limited to essential hearings. So, many litigants will not be able to get in front of the judges until the pandemic truly clears up.
On March 24, 2020, the Denton District Courts also released the “Denton County Temporary Standing Order Regarding Parent-Child Visitation and Other In-Person Visits in All Child Protection Cases.” This standing order states:
[I]n-person parent-child visitations, sibling visitation, Attorney Ad Litem (AAL) and/or Guardian Ad Litem (GAL) visits, and DFPS visits scheduled to take place March 24, 2020 through May 1, 2020 are HEREBY ORDERED SUSPENDED in an effort to contain the spread of the coronavirus (COVID-19) and to protect all parties.”
Exceptions may apply for extraordinary situations. However, this order means than most parents in Denton County going through the CPS process might not be able to see their children in person for over a month. DFPS has been authorized to set up video conferencing through Zoom, Skype, Facetime, or other video platforms starting March 24, 2020, and lasting through May 1, 2020.
V. Collin County and Its District Courts
Collin County issued orders effective March 24, 2020, that state that residents are ordered to stay home for seven days unless the orders are extended. However, unlike other counties, Collin County has mandated that all businesses are essential, which likely means that no one living in Collin County is technically prohibited from going to work in Collin County.
On March 19, 2020, the District Clerk’s Office issued a notice that all walk-in services would be suspended. That means that filing new cases in person is likely not possible. That also means that obtaining copies of court documents is also suspended. If you are unsure if your situation is applicable, contact the courts before you go up in person. Otherwise, you could be making a trip to the courthouse for nothing. If you cannot file a case electronically or with the help of an attorney, you can likely still mail documents in and in some situations request documents from the courthouse via mail. General case information is available online at www.collincountytx.gov\online\pages\case_information.aspx.
On March 19, 2020, the District Courts also issued the Collin County District Courts Second Joint Statement Regarding Health and Safety Concerns. The Statement explains that individuals should not gather in groups in the courthouse exceeding the numbers allowed by the county. It requires all non-essential cases to be rescheduled. Essential cases include, but are not limited to, criminal magistrate proceedings, CPS removal hearings, temporary restraining orders/temporary injunctions, juvenile detention hearings, family violence protective orders, certain mental health proceedings, and other hearings per the court’s discretion. Jury trials were canceled while this order is in effect. Uncontested matters will not be heard but may be resolved by submission. If resolved by submission, agreed orders should be filed electronically. Finally, if a hearing can proceed via videoconferencing, the courts are setting up Zoom for the hearings.
To prove the matter is essential, some judges require an affidavit showing family violence or child endangerment. When you request a hearing, you should include such an affidavit if you have the facts in support.
Many judges are still working during the pandemic in Collin County. Judge Miskel, for example, still has video hearings but might limit the volume per day. She also has a video office hour during the day where she speaks about her policies on video via Facebook Live. Videoconferencing is a trend for many judges and maybe further utilized even when the pandemic decreases in severity.
VI. Tarrant County and Its District Courts
Tarrant County’s Judge Whitley issued the Executive Order of County Judge B. Glen Whitley on March 24, 2020. Tarrant County has declared a state of disaster and public health emergency. As such, residents of Tarrant County are required to stay home, but they can leave for essential business and travel, government service, essential critical infrastructure, and to perform “minimum basic operations.” Nonessential businesses are required to close but can still operate minimum basic operations as defined in the order. “Essential activities” include essential health and safety activities, obtaining necessary services or supplies, engaging outdoor activities while adhering to social distancing, working at an essential business, and/or caring for family and pets. “Essential businesses” are listed. Some examples include essential health care services, essential government functions, news media, financial institutions, and childcare services. However, each essential business has restrictions, such as weddings must be limited to ten people or less, restaurants being limited to take out, and public gatherings limited in general. The order is enforceable by any certified peace officer.
On March 24, 2020, Patrick Wright reached out to officials in Tarrant County for their interpretation of the orders in Tarrant County. On March 25, 2020, he received a response that City Stay at Home Declaration limits travels to essential business. Law Firms are considered to be essential but staying at home is still recommended. If in the office, attorneys should implement safety precautions, such as limiting the number of people to less than ten and remaining six feet away from one another at all times.
The District Courts issued two different documents in response to COVID-19. Both were issued on March 13, 2020.
- Temporary Standing Order issued by the 360th Judicial District Court: The standing order takes effect March 16, 2020 and lasts until April 1, 2020. Juries are canceled, litigants are not required to appear in person to the courthouse, continuances are granted by agreement or by submission without personal appearance, and, like other counties, essential cases like protective orders, temporary restraining orders, and emergencies. The court encourages the use of technology like CourtCall. The Standing Order also provides alternative procedures for hearings, such as submitting stipulated faces, providing arguments for hearings over the phone, videoconferencing, and proffered testimony.
- The Policies of the 231st, 233rd, 322nd, 324th, and 325th District Courts as to Cancellation of Dockets Due to the Coronavirus (COVID-19) also take effect on March 16, 2020, and lasts until April 1, 2020. Those courts agree that only certain cases like extraordinary relief TROs, protective orders, CPS hearings, writs of habeas corpus and/or attachment, adoptions, and child support bond releases will be heard. All others are canceled. These courts also clarify that school cancellations do not extend spring break possession for either parent. Possession goes back to normal after the one week of spring break is done.
Here at The Wright Firm, the attorneys and staff continue to work hard on each client’s case. The attorneys and paralegals are still able to draft documents and emails electronically, take calls remotely, and operate without interruption. The only real change is that hearings might be delayed by the courts.
If you have any questions about the effects of the pandemic on your case, or about your case in general, you are more than welcome to contact The Wright Firm, LLP, at (972) 353-4600. The staff is available to take your call and set up a consultation with the right attorney for you. The consultation will likely be over the phone for your safety and the safety of the community.