COVID-19 and family law: What every attorney needs to know

Originally published by Aimee Key and Lindsey Obenhaus.

The COVID-19 pandemic has upended nearly every facet of daily life in the U.S. When Gov. Greg Abbott declared a state of disaster in Texas due to COVID-19, he invoked emergency powers for his administration to control the spread of the virus. In a time of sudden school closures, social distancing, travel restrictions, working from home, and more, family law judges and practitioners have worked swiftly to respond to these changes affecting family law clients and their children.

At the time of this writing, the Texas Supreme Court has enacted seven unprecedented emergency orders affecting all courts in the state of Texas, effective March 13, 2020, and lasting through May 8, 2020, unless otherwise extended by the court. Pursuant to these orders, individual courts are given the authority to modify or suspend deadlines and procedures, allow remote appearances to proceedings (such as by video or phone), consider testimony/evidence offered electronically, conduct proceedings away from its usual location in the county, and take any other reasonable action to avoid exposure to COVID-19.
Additionally, the highest court ordered that courts must not conduct “non-essential” proceedings in person contrary to local, state, or national directive, whichever is most restrictive, regarding maximum group size (currently, the statewide restriction is 10 people). Jury trials are also suspended during this time. Specific to family law cases, the Texas Supreme Court ordered that for purposes of determining a person’s right to possession of and access to a child under a court-ordered schedule, the originally published school calendar shall control in all instances. Further, parties must continue to follow their court-ordered possession schedules (unless they agree otherwise) because the court has held that possession of and access to a child shall not be affected by any shelter-in-place order issued by any governmental entity.
Specific counties and judges have been proactive about creating a unified family law response to this crisis. To see how your county is affected, the State Bar of Texas is maintaining a database of all resources and updates on Texas court closures and orders relating to the COVID-19 pandemic.(1). Additionally, the Texas Children’s Commission has compiled a helpful database of all resources relating to child protective services cases on its website.(2). Most counties have issued orders limiting in-person courtroom settings to only “essential family court matters,” including protective orders, family violence, writs and habeas corpus, CPS matters, and other matters that may be designated by the court at its discretion. Some courts are allowing “non-essential” matters to be heard by submission or a virtual hearing (teleconference or videoconference). Individual judges, too, have gone above and beyond to accommodate the public health by allowing electronic “prove ups” of orders and even suspending business dress code (per the celebrated emergency standing order the 470th Judicial District in Collin County).
The innovative way that courts are handling hearings is ultimately an experiment of forcing courts and litigants to adapt to technology almost overnight. Many courts are turning to social media accounts to advertise new policies, thereby increasing transparency and communication with the bench. Practitioners are working together to help adapt to new electronic tools such as Zoom, Skype, and other virtual platforms. It will be interesting to see what changes stick, or not, after the dust has settled from the crisis. The Texas Judicial Branch has provided guidelines for setting up and managing court hearings via Zoom.(3).
Family law firms are also adapting to the changing landscape. First, for many counties, shelter-in-place orders have eliminated in-person meetings and physical office attendance. As such, lawyers have to communicate with clients remotely and disburse critical information and guidance through alternative mediums. Lawyers have also taken to social media to share court directives and advice helpful to cases. Further, with hearings being conducted remotely, many family lawyers are having to learn how to use Zoom, Skype, and YouTube, and instruct their clients on how to appear for a hearing separate and apart from their lawyer. Additionally, with courts being closed for an indefinite period of time and restrictions being in place for some counties for gatherings, attorneys are turning to electronic means to conduct mediations and arbitrations.
In addition to transforming the way matters are handled in court, the COVID-19 pandemic poses a number of new issues for family law clients and their children, which are considered here:

How is parenting affected by a “shelter-in-place” lockdown?
While there is no statewide “shelter in place” directive at this time, different counties are promulgating individual responses to this ongoing crisis. At the time of this writing, several large counties have issued “shelter in place” orders, including Harris, Dallas, Tarrant, Denton, Hunt, and Bexar counties. The Texas Supreme Court issued guidance on March 24, 2020, in the Seventh Emergency Order Regarding the COVID-19 State of Disaster, ordering that parents must follow their possession and access schedule and that possession of and access to a child is not affected by any shelter in place order. This applies to the entire state and clarifies that unless otherwise agreed, a parent must follow the court ordered possession schedule regardless of his or her individual county’s order.

How is co-parenting affected if a parent is potentially exposed to COVID-19?
This is an area where the Texas Supreme Court has not made any specific rulings or guidance for parents. However, individual counties have guidance and direction on exposure. In Dallas County, if a conservator has reason to believe that he or she has been exposed to COVID-19, that conservator shall notify the other conservator and they shall confer to discuss actions necessary to protect the child’s safety and well-being. In making a decision whether visitation between a parent and a child shall continue, it is best to first confer with the health care provider, if possible, regarding your child and his or her potential exposure to the virus. If you decide that there is reasonable concern for your child’s safety and welfare making visitation impossible, a parent should employ electronic communication and visitation and also resume visitation as soon as possible after self-isolation has ended. Additionally, parents should be prepared to offer and expect makeup time for any missed visitation.
Co-parenting is hard, even in the best of circumstances, and during this time, it is even harder. However, parents should try to be a team in this situation, even if it is difficult. This is not the time to keep a minute accounting of how many overnights the other parent has had or to argue that the current school closures should be treated like summer vacation. The most important priority today is to ensure the safety of your family and the public. Talk through concerns and be open to new arrangements. Attorneys should encourage parents to keep detailed records, including contact with the other parent in writing (by text or email), explaining what the concerns are about the current custody plan in light of exposure and proposing a reasonable solution. While family law is often contentious, a child should have as much consistency and stability with visitation as possible.

Are there long-term guidelines for making sure parents are up to date on remote learning activities for school?
Parents are suddenly having to take on teaching responsibilities in addition to working from home. For divorced parents, it is essential that parents communicate with one another about school activities and distance learning so that they are both ensuring that the child is completing his or her activities as well as possible. Schools and teachers are also adjusting to the shift to remote learning so it is possible that a teacher may only communicate information to one parent, and that parent needs to communicate and document shared information with the other parent. Additionally, as children thrive on routine, parents need to communicate and try to establish a consistent schedule with respect to schooling so that the child is impacted as little as possible going in between homes. While it is unlikely that a court will intervene if one parent is not doing his or her part to fully complete online learning, this is another issue that can later be considered when parents return to court.

Will summer possession still take place?
At this time, extended summer possession is not affected by the COVID-19 pandemic. The Texas Supreme Court guidance orders that possession shall continue pursuant to the court order. However, if travel is still affected by COVID-19 at the time of summer possession, or a stay at place order is in effect, the ability of a parent to travel or take a vacation will obviously be limited.

Does a parent have to pay child support if he or she becomes unemployed?
If a parent loses his or her job and is unable to pay child support, the child support obligation still continues until such time as that parent has filed a petition to modify child support and a judge has ruled on the issue. The filing of a modification is the date that a court may consider for modifying support, so it is imperative that a parent file as soon as possible after losing his or her job. However, even after the petition is filed, the obligation to pay continues until a court makes a ruling, which may be some time from the initial filing. During this in between period, a parent should continue to pay child support, or at the very least, as much as possible, to avoid an enforcement order after the courts reopen and address this issue.
It is stressful for everyone—parents and children alike—to navigate through this pandemic. Resources continue to evolve to help parents and attorneys alike manage this crisis. There are resources available to help parents talk to their children about COVID-19,(4) as well as tips for effective co-parenting. The Association of Family and Conciliation Courts in collaboration with the American Academy of Matrimonial Lawyers has provided seven tips for family law practitioners during this time.(5). Despite the uncertainties of this time, family law attorneys still have the necessary tools to help their clients through their crisis and can adapt and overcome to reach resolution.

AIMEE PINGENOT KEY
is a partner at Goranson Bain Ausley in Dallas, where she practices exclusively in family law. She is certified in family law by the Texas Board of Legal Specialization and is a frequent author and speaker on family law issue across the nation.

LINDSEY OBENHAUS
is an associate attorney at Goranson Bain Ausley in Dallas. She is certified in family law by the Texas Board of Legal Specialization.

1. Coronavirus Court Closure & Court Order Updates, State Bar of Texas Family Law Section, www.sbotfam.org/recent-news/court-closures-orders.
2. COVID-19 Resources Related to CPS Cases, Texas Children’s Commission, texaschildrenscommission.gov/reports-and-resources/covid-19-resources-related-to-cps-cases.
3. Electronic Hearings With Zoom, Texas Judicial Branch, www.txcourts.gov/programs-services/electronic-hearings-with-zoom.
4. Autumn Schoolman, Hey kids, coronavirus has changed everything. Here’s what you need to know., USA Today (Mar. 20, 2020, 9:34 AM), www.usatoday.com/in-depth/graphics/2020/03/20/coronavirus-kids-has-changed-everything/2864140001.

5. Kathleen McNamara & Lisa Hall, 7 Tips for Family Law Practitioners in the Midst of the COVID-19 Pandemic, 15 Ass’n of Family and Conciliation Courts eNews 3 (Mar. 2020), files.constantcontact.com/6beb60a3701/fb0d830f-d282-4e6c-8f3c-76654770c31d.pdf.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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