Will my Houston, Texas family law case be infected by COVID-19?
Jacob D. Cohen
Family Law Litigation
You have decided to file for divorce from your spouse. It was not an easy decision to make and you went back and forth for months before you realized that divorce is the only way forward. As you are in the process of selecting an attorney to represent you, the COVID-19 pandemic hits the U.S. Harris County, Texas and the rest of the state go on lock down. Now what?
The COVID-19 pandemic is unprecedented. Entire economies have been crippled, schools cancelled, people forced to work from home, life as we know it at a standstill. If you were contemplating filing for divorce in Houston, Texas in mid-March 2020, how will this pandemic affect your ability to move forward? If you had already filed your divorce suit, will your case be able to move forward? Even if it does, will the Courthouse, a large building where hundreds of people gather every day, even be open for a judge to hear your case? Though the COVID-19 pandemic will likely cause some delay in all divorce and child custody cases, litigants in Houston, Harris County, Texas will not only still be able to file new family lawsuits, but those with cases already pending will be able to move forward.
March 12, 2020 – Family Courts Joint Statement Regarding Health and Safety Concerns
In Harris County, Texas, there are 11 Texas state district courts that hear nothing but family law cases (divorces, suits affecting the parent-child relationship, child support matters, adoptions, etc.). On March 12, 2020, the Harris County Family Courts issued a “Joint Statement Regarding Health and Safety Concerns” to outline the manner in which the Harris County Family Courts would address concerns about and respond to the then potential outbreak of COVID-19. The main points from this joint statement were as follows:
• Designation of cases as “Essential Court Matters” and “Non-Essential Court Matters”
o The Harris County Family Courts designated all cases into “Essential Court Matters” and Non-Essential Court Matters” and said that all in-person hearings and trials that were already set in Non-Essential Court Matters on dates after March 12, 2020 would be continued until further notice (reset to a later date);
o Cases designated as Essential Court Matters would proceed as usual;
o Cases designated as Essential Court Matters include:
- Suits in which a party is seeking relief as a victim of family violence (Texas Family Code Title 4 (protective orders));
- Suits brought by a parent to compel the return of his/her child when that parent is entitled to possession of the child under that parent’s custody order (Texas Family Code Title 5, Chapter 157, Subchapter H);
- Suits filed by the Texas Department of Family and Protective Services (Child protective services cases)
- Suits brought under Texas Family Code, Title 2, Chapter 33 (dealing with a minor obtaining an abortion without parental consent); and
- Suits for the enforcement of child support obligations and for the enforcement of possession of and access to a child (if the defendant/respondent is in custody).
In reading this joint statement, it is clear that Houston, Harris County area litigants will still have fairly quick recourse in emergency situations, general suits for divorce and general suits affecting the parent-child relationship are absent from the list of cases deemed Essential Court Matters (and thus destined for delay). Further absent from the joint statement is specificity with regard to how cases deemed Non-Essential Court Matters are to be handled. The joint statement does, however, foreshadow when it says “technology used to conduct hearings should be made widely available, to the extent possible” and “the family courts are developing a plan or electronic appearances to be rolled out as soon as possible.”
March 31, 2020 – Harris County Family District Courts’ Policies and Procedures During COVID-19
It took a little over two weeks from the date of the Joint Statement Regarding Health and Safety Concerns but on March 31, 2020, the Harris County Family Courts issued “Policies and Procedures during COVID-19” which superseded the March 12 Joint Statement. The COVID-19 Policies and Procedures went into effect on April 1, 2020 and are set to expire on May 8, 2020 though were recently extended to expire June 1, 2020. Where the March 12, 2020 joint statement was generally silent as to the handling of “Non-Essential Court Matters,” the March 31, 2020 Harris County Family District Courts’ Policies and Procedures During COVID-19, outlined below, set forth specifically how traffic at the courthouse is being reduced (to help slow the spread of COVID-19) and what accommodations have been made to keep cases deemed Non-Essential moving forward. For instance:
• To reduce traffic at the Harris County Civil Courthouse, where all of the Harris County Family District Courts are located:
o all in person court business is confined to just three courtrooms; and
o no jury trials will be called for Non-Essential Court Matters (all jury service is currently suspended through June 30, 2020);
• When family law cases in Texas are resolved through settlement, a vast majority of them require a party to appear in court to testify to the terms of the settlement and obtain the court’s approval, known as a prove up. While the COVID-19 policies and procedures are in place, most prove ups can now be accomplished via a sworn affidavit;
• In case of a true emergency involving an imminent threat to the health or safety of a child or where there is an imminent risk to a party’s property, an otherwise Non-Essential Matter may be deemed essential by the Court and given priority for a hearing (though such a situation must include a written request to the Court to have the matter deemed essential which must be accompanied by a sworn affidavit or unsworn declaration);
• Each court is now equipped to conduct virtual hearings via Zoom and/or Audio-Conferencing Bridge (though whether the Court will hold a hearing via these means is at the discretion of the judge) meaning you could find yourself being cross-examined from the comfort of your own home;
• The Family Courts have expanded the types of issues/matters upon which the Courts will rule by written submission (where the judge rules on the issue based on the written pleadings on file as opposed to conducting an oral hearing). The most common issues/matters being resolved by submission are:
o Motions for adoption evaluations (required in a suit to adopt a child);
o Motions for alternate or substituted service (required to serve a defendant in the lawsuit when personal service is not possible or unrealistic);
o Motions for the appointment of an attorney ad litem, amicus attorney, or custody evaluation;
o Motions to compel discovery (when a party has failed to properly reply to written discovery requests);
o Motions for court to confer with a child (in a custody case that will not be tried to a jury, on request of a party, the Court must interview a child 12 years or older to find out the child’s preferences as to who should have primary custody);
o Motions for Continuance (when a party is requested that a trial setting be reset);
o Motions for drug testing (typically done in custody cases when the evidence exposes concern about illicit drug use); and
o Motions for genetic testing (done in custody cases/paternity cases when paternity of an alleged father is at issue).
So yes, your case will be able to move forward despite likely being infected by the COVID-19 pandemic. You will also still be able to file new family law cases but you should certainly expect the process to take longer. If you wish to consult with a family law attorney in the Houston, Texas area for more insight into family law cases generally and how to proceed given the current pandemic circumstances, The Rainwater Firm attorneys are standing by to answer your questions.
Jacob D. Cohen is an attorney licensed in the state of Texas and an associate at The Rainwater Firm with principal office located in Houston, Harris County, Texas. Any opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational and advertisement purposes only and does not constitute legal advice.