We're Not in Kansas Anymore

What will family law look like in the “coronaverse” of 2020 and beyond.

Not in Kansas Anymore
Paul Hewett

Paul Hewett

December 31, 2020 10:00 AM

Divorce is a highly stressful moment in a person’s life, even in the best of times. Combined with our present-day pandemic, clashing political views, and racial tensions, emotion can easily override logic when navigating the important decisions inherent in divorce proceedings. The coronavirus pandemic has forced courts and practitioners to adapt quickly, resulting in both temporary and long-term changes in the practice of family law. Family law issues are governed by the laws of each state, and each has responded to the COVID-19 pandemic with individual emergency orders that affect the unique framework of each state’s family laws.

How the Pandemic Has Impacted Possession Orders

In Texas, the Supreme Court ruled the pandemic will not abate or alter a court-ordered possession schedule. When the pandemic first hit, some parents in possession of their children refused to surrender them to the other parent for fear of possible exposure to the virus. The Texas Supreme Court resolved this problem by letting every parent know that the pandemic was no excuse to ignore a court’s possession order. However, other problems quickly emerged. What is a parent to do when the other parent has tested positive for COVID? Can a parent be forced to send their children to a household where family members are actively suffering from the virus? Following the Texas Supreme Court’s order in this scenario directly puts the child’s health in jeopardy and ultimately exposes at least two households to the disease.

Thankfully, most possession schedules in Texas orders are prefaced by a paragraph stating the parents may exercise possession of the children at any times agreed to, in advance, by the parents. This renders most court-ordered possession schedules as the default schedule. As long as there is an agreement, parents are free to make possession decisions that are in the best interest of their children. Even so, there are still new custody cases being filed daily in which one parent has tested positive and is actively experiencing COVID symptoms, yet demanding they take possession of their child, per the court’s possession order. These situations are unfortunately left to the courts to decide on a case-by-case basis.

Taking Family Law Cases Online

The pandemic has also moved family law cases from the courtroom to behind a computer. To prevent courtroom hearings from becoming virus spreader events, a video conferencing platform, such as Zoom, is often employed. To satisfy a state law requiring courtroom hearings be open to the public, courts live stream all virtual hearings on YouTube. People should know their hearing can be viewed by anyone live on YouTube. Fortunately, the platform does not allow recording or dissemination of a live-streamed hearing, so there is little chance of a hearing “going viral.”

Many Texas district court judges will offer some, or all, of their hearings via Zoom, which is effective and keeps cases moving through the dockets. In addition to resolving legal issues with no potential virus exposure, Zoom hearings have other benefits, such as allowing witnesses from out-of-town to avoid travel and screen-sharing for attorneys to offer exhibits just as they would in person. Zoom video conferencing is not limited solely to courtroom proceedings. It’s also effectively used for mediations and client consultations. However, parties should be aware there are potential pitfalls with this revolutionary use of technology. Confidentiality and cybersecurity are of primary concern. Zoom, like any video conferencing platform, is vulnerable to hackers. Privileged information, such as attorney-client communications and confidential medical and health-related information, is discussed during Zoom attorney-client conferences, mediations, and hearings. Because of this, attorneys, clients, mediators, judges, and courtroom personnel should do everything possible to ensure security measures have been taken, such as using meeting passwords, disabling guest chat, guest screen-sharing, and preventing others from joining the meeting before the host.

Divorce During the COVID-19 Pandemic

Has the pandemic led to more divorce filings? Several memes are circulating on social media about divorce lawyers thriving because of the pandemic, playing on a belief that too much togetherness will ruin a marriage. These memes are funny but in a sad way.

My analysis shows there was a temporary drop in divorce filings after the pandemic arrived. But after a couple of months, as we all adjusted to a new normal, the number of cases filed steadily rose back to previous levels, where it seems to remain. So, despite social media memes foreshadowing a divorce explosion, I have not witnessed a spike in family law cases. One point to consider is that couples who might otherwise start the divorce process are choosing to stay together because of economic uncertainty. Even if married partners no longer love each other, remaining together and sharing expenses could be their best option for a long while. Other family law attorneys across the country will have their own experiences, perhaps contrary to mine.

If a couple with children is considering divorce in the foreseeable future, it is advisable to pre-plan how to care for the children should a family member contract the virus. A contingency plan that has been carefully considered and agreed upon is paramount. The plan should specifically address who will care for the children, for how long, and what safety protocols will be followed. If possible, decisions for the care of a child are best made by fit parents, before anticipated litigation. Except in the most egregious circumstances, parents should not leave these decisions for litigation. If a contingency plan is agreed upon by the parents entering the divorce process, the plan should be made part of the final divorce decree. This helps assure each parent can be held accountable for the safety and welfare of their children.

Divorcing spouses should not let the fear of the virus or the unknown lead to irrational behavior. Don’t withdraw all your money from the bank, don’t hoard essential items, and don’t go off the grid. Instead, realize education is key. Talk to your doctor, your lawyer, with a counselor, and learn from trusted sources.

It’s worth noting that each state has its constitution, statutes, codes, and case law that considers and resolves family law issues. Some of those laws, for example, regarding child custody issues, may be uniform across the country. Others will be different. Property issues may vary from state to state. Texas, for instance, is only one of nine “community property” states in the country. Therefore, each spouse facing a family law issue is advised to seek legal counsel in their state, particularly from an attorney who specializes in family or matrimonial law.

Pivoting and Moving Ahead in the New “Coronaverse”

When our judicial system, along with the rest of the world, suddenly understood we’re not in Kansas anymore, but that we’re in the Coronaverse, time did stand still. Yet gradually courts, lawyers, and litigants alike have all found a way to continue life and the process of filing, litigating, and resolving family law issues. The legal process, security measures, and safety protocols are continuously evolving in each state. We should all concentrate on being part of the solution. In the history books, perhaps 2020 will be a year recalled as a time Americans came together, persevered, and made it our finest hour.

Paul Hewett is a partner with family law firm Orsinger, Nelson, Downing & Anderson. He is board certified in Family Law by the Texas Board of Legal Specialization, has been recognized as a Texas Super Lawyer every year since 2013, and is a member of the Family Law sections of both state and local associations.

Editor's Note: This article was published in the 2021 Best Lawyers Family Law Issue. To read the full issue, you can find our digital edition right here.


Related Articles

Inoculation Disputation

by Justin Smulison

Vaccine uptake has become one of the most contentious issues in American life. Divorced parents who disagree about it are creating a welter of new custody cases in family court—and precedent is scarce.

Divorced Parents Disagree on Child Vaccine

The 2021 Best Lawyers in Family Law

by Best Lawyers

Featuring the top lawyers practicing in Family Law and Trusts & Estates.

The 2021 Best Lawyers in Family Law

WATCH: Best Lawyers Discusses COVID-19 & Family Law

by Best Lawyers

Three legal experts join the CEO of Best Lawyers to talk about problems that arise for family law during COVID-19.

COVID-19 Panel: Family Law

The Top 7 Things to Know Before Filing for Divorce

by Best Lawyers

Consulting with a qualified divorce attorney can help you understand your rights and obligations when filing for divorce. Here are 7 things you should know.

Two golden wedding bands with a crack down the middle

Big Updates in the Big Apple

by Nina M. Roket and Thomas D. Kearns

A Post-COVID-19 update on the commercial market for landlords, building investors and retail developers in New York.

Abstract skyscrapers and buildings in multi-color

Infrastructure Restructure

by David A. Lum

Developers are embracing creativity and ESG to continue their real estate projects amidst a backdrop of inflation, supply chain demands and pipeline issues.

Two figures standing in construction site

Does the Crystal Ball Predict a Fall?

by Kathleen Bernardo

In the post-pandemic climate, economists are making many predictions about what’s to come for the housing market. But one real estate lawyer with decades of experience says that this reset was crucial and not necessarily indicative of the doom and gloom we thought we were facing.

Multi-colored houses with purple backdrop

The Employment Pandemic

by Meredith Caiafa and Sarah Greene

The pandemic has had far-reaching effects on employment law since it officially took hold in 2020, but the litigation and lawmaking surrounding it are mutating faster than the variants. Here’s how lawmakers and businesses can keep up.

Employment Law During COVID-19

Measuring Success by Results

by John Fields

Recognized Best Lawyers®* recipient Joseph F. Brophy on how his Firm determines success.

Measuring Firm Success

"Lawyer of the Year"

Texas "Lawyer of the Year" 2022

Charla Truett

Immigration Law

Dallas/Fort Worth, TX


Hybrid Work: Coping with Compliance Consequences

by Gregory Sirico

Communications platforms like Webex by Cisco, Zoom and Microsoft Teams are more popular than ever in the age of hybrid work, but are firms risking compliance for convenience?

Compliances Issues with Hybrid Work

Changes and Challenges

by Megan Norris

As the pandemic ebbs and many people return to the office, midsize law firms in particular must navigate a host of unprecedented questions about costs, culture and client expectations.

Changes, Challenges and Cost of the Pandemic

Forging Bonds, Building Business

by Crystal L. Howard and Lizl Leonardo

As disorienting and occasionally frightening as the pandemic has been, it has also forced lawyers to find innovative new ways to stay connected and do business.

Pandemic Sparks Innovative Ways of Conducting

Staunch Competition

by Andrea E. Nieto, Catherine H. Molloy and Jennifer W. Corinis

On the other side of the pandemic, after record numbers of employee resignation, protecting trade secrets is both challenging and being challenged.

Protecting Trade Secrets During Period of Res

Employment Entanglements

by Justin Smulison

As the United States approaches its third summer against the backdrop of the coronavirus, employers and employees still find themselves in a Gordian Knot of interconnected labor and employment challenges, with no clear way to untangle them all.

Post-Pandemic Employment Challenges Persist

How to Navigate False Abuse Claims in a Child Custody Case

by Ashley Jones

There’s hope for families to recover—a good lawyer is key.

False Abuse Claims in Child Custody

Trending Articles

Whistleblower Legislation Opens the Doors for More International Claims

by Justin Smulison

An Anti-Money Laundering Act, part of a recently passed Omnibus Budget in the U.S. Senate, is expanding protection for whistleblowers both domestically and internationally.

Shadow figure in spotlight against red and blue brick wall

The Best Lawyers in South Africa™ 2023

by Best Lawyers

Best Lawyers proudly announces lawyers recognized in South Africa for 2023.

South African flag

Announcing the 2023 The Best Lawyers in America Honorees

by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Best Lawyers Voting Is Now Open

by Best Lawyers

Voting has begun in several countries across the globe, including the United States, the United Kingdom and Europe. Below we offer dates, details and answers to voting-related questions to assist with the voting process.

Hands holding smartphone with five stars above phone

Best Lawyers: Ones to Watch in America for 2023

by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

Rising Transfer Taxes

by Angus C. Beverly

Transfer taxes in California are becoming a statewide trend with potentially national implications. Here is a breakdown of the effects in several cities.

State of California in orange with city in backdrop

Could Reign Supreme End with the Queen?

by Sara Collin

Canada is revisiting the notion of abolishing the monarchy after Queen Elizabeth II’s passing, but many Canadians and lawmakers are questioning if Canada could, should and would follow through.

Teacup on saucer over image of Queen's eye

Famous Songs Unprotected by Copyright Could Mean Royalties for Some

by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?

What the Courts Say About Recording in the Classroom

by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Announcing the 2023 The Best Lawyers in Canada Honorees

by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots

Announcing The Best Lawyers in Australia™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from Australia.

The Best Lawyers in Australia™ 2023

The Upcycle Conundrum

by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

Caffeine Overload and DUI Tests

by Daniel Taylor

While it might come as a surprise, the over-consumption of caffeine could trigger a false positive on a breathalyzer test.

Can Caffeine Cause You to Fail DUI Test?

Wage and Overtime Laws for Truck Drivers

by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US


2022: Another Banner Year

by John Fields

Block O’Toole & Murphy continues to secure some of New York’s highest results for personal injury matters.

Three men in business suits standing in office

Choosing a Title Company: What a Seller Should Expect

by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller