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.


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