Due to COVID-19 safety and social distancing mandates, very few family law issues are being heard by judges in person at the Texas family courts. Unfortunately, many Texas citizens and their children now face serious financial and emotional consequences due to delays getting to court—as much as two years! How did we get in this mess, and what can we do about it? The state, judicial branch and family law attorneys need to work together—and aggressively—to find a resolution.
How did the Texas family courts get so backed up?
During the early days of the pandemic, hearings were put on hold. A few months into the pandemic, many judges in the Texas family courts transitioned to Zoom videoconference hearings, which helped move some cases along but not fast enough.
A year later, the Texas family courts are SO backed up that people who file for divorce in 2021 are looking at a two-year wait to get into court for a divorce or to resolve complex property or child custody, visitation and child support issues.
We also have an inordinate number of pro se parties (people representing themselves in court) getting on judges’ dockets for issues that would have been quickly dismissed in open court pre-COVID. Many don’t have proper paperwork prepared or a legitimate case, yet they get a 20-minute Zoom hearing with a judge—time that should be reserved for people who really need help. While we applaud the right of individuals to have access to the courts, there appears to be no process in place to weed out extraneous cases.
What happens when people can’t get into court to resolve their divorce and custody issues?
The downstream effects of the bottleneck are a lot broader in breadth and scope than most people think. When the court system is bogged down, the impact trickles down to child custody, visitation and support cases, and it trickles down to family violence issues, too.
The bottleneck also affects the asset side of divorce. Parties who need quick access to a judge to preserve assets and put a remedy in place—should one party decide to waste funds from a community estate—could face financial peril.
When you have people wasting assets or refusing to pay child support and judges unable to enforce child support or address financial concerns quickly, some people reach their breaking points.
In the past, clients could obtain a temporary restraining order essentially requiring the other party to “play nice” until the parties could appear in court. The temporary restraining order expired after 14 days, so it had to be heard that quickly.
These hearings eliminated much of the self-help and remedial measures people would take due to emotional turmoil or not being able to think clearly due to divorce or a suit affecting the parent child relationship. Parties would have their day in court, where a judge or arbiter would say, “Let's go through the issues, hear your story and let you get your thoughts and feelings out. After that we’ll make a decision on what the temporary orders will be until the case is finalized.”
In the early days of the pandemic, Tarrant County replaced temporary restraining orders with a standing order that basically includes those same “play nice” terms but typically nothing specific to the case. Those standing orders automatically go into place when a party files for divorce and attaches it to the pleadings.
Without a temporary restraining order, parties don’t get a hearing within 14 days. With the standing orders now in place, it could be months before a hearing for temporary orders is scheduled, and people end up stuck in limbo for the entire time.
Other parties whose work or financial circumstances have changed due to the pandemic (or other reasons) can’t get a prompt modification to child support or custody either.
What happens if a client needs an immediate remedy?
In many cases, they may have no immediate recourse and children end up suffering. A husband could cancel credit cards, shut his wife out of a bank account and block her access to funds. A mother could take a child and claim the father has a drug or alcohol addiction without presenting an argument to the court, where it could be proven or disproven.
Even worse, kids end up tossed in the middle in these limbo scenarios where you can't get to court quickly. It's a much bigger problem than people on the outside realize, and it will become an even bigger problem in the future if we don't work aggressively to resolve the bottleneck.
The backlog and new virtual world of family law have created other problems
Judges aren’t getting all of the information they need to make just and fair decisions.
When parties do get in front of a judge via a Zoom hearing, many of those hearings are bound by tight time restrictions. For example, we recently had a Zoom hearing where each side only had 20 minutes to plead their case. That’s not adequate time when you’re dealing with complex property issues, family violence or a child custody dispute, and you need to present numerous exhibits or conduct thorough cross-examinations to reveal the full story.
Constitutional rights are under attack
If you told anybody in our business two years ago, "You can't get a trial for two years,” they would have been floored—but that’s the reality in the Texas family courts. We have a right to a speedy trial as a matter of our Constitutional rights. The Constitution also affords us the right to a trial by jury and the right to due process of law. People died for those rights, yet the ongoing backlog of cases due to COVID is stripping those rights away from many Texas citizens.
What can Texas and the legal community do to resolve the bottleneck?
Many cases can be resolved through means of alternate dispute resolution like arbitration, mediation or with a private judge. However, access to good mediators and private judges is almost as difficult as getting into court these days.
Too many Texas families are suffering and will suffer because there is no coordinated effort to get the family courts out of this mess. The legislature, judicial branch and family lawyers need to work together to turn things around, and doing so should be a priority.
What else can we do?
Run virtual courtrooms on the same schedule as traditional courtrooms. What some judges have done very well is run their virtual courtrooms on a similar schedule to their traditional courtrooms. They roll through their dockets the same way they did in the past, and if a cancellation comes up, another case moves up. This tactic kept the family courts on track in pre-COVID days and could do the same in the virtual family courts.
Add more virtual docket calls. Some judges have been open to scheduling more virtual docket calls, which can work exceedingly well. They ask how much time the attorneys need, allow the lawyers to talk about their cases and put the lawyers into breakout rooms when needed. The lawyers try to work through issues together, much like they would at the courthouse. In some cases, this virtual solution works even better than in person.
Open the lines of communication. State legislators, the judicial system and family law attorneys need to get on the same page. Every contingency has probably exchanged some terrific ideas among themselves but those ideas have not been shared collectively or consistently.
Holding an open forum where we hear from a panel of judges, litigators and legislators from across the state could be an important first step toward resolving the bottleneck. That conversation would open the doors to knowledge and a path toward providing the citizens of Texas the family law resolutions they need in a timely fashion. That conversation needs to happen now.
Justin Sisemore is the founder of The Sisemore Law Firm, a leading family law practice in Fort Worth.