There is a general feeling right now, at least I'm picking up on it, that the times we live in are entirely novel and unique. In many ways, this is true. None of us have lived through a time when the government-mandated businesses, churches, and government offices close due to a global viral pandemic. The things that we have witnessed are a rising unemployment rate, masks being mandated in businesses, and national debts totaling over 100,000 or concepts that our minds would not have been able to grasp even six months ago. I would agree that the times we are living in are undoubtedly unique.
One of the ways that we have seen our world change at least temporarily over the past few months is regarding the legal system. No, for the most part, new laws have not been created, and it is not as if martial law or anarchy has been declared. However, given the mandate to social distance from our government, most courts have abided in closing their doors to most all businesses since the beginning of the pandemic. Some courts have remained open. In court, the staff is still able to conduct business over the phone and via the internet. However, practicing attorneys have learned that it is anything but business as usual at the courthouses.
With the closing of many courtrooms at the courthouses in Southeast Texas, clients are acutely impacted by family law attorneys. I say this for a couple of reasons. Number one, family law attorneys in their clients are in court more than just about any other attorney and client team. The nature of practicing family law is that while most cases do not and in the courtroom after a trial, many patients require at least one hearing to settle issues that cannot be resolved between the parties. The closing of many family law courts temporarily has impacted how these issues have been resolved.
Number two, since family law cases impact power families directly, the court closures have affected the daily lives of family law clients. A family law case is not like a business dispute where the meat and potatoes of the conflicts themselves can be left at the office, and parties to a case can go home to their families and forget about these cases for the most part. Quite the opposite, Family law cases are intensely personal and intimate matters which involve the most basic structures of our lives. The government shutdowns impact the family courts means that families are being affected on an around-the-clock basis.
Changing circumstances means evolving needs within a family law case.
I don't want to go out of my way to make it seem like the era of coronavirus will be marked By a great deal of uproar, but then again, if you watch the news at night, you could undoubtedly construct an argument to that point. With all the changes going on with our society and government, you can see that there is an opportunity for problems to occur even on the family level. Disruptions to our regular schedule make it possible for these problems to occur and the need to have them addressed by a court to arise.
When it comes to family law, parties are provided structure in their habits by family court orders. Those of you who have gone through divorce know that your final orders in a case can be found in a final divorce decree. Likewise, those of you who have gone through a child custody case know that a suit affecting the parent-child relationship has its type of last order. It is the expectation of the court that all parties to those orders will follow those orders in the future.
However, we have just talked about how there may be circumstances in which parties violate court orders. Enforcement cases in the world of Texas family law deal with violations of a court order and determine whether or not a violation has occurred and, if so, what a judge will mete out punishment in response to those violations. When a court finds you have violated one of its orders, you are held in contempt of court. These are serious matters in what I would like to talk about for the remaining portions of today's blog post.
Enforcement cases in Texas
Family law court violations over family court orders can occur whether the order is based on a divorce or child custody case. When it comes to children's issues, those violations typically occur in areas such as child support, Visitation, possession, access, or conservatorships rights and duties. Divorces can, of course, encapsulates similar issues but having added elements to them related to property, debts, and assets. If a party to a divorce fails to abide by the property division from that divorce case, then an enforcement case may be filed as a result.
The nature of an enforcement case is such that it is a part civil matter in a part criminal matter. This is true because the civil matter emanates from the family law aspects of the case. The criminal law aspects of the issue related to potential punishments involving jail time or deferred adjudication, which a judge can hand down due to being found to have violated a family court order. As a result of this, if your spouse is pursuing jail time against you as a punishment for having violated a court order, you are entitled to legal representation And a trial by jury if you so choose.
Otherwise, common and enforcement cases have typical penalties related to fines per violation, attorneys' fees, and makeup Visitation. I can see makeup visitation being a crucial aspect of an enforcement case during the COVID-19 pandemic. Reason being that it is not out of the realm of possibilities that a parent may have violated a court order by wrongfully withholding possession of their child due to exaggerated concerns over the risk of their child getting sick. I'm going to get her parents' home. If you have acted in this way and your Co-parent files an enforcement case against you, you can expect to have to give up part of your future Visitation time with your child to your Co-parent to make them whole.
If the shoe is on the other foot, and you choose to file an enforcement case against your child's Other parent, then I would like to share with you the basic process of how you would go about doing that. A word to the wise is that an enforcement case can be much trickier than a primary child custody or divorce case. This may surprise you, but because there is already established precedent from your initial federal lawsuit, the issues that arise in an enforcement case can be more detailed and require a great deal of attention. For instance, if you do not draft your motion for enforcement in the correct format, you may not seek relief from the court. As a result, you will likely require the assistance of an attorney if you plan to proceed with filing an enforcement case in Texas or defending yourself in one.
The general structure of an enforcement case in Texas family law courts
the available form of an enforcement petition is as follows. A party seeking to enforce some aspect of a family court order would need to alert the family court to the parties involved, their history in that court. It would need to specify the alleged violations and the dates they occurred. The portion or portions of the family court ordering question that were allegedly violated will also need to be included within the petition itself or will need to be included as exhibits. With as many moving pieces as there are in an enforcement petition, you can see why I recommended that you inquire about legal representation.
The enforcement petition Would need to be filed with the family court where your original file case was held. A notice would need to be given to your opposing party not only of its filing but of any court date associated with a hearing on this matter. This is where we can begin to see issues arising with COVID-19 in your case. The most obvious impact is that family courts are not as readily available to hold hearings as a few months ago. Emergency matters are being held more regularly to the safety of the parties involved in those kinds of cases. Those are cases where time is of the essence. Anne cannot be delayed more than they already have been.
As a result, your case may be pushed to the back of the line more than it would have during other times. This can be a good thing in a bad thing. It can be a good thing because it may allow you and your opposing party more excellent time to negotiate on possible solutions to these circumstances that do not involve going before a judge. For instance, if your ex-spouse denied you Visitation with your child against the terms of your final decree divorce, you may be able to take advantage of the weeks you have leading up to your court date to negotiate a settlement on these issues.
How a court would enforce a family law order during the coronavirus period
Ultimately, suppose a court finds in your favor and holds an ex-spouse, co-parent, or opposing party in contempt for violation of a court order. In that case, I believe that contempt findings will be enforced in much the same way as they were before the pandemic. If your opposing party owes you back child support, then the order will need to be drafted in signed off on by all parties, including the attorney general's office, which lays out a specific repayment plan or structure. Either you or the attorney general's office could return to the judge and inform them if your opposing party does not abide by that order.
Judges may be less ready to put people in jail for failing to pay child support right now. The problems nationwide as far as incarcerated persons are infected with the coronavirus. As such, deferred adjudication for your opposing party or ex-spouse may be more likely. This is still a significant burden for that party to bear; it is a considerable deterrent to ever violating child support provisions again. Are there types of contempt findings that result in fines being assessed against an opposing party that a court primarily enforced in the same manner they would have before a pandemic? You may not be able to get inside of a courtroom or before a judge as quickly as you would like, but your case's result is unlikely very similar to what would have been pre-COVID-19.
Questions about Texas family law cases during the COVID-19 pandemic? Contact the law office of Brian Fagan.
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge computations six days a week in our office, via video, and over the telephone. We are honored to serve our community and look forward to the possibility of speaking to you about the services that we would be able to offer you and your family. Thank you for choosing to spend part of your day with us today; we look forward to you joining us here on our blog tomorrow.