Dealing with closed courts and remote hearings during COVID-19

One of the realities of the COVID-19 pandemic is that we are no longer able to take advantage of the conveniences that we previously had at our fingertips. When my wife and went on our honeymoon years ago in Europe, we would often find ourselves wanting to eat dinner at different times in the evening depending on our schedule for that day. In the United States, if we wanted to eat dinner at 5:00 p.m. one day, 7:30 the next and 6:00 on the day after that wouldn’t be an issue in 99% of places. However, in Europe we learned that restaurants kept different hours on different days. There was no consistent schedule for patrons. It was not convenient.

After a couple of weeks of having to search for food, bathrooms, etc. in different places in Europe it got to the point where I was wishfully thinking about how easy we have it in America. How we could get the things that we wanted at a moment’s notice. We live in a microwave culture here. Europe is more akin to a slow cooker. The end result tastes relatively the same, it is just arrived at in different manners. 

I think one of the big lessons that we are all learning right now in relation to the shutdowns associated with the pandemic is the same lesson I learned back in Europe- that we all take for granted the conveniences of being Americans. If you wanted to go to the grocery store and buy eight big steaks for your family get together you could do that. If you wanted to go for a weekend trip without any planning all you had to do was grab a bag and hit the road. We didn’t even have to question about whether there would be a place to gas up on the highway.

While the extremes of the pandemic and its mobility shutdown are (hopefully) behind us, it is obvious that there are differences in our world today versus March 1. Nobody knows where this pandemic is going, what the virus will do next or how well we will all respond to the challenges presented by both. However, one thing is for certain: life must continue, both with the challenges and the successes that are part of it. 

The legal system and COVID-19

I remember back in mid-March I was getting my kids dressed when a friend of mine texted me to say that Harris County had cancelled jury duty through the end of March. This made sense to me in a way. If anyone reading this blog post has ever served on a jury, you would know that you spend most of your day waiting in a big room with all of the other potential jurors. An indoor room in close proximity to bunch of other people sounds like a virus’ dream. 

Then I stopped to think about it- the largest county in terms of population in the state of Texas was stopping its court system for an indefinite period. Had anyone ever heard of this happening before like that? Even Hurricane Harvey didn’t shut down the courts for that long. We made due with the civil courts opening their doors to the criminal courts when their courthouse flooded. Now we were left with people who needed to have their matters heard (sometimes on an emergency basis) who were being told that they would need to wait. 

In retrospect this was to be expected. The shelter in place orders came next, followed by the shutdown of all non-essential places of employment. The big box stores and grocery stores were about the only places that any of us could leave the house to go to. Even the parks were closed. We couldn’t get a haircut and we couldn’t have a hearing. That is what we were all reduced to in this response to the virus. 

The closing of our courts is a change of pace for every attorney who does business there, but especially so for family lawyers. Reason being is that family lawyers spend more time in court than just about any other group of lawyers. We handle a variety of matters that require in person hearings with great frequency. That doesn’t mean that if you file a divorce there is a high likelihood that your case will go all the way to a trial. However, it does mean that some aspect of your case is likely to require a hearing. 

A hearing is similar to a trial, in that you and your opposing party will appear before the judge. There will be a contested matter (even if it is a relatively small matter) and both sides will present evidence and ultimately the judge will issue a decision in favor of one party. Whether it was how discovery is to be conducted, whether or not particular evidence would be admissible in a temporary orders hearing or trial or another matter completely, these hearings ensured that your case would move along smoothly and not get bogged down. 

This is to say nothing about temporary orders hearings and trials.  Temporary orders hearings are essentially mini trials that are held at the beginning of your case. Temporary orders hearings will establish the ground rules for how you and your family will conduct themselves for the remaining weeks and months of your case. Custody, visitation, child support, spousal support, etc. are all decided in these hearings. If you and your spouse could not settle these issues outside of court, then you would head to the judge for a hearing

A trial is similar to a temporary orders hearing but its results will establish what your final decree of divorce looks like. The vast majority of divorces end up settling before a trial. However, there are the occasional cases that require a trial. These cases are usually very highly contested with parties who cannot agree to disagree or see eye to eye on very much. They require a trial in order to be able to move on with their lives, essentially. 

The courts are closed- now what?

We have already established that the family courts in Harris County are closed. There is no telling just when the courts will open up to the public for hearings, trials and even the day to day business that attorneys attend to when our clients don’t need to be there. We schedule things with the court’s clerk and coordinator. We request copies of orders. We pay for services. We attend mediation in Harris County buildings near the courthouse.  For family law attorneys the courthouse is the center of our universe in many ways.

Early in March, when the courts were closed for the first time, the family court judges of Harris County issued a statement on how matters related to courtroom proceedings would be handled for the foreseeable future. I would like to spend some time discussing those subjects now. 

What courts are actually open in the family court division?

There are certain courts that are currently available to the family law community in Harris County. Those would be the 280th, 310th and 312th district courts. These courts are available for essential matters. Essential matters are typically matters dealing with emergencies involving health and safety of children and other persons as well as requests for protective orders and temporary restraining orders. Historically the 280th district court hears matters related to emergency protective orders exclusively. 

Docket calls are no longer occurring

If you have ever attended family court in Harris County, then you are familiar with how the day gets started in any of the courts. The judge walks into the courtroom somewhere around 9:00 a.m. and begins to call his or her “docket.” The docket is a word that is synonymous with the cases that are set for hearings in that court on that day. The judge will call out a case, the attorneys for each party will announce present and one of them will tell the judge what their hearing will cover and how long they anticipate the hearing will last. 

Currently there is no docket call on days when court is in session. Many court settings have been reset to months down the road. Simple matters like the entering of a final or temporary order can be had according to schedule for the most part. Keep in mind that with only three courts being available for hearings means that even cases that remain on the docket may get pushed back weeks or more. 

One nice thing that came of this pandemic, however, is that agreed orders do not need to be “proved up” in person. A prove up hearing is really just a formality hearing where you and your attorney take your order signed by all the parties and go to the judge to have him or her review it, ask you a few questions and send you on your way after approving and signing the order. Now, if you send in an affidavit which contains a statement from you or your ex-spouse you can bypass the need for going downtown to the courthouse for a five-minute hearing.

Virtual hearings are here 

Technology has impacted our lives for good and bad during this pandemic. One of the ways that we have seen cases be able to “move along” despite the backlogs created by the government closures is that courtrooms are equipped to handle Zoom and other audio/visual conferences over the internet. Depending on your judge, you may be able to have your matter heard from the comfort of your home. 

You and your attorney should become familiar with the requirements and expectations of your judge surrounding virtual hearings. You can look up the policies of your particular court on the internet to determine if this is even an option. If it is, work with opposing counsel and your spouse to see if there is any way that a settlement can be reached which would bypass the need for a hearing. You and your spouse are likely in better positions to make sound decisions in your case than a judge who is extremely overloaded with cases right about now. 

Some matters can be decided by a judge outside of a hearing

Family court judges in Harris County have decided that certain issues can be decided without a hearing. Your attorney and your spouse’s attorney would submit briefs to a judge summarizing the issues in your case and making arguments on a particular issue that needs to be decided. The judge will read the briefs and issue a written decision that will be sent to the attorneys and uploaded to your case file online. The judge has the power to call a hearing on the matter if he or she believes it to be necessary.

What if you need to contact the court?

In the event that you or your attorney need to contact your court you can do so. Court employees are working from home and can respond to your questions via phone or email. While this means that you will be battling with other folks for the attention of court personnel it is a better set up than having to file questions into the case and to wait for a written response back. Everyone is overloaded with work right now and the patience of all of us would go a long way towards helping until we can get back to normal.

Questions about how the COVID-19 court closings impact your case? Contact the Law Office of Bryan Fagan

The attorneys and staff of the Law Office of Bryan Fagan appreciate your spending part of your day with us here on our blog. If you have questions about what you read, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week via video or phone. We would love to listen to your circumstances, provide you with information and talk to you about how our office can best serve you and your family. 

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