The COVID-19 pandemic has been one that has turned our lives upside down. I can’t imagine that there is a person in our state, country or world whose life has not been impacted by this virus in some form or fashion. The impact could be related to health- you or a family member could have been infected with the virus. The impact could be related to home finances- you or a family member could have lost your job or at least had your hours at work reduced due to the economic shutdowns associated with this virus. Finally, the impact could be related to your family- a divorce, child custody or modification case may have resulted from one of these issues related to the pandemic.
Whatever circumstances you and your family find yourself in, it is important to note that while changes have occurred in the legal system as far as the availability of hearing dates, trial dates and confusion around these changes, overall, the process of filing a lawsuit in Texas has not changed since the time of the coronavirus pandemic’s origins in the U.S. I would like to share with you some information on the filing of family court cases as well as how to proceed with a modification case during the era of COVID-19.
Filing a family court lawsuit
In reading the title to this section of the blog, you may have been surprised to see the word “lawsuit” show up. We don’t normally associate a modification, child custody or divorce case with being a lawsuit. Lawsuits are fancy legal proceedings that involve rich people, businesses or other things that seem a million miles from where we are in our daily lives. Surely, a regular dad or mom like you couldn’t be part of a lawsuit, right?
The reality is that a family court case is a lawsuit, as well. It doesn’t matter if your case doesn’t feel like a lawsuit- it is one. What this means on a practical level is that the process of beginning a lawsuit in Texas is the same now as it was in January or February of this year, before most of us could even spell coronavirus. What we need to do is to talk about what it means to file a lawsuit and how to actually go about filing one in the first place.
A lawsuit is a specific legal proceeding in which a person (referred to as a party within the lawsuit itself) or other entity is asking a court (the judge) to make a determination in their favor regarding a particular set of facts/issues. A judge in this context is referred to a fact finder. He or she will be expected to make findings of fact and issue conclusions of law. Those findings of fact and conclusions of law will relate to the parties to your case.
If you are the party who will be filing the lawsuit and seeking to have a court address your concerns, you will be the petitioner in the lawsuit. To petition is another word for “to ask.” You are asking the judge to assess your circumstances, determine the issues in play and then grant or deny the relief you are requesting. One party will draft an order based on the decisions of the court. The parties will sign the order, submit the order for judicial approval and await the judge’s signature. A signed document by all parties to the lawsuit as well as the judge means your case has reached its conclusion.
When we consider a family lawsuit, we typically are talking about legal matters that involve marriage and children. You will be hard-pressed to find a family law case that does not encompass issues surrounding children or marriage. When you are considering whether or not your particular circumstances call for a lawsuit you need to think long and hard about other options that are less invasive, timely and costly.
What other options are available to you before filing a lawsuit
The thing that you need to realize about a family court lawsuit is that the decision of the judge is final. Yes, you can almost always appeal a decision from a judge. Yes, you can modify a court’s orders (hence the title of today’s blog post). Yes, you can even request a new trial if there was a big mistake made by the judge or your opposing party in the initial lawsuit. However, for the most part, what a judge signs their name to in the initial lawsuit will be what sticks as far as orders are concerned.
This means that you need to be absolutely sure that you need to file this lawsuit that you are currently contemplating. There are almost always less permanent options that you can consider. If you are in a marriage that is struggling you can try marriage counseling or therapy before filing for divorce. Many persons that I know personally have attempting counseling during rocky stages of their marriage. Even though the counseling may not save their marriage, it is a small investment in the possible future success of their marital relationship.
When it comes to a modification case, it could be that a family court order from years ago no longer works well for your family. As a result, your or your child’s other parent may be strongly considering the filing of a modification lawsuit. In the alternative, you and the opposing party could always try to work out an informal agreement together that negates any reason to try for an official modification. Parents who can work together and co-parent effectively are in an especially good position to try and do this.
On the other hand, there are circumstances where filing a lawsuit is the only way to truly address the issues and circumstances in your life that are causing you problems and difficulties. For instance, if you or a member of your household (such as a child) have been the victim of abuse then filing for a temporary restraining order may be the best and/or only route that you should take. No amount of phone calls to the police can offer consistent and steadfast legal protection like a restraining order.
So, before you even consider filing a lawsuit in the family courts you need to understand what your options are. If you can avoid a lawsuit and a protracted legal case that would follow it is best to do so. In a time where getting your case before a judge may prove difficult to do, being able to work with your spouse on a compromise may be your best decision. If a lawsuit is your best or only option then that course should be pursued with arriving at a conclusion that puts your child’s best interests at the forefront.
Filing a civil lawsuit in Texas during this COVID-19 pandemic
There are two types of law that most of us will have an opportunity to encounter in our daily lives: criminal and civil. Criminal law (as you could probably decipher based on the word) refers to legal matters involving persons who are accused of having committed crime(s) in violation of legal statutes created by our legislature. The State of Texas most commonly is the petitioning party who represents all of us as “the people” of the state. The defendant is the person who is accused of committing the crime in question.
In today’s blog post, we will be talking about civil cases. A civil case is a legal matter that is non-criminal in nature involving parties in dispute over a particular circumstance or issue. A family law case is a civil case. Typical issues in family law cases center around marriages, children, family and parental rights that relate to those children. Family law cases can vary in the level of detail involved in each case. The length of a family law case can also vary from just a few weeks to much longer- depending on the parties, their circumstances and the nature of the parties’ disputes.
The title to our blog post today refers to a modification family case so I reckon we ought to discuss modifications, primarily. A modification refers generally to a family law case in which there is already a court order in place relating to a prior divorce or child custody case. Some months or years later one of the parties to that prior family law case is asserting that there is a problem with the order based on a substantial change in the circumstances of a party to the case or one of their children.
A substantial change in circumstances is a high bar to reach in order to have your relief requested approved by the judge. You need to be able to show the judge that the request you are asking for has merit (meets the aforementioned evidentiary burden) and also is in the best interests of any child involved in the case. You should not file a modification case and expect the case to be granted in your favor without a great deal of planning and effort on your and your attorney’s parts.
To file a modification lawsuit, you would need to either learn how to draft a petition to modify or hire an attorney to represent you in this matter. Drafting this petition is not as simple as the internet may lead you to believe, however. There are requirements that you need to be aware of or the document can be rejected by the judge or their clerk. If your lawsuit cannot be filed correctly then even the most meritorious case would never make it through the door of the courthouse.
Once you have your petition drafted, you would need to file the document along with any other required documents. Filings occur almost universally via the internet these days. This is a good thing considering how courts and the district clerk’s offices around Texas are closed to the public for the time being. You will need to provide notice to your opposing party of your lawsuit having been filed. A citation that will be returned to the court that specifies the notification to your opposing party, a notice of hearing if you set your case for a hearing as well as the petition itself will need to all be filed. Multiple copies of each document may be necessary as well depending on your case and the county in which you live.
What will the impact of the coronavirus be on your Texas family court modification case?
The long and the short of this discussion is that we do not know what impact the pandemic will have on your modification. Our area of the state has slowly but surely been opening up for business (literally and figuratively) over the past month. In Harris County, juries will not be convened until July 1st at the earliest. The district clerk’s office is still closed to the public, although its employees are working remotely to handle the civil cases that have been filed.
If your attempts to settle your modification case fail and you must move forward with filing a lawsuit be prepared to wait if you need to get your matter before a judge. Many reputable and experienced mediators are available to meet with you and your opposing party virtually in order to attempt to settle your case rather than to wait to see a judge. Work with a family law attorney to find out more about your particular circumstances.
Questions about family law in Texas? Contact the Law Office of Bryan Fagan
If you have any questions about the material presented 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 consultations six days a week via video and telephone conference. These consultations can go a long ways towards helping you learn more about Texas family law, your particular circumstances and the services that our office provides to our clients.