Pandemics and world crises are not opportunities for gamesmanship. Advise your clients to review and abide by existing court orders.
By Carson Epes Steinbauer | May 27, 2020 at 03:51 PM
Even the most seasoned family lawyers with decades of experience thought they’d seen it all in terms of financial recessions, bear markets, real estate crashes and natural disasters which have slowed or altered the wheels of justice in some way throughout the years. But with the onset of the worldwide pandemic on March 11, divorce attorneys were compelled to adjust in unprecedented ways and attain a “new normal” in the daily practice of law. Below are practical tips to keep in mind in today’s world with the presence and unpredictability of COVID-19.
Accepting Change and the Virtual Practice of Law
With courthouse closures and the advent of remote court hearings following the onslaught of COVID-19, the Texas judiciary swiftly embraced online technology such as Zoom and Microsoft Teams in order to keep their dockets moving. Additionally, with social distancing and shelter-in-place orders, the traditional practice of law went out the window as individual attorneys moved their entire practices from plush corner suites to makeshift home offices. As with court hearings, all client meetings, mediations, and depositions transitioned online through the use of Zoom technology. The Texas Office of Court Administration quickly pushed out tips for handling remote hearings through Zoom, and the Supreme Court of Texas prohibited any nonessential in-person hearing that was deemed inconsistent with local, state, or federal directives as to group sizes. Essential hearings were defined as those deemed emergencies, time sensitive with deadlines that could not be suspended, cases with a liberty interest, or injunctions. All other proceedings not falling within those parameters were deemed nonessential.
Initially, the OCA issued guidance recommending no nonessential in-person hearings regardless of size until at least May 1. Effective June 1, however, courts may begin holding nonessential in-person hearings consistent with OCA’s “Guidance to Courts Regarding All Court Proceedings.” This guidance was developed following consultation with medical advisers from the Department of State Health Services. Courts wishing to delay nonessential in-person proceedings longer or advised to do so by local public health authorities may do so.
A key tip for divorce lawyers in the ever-changing landscape of COVID-19 is to stay apprised of all Texas Supreme Court emergency orders, and the OCA’s published guidance for court proceedings, which can be found online at www.txcourts.net, under the tab “Court Coronavirus Information.” The website offers detailed information on conducting successful Zoom hearings as well as a webinar Zoom training session that includes both technical know-how and practical tips for remote proceedings.
Also, remember to remain resourceful and embrace change. By adjusting and adapting to innovative technology and new ways of practicing law, old work habits are by default replaced with more energy-efficient ones allowing us to work smarter and not harder.
Pandemics and world crises are not opportunities for gamesmanship. Advise your clients to review and abide by existing court orders. Although districts are closed, in reality, schools, like courts, have transitioned to remote education, and therefore class is still in session. Therefore, when a court order mandates that a parent’s period of possession ends “at the time school resumes,” that means that the parent’s possession of the child terminates at the time the child’s school would have normally resumed as if the school remained open and no pandemic had occurred. Likewise, shelter-in-place and stay-at-home orders do not mean that custody exchanges are no longer obligatory. Custody exchanges remain essential in most cases.
Pandemic clauses unfortunately were not built into parenting plans or custody orders, and as a result, child custody concerns such as the ones identified above increased among families when the world shut down. To help address these concerns, the American Academy of Matrimonial Lawyers released pointers at the start of social distancing measures. The pointers encourage co-parents to (1) follow court orders; (2) follow state and local orders; (3) base parenting decisions and choices on reliable news sources; (4) use highest-level communication skills with a co-parent; (5) be honest; (6) arrange to make up for lost time; and (7) learn how to be virtual.
In short, it is important to advise parents that when custody questions arise in these unprecedented times, it is important to remain calm, act with reason, and do all things in the best interest of the child.
Mindfulness, Empathy and Relationships
With the ever-changing legal landscape, telecommuting, and the need to learn new technology, it is not surprising that most lawyers have had little to no time to engage in self-care. The divorce world is contentious and often negative, and working in isolation can wear on even the most seasoned of litigators. It is important to remember that we are all in this together. Stay connected to co-workers, colleagues, and mentors, and remember to take time for yourself outside of work. So many lawyers have turned to social media to share tips and new ideas for legal practice and courtroom advocacy during the pandemic, as well as funny anecdotes which provide much-needed levity in the face of 24/7 negative news updates. It is extremely refreshing to watch so many members of the Texas family bar lean in and share support for each other with such professionalism and empathy in this period of uncertainty.
Carson Epes Steinbauer is a partner with Shackelford, Bowen, McKinley & Norton. She is board-certified in family law, and regularly represents clients in high-net-worth divorces, custody suits, interstate jurisdictional disputes, prenuptial and postnuptial agreement drafting and litigation, and termination and adoption cases.
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