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Episode 12 - The Continuing Impact of COVID-19 on Family Law


Episode 12 - The Continuing Impact of COVID-19 on Family Law

Welcome to the top Texas Lawyers podcast. This podcast is brought to you by the law firm Abercrombie and Sanchez PLLC.

Your hosts are Brian Abercrombie and Samuel Sanchez. Brian has been practicing law for 18 years and his board certified that sort of legal specialization in the area of family law. Sam has been practicing for 13 years, is licensed in both Texas and Florida, and is a certified mediator. This podcast is for informational purposes only and all views are the opinion of the hosts. It's not designed to provide legal advice for your particular legal matter, and it should not replace the advice of competent counsel. Welcome. And we hope you enjoy the top Texas Lawyers podcast.

Good afternoon and welcome to the top Texas Lawyers podcast for this March, The Where we at 23rd 2020 edition. With me as always is my co-host, Samuel Sanchez. How are you doing, Zain?

Not too bad. Chocolate to your chocolate chip cookie.

That's right. The flavor of life, Sam sunshine, cinnamon in your coffee. So we obviously, due to the unprecedented stuff that's going on in the world today, we're probably burned. We're going to dispense with our our previously scheduled podcast and talk about what's going on with cases and what's going on with this covered 19 crisis. We're all seem to be faced with. It's in every single state. It's involving just about every facet of your life. And as if you're anything like me, Sam, I'm holed up inside my house with the wife and two kids and we're doing home school and all that other kind of fun stuff.

So, yes, parents are definitely taking on a lot of different roles now.

Yes, I'm the principal, I think. I'm not real sure. I think my wife might be the principal, but homeschool is definitely a challenge. I definitely give a shout out to all the teachers out there in the world. You have an impossibly hard job and it's very, very difficult. And if I didn't appreciate you now, I didn't appreciate you before. I apologize. And I certainly appreciate you now. But I think I've always appreciated what teachers do this. They certainly don't get paid near enough for a for the job that they do for our kids.

But all that said, let's talk a little bit about our topic de jure, our topic of the day, which is, you know, kind of how this covered 19 is going to affect your civil case, your legal matter. Let's talk let's just let's start cutting it up and see what we can do.

Yeah, no, I think that's a great idea. I mean, obviously, you know, our last podcast, really, we had some great guest guests with this kind of talking about it from the person perspective. Still the professional perspective. But I would tell you legally, there's some substantial things are coming out in kind of break them down a little bit, both in Texas and Florida, because they're handling them differently. But, you know, both of these states have large, large cities, large populations. Not everybody is as quick to embrace the federal recommendations. You know, social distancing as other people are in Florida is a big vacation state. Obviously, Texas has our own coastline where spring breakers lived to go. And so, you know, a lot of things that are coming down from the Supreme Courts of both states are having substantial effect on how your legal matter is going to pursue. So I guess the first place I would recommend that we talk about Brians. OK, so let's say you've been thinking about filing. You know, what are you seeing in in Harris County, Montgomery County, in the Houston area in Texas, that courts are really saying, like, what can you get in? Can you get in at all? Should you file?

Well, what I've been seeing is, you know, it's unprecedented. I mean, we now have I mean, this has never happened. I've been practicing law for 20 years now, and I've never seen the Supreme Court issue orders.

And they've issued six orders in the last, what, two weeks? And, you know, I've never seen anything like it. And, you know, they're trying to. They're trying to head stuff off at the pass and they're trying to you know, this is an unprecedented crisis. And as I understand it, the CDC is trying to do everything possible to stop this virus in its tracks because it's so contagious. And, you know, you hear all this stuff on the news about flattening the curve. And, you know, that's what it looks like they're trying to do with all this stuff. But with respect to your question, what I'm seeing is obviously courts, you know, courts are, you know, for lack of a better word, kind of shut down or on hold. Really. They're not shut down, but they're on hold. A lot of courts are trying to figure out what the next steps are. You know, right now they're there. You can get in there if you have an absolute emergency. You can get in there. But short of an emergency, you're going to be on hold for a little bit until they figure all this stuff out. I mean, they're trying to make take some unprecedented steps with, you know, courts, you know, be a V, a remote access or, you know, via phone or Skype or, you know, different things I've seen. I think there was one judge up in Plano who was doing court via Skype from her home. Right. Yes. It's just it's unprecedented. I think courts are going to have to maneuver their way through this. But what I would tell potential clients is, no, I'm you know, they are tolling some statutes of limitations. They are tolling different things, and they are resetting a lot of hearings. But I I would tell you not to not does not file. I mean, still take care of the legal work that needs to be taken care of. Go and get your filing. But just understand that you might have to be patient with getting potentially a hearing before the court.

Same thing up here, north Texas. And I would tell you in south Florida, very severe. Things obviously 254 counties in the state of Texas, all of them. Bye bye, Governor Abbott's declaration in a state of disaster.

What does that really mean? Well, you know, like you said, Brian, the constitutional limitations that are typically going to be at play in your case, which may be like deadlines to respond, you know, if you elect to have a jury know all these kinds of things that are constitutional rights are for the time being being suspended or delayed. And so but if you delay your filing, what we're seen is that the queue is continuing. And so what I mean by that is it's like getting on a call, you know, for all. Let's say you're calling know the doctor's office and they tell you like or let's say your license plate. And they're like, hey, you know, we're gonna take the way the calls in the order in which they were received. Well, your filings are really being handled the same way by most counties. And all the you I was just saying, like, you get in line and you state you don't step out of line, because if you step out of line, your place in line is gonna be filled by somebody else. And so, you know, the more that people will kind of waffle or hold and say, like, gosh, you know, I really want to wait. They could just expect longer waits on the tail end of this rather than being already in the queue.

I agree. I think I think if you have a legal matter, you feel it's important. I wouldn't, you know, just understand that you're gonna have to be patient on the side, you know, with working with the courts. But as far as filing goes, I mean, obviously, in Texas, we can e-file. So you don't even have to appear in court to to to file something unless you're as a process client. But that's a totally different ballgame. But, you know, attorneys can file things online, you know, obviously phones and, you know, phones and all of the stuff that we have are still available. And that's that's all. Let's talk a little bit about the different types of actions that we could be dealing with. Let's talk. You know, obviously, you and I are both skilled in family law. So let's talk a little bit about how family laws affect that. Let's talk about let's talk a little bit about I know Tarrant County. I just was this morning they issued a standing order, which, you know, that's a kind of a joke amongst lawyers because every county just about that practice and has a standing order except Tarrant County. And we were talking for years and years about Tarrant County adopting a standing order or coming up with a standing order. And they didn't do it and they didn't do it and they didn't do it. And now it takes this kind of natural disaster forthem to issue a standing order. But it's a good thing. And I think it helps keep the status quo. I think it does help everybody working and playing well with others. And let's talk a little bit about standing orders.

Yeah. You know, I think that's going to be really important about understanding the effect of the standing order in anticipation of filing. Or if you filed and you're currently under a standing order, what does it typically do?

Let's talk a little bit about what a standing order is so that everybody kind of knows the kind of the inside baseball of Stanley standing orders.

Sure. A standing order and thinking is the best example that I can give people, is that a standing order is really like a Polaroid picture. Right. So I think about taking a Polaroid and I don't know, most of our listeners are probably way too young for Polaroids, but if they're not used to take this picture, you would slide out basically a cardboard based photograph. You would shake it around until it dried. But once it dried. Was set, you couldn't change. It was in a digital image. That's the same thing that a standing order is a standing order really takes into effect. The second that somebody's files and it's usually standing orders are mutuel upon service, meaning that if you file it instantly is an effect on you. The second that you serve the other party or they execute a waiver of service, accepting that order that the process has begun in that order takes effect on them. I want to say that it's a it's a Polaroid picture. Nothing can change, really. That means like nobody is going to empty out bank accounts. Nobody's going to run up credit card debt. Nobody's going to have a bonfire in the backyard or a garage sale in the front yard. We're going to behave 14 to 21 days, you know, depending on these relax deadlines. Nobody really knows those. But I would tell you that the standing water applies to the entirety of the case. So those are protections for both persons and property. Right. So that means we're not going to threaten harass each other. We're not going to call 100 times and hang up. We're not going to post negative things on social media about how terrible somebody is or, you know, how please, you know, I want to hire somebody to come and take care of this problem for me for hire, take the kids out of state or cut off my electricity or cut off the water.

But I see him as a Polaroid pictures. Is that what Sarah Connor at the end of the first Terminator, then the kid take a picture or a Polaroid of Sarah Connor and give it to her at the end of the movie is great Polaroid. And she was like, really? Really. She's a beautiful lady. Good luck in Germany. That's exactly what a Polaroid is.

Exactly. Brian, so like what's important? That client? Need to understand is they're contemplating. Do I file? Do I not? Sometimes having rules is the best thing you could possibly do for your matter in family law. Because without rules, what people are left to is to do whatever they want. And so think about being, you know, a lot of times when I try to tell people, when you go through a process like a divorce or a modification or actually affecting parent child relationship, whatever it is dealing with family. Everybody sometimes will revert to their two year old self. And so when you're two, there's only a couple things that really matter to you. One is what is yours is yours and what is everybody else is is still yours. And they you know, really that kind of mentality permeates really difficult cases when you talk about family.

If you talk about kids, the most important things you will ever create usually is going to be your kids. The second thing that's going to be most important to you is the stuff that you worked for all your life. And when you ask anybody, do that process who that stuff belongs to. Most of the time they're going to say, well, it belongs to me. It's mine. And so without rules, how do you control who has possession and who pays for stuff to maintain some speaking rules?

The last of the last week has been kind of an unprecedented where the the Supreme Court has, you can argue, the constitutionality of some of these orders. But I mean, I know that's for another day. But what what the Supreme Court basically did is said there was this big, big hubbub going on with that. And this was a big dispute among lawyers where the standard possession order said that spring break, you know, it belongs to one parent from the time school that's out to the time school resume. That's typically the expanded standard possession order for for spring break visitation.

So people were taking that to mean, OK, well, schools canceled. So I guess I get to hold on to that kiddo from from the time school spring break lets up until the time school that goes back in. And I don't know about you, Sam, but our school is not coming back until the middle of April now, and it may or may get stretched out even longer.

So people are making the argument, well, it says until school resumes. So I guess that means I can keep that my child for a month.

Well, not exactly, because the Supreme Court came out with and this is the first time I have ever seen them do anything like this with related to us to a to a family case in the standard possession. Or they said, as Matt, you know, with no exceptions, that that standing order applies. This I'm saying not the standing order, but the standard possession order means that the way the school calendar reads. That's what you go by. If school was supposed to go back in session on March the 20th, because that's the end of spring break. Then that's when then that's when it goes regardless of what's going on because of this natural natural disaster. And I'm really trying to prevent people from taking advantage of this natural disaster and using it, you know, using a third to their advantage in a custody matter.

I agree wholeheartedly, and it is unprecedented for the Supreme Court, really. You know, it's rare for people who practice family law to see many decisions come from the Texas Supreme Court with implications towards family law. It doesn't mean that they haven't. It's just rare. And so for them to come out with a specific order dealing with this particular issue just tells you how wide ranging and how big the effect of these orders were in relation to Kobe 19. Because, you know, really people don't understand. What do I do? Because my order doesn't take into account these types of situations. The same thing for courts. Brian, I would tell you that, you know, one of the things that we're going to see shifting and changing in our legal profession, you and I have kind of been at the forefront of this, as you know, like can we make the practice of law much more accessible to the public without necessarily having to come to us?

Can we bring the lot of them?

Well, I'm telling you that right now, courts across this entire country, specifically in Texas and Florida, because these are the places that we practice, are wrangling with that right now, because courts can't just shut down the whole process. There has to be accessibility to the legal world for, you know, the general public. And right now, yes, it's absolutely curtailed. But they're definitely looking at there've been orders from the Texas Supreme Court. They've been orders from the Florida Supreme Court about remote and distance practicing. Right. Does that mean that we're using like medical professionals? Are we using, you know, online technology portal technology to allow people to log in to have, you know, a protected hearings while still maintaining the protections that we want? Because we obviously know, like, you know, not everything is secure. If you're using somebodys Wi-Fi and so like all these kinds of things are what thing what courts and the Supreme Court really not just at state level, but at the federal level are dealing with.

Right. And also, there's a whole matter of, you know, the just the formality of court. And, you know, certain exhibits have to be, you know, in the courtroom and have to be, you know, reviewed and authenticated, you know, for evidentiary purposes and different things like that. So they're having to make borders surrounding all of that kind of stuff, because obviously you can't just hand an exhibit to a judge to review something. You're not in the courtroom, obviously. So, you know, how do those things how do you know you get a witness if you're if you're doing a hearing remotely? How do you get a witness to review a document? I mean, those those are all things that the courts are grappling with and they're all things that the courts are going to have to have to solve going forward. And I think I think you've got a lot of really, really good judges out there. You've got a lot of good judges who are using a lot of creative measures in order to get these things and get these things resolved. And one thing I have noticed is they're doing a lot more remote mediations now. And normally than that, the normal rule of thumb is with a mediation, you go you have to go into the mediators office of the mediator comes to you. But the the idea is you have to be present and the mediator has to be present, has to be able to speak to you, has to be able to see you, have to see your attorney.

You're doing a lot more remote mediation via Skype or whatever other whatever other means you want to use Google, hang up, whatever it is. And that's also something that's been going on as they've been doing a lot of that. I've also seen a lot of issues with you people offering to be private judges on cases or different things like that that you could potentially agree to basically a private judge or something akin to an arbitration to help get your matter done faster. Although I would tell you that without a court system, we're going to have a societal breakdown. And that's because if you can't get redress from the courts for, you know, certain things, then that are that are going on. It's it creates a huge vacuum in our society. And I think that leads to a lot of civil unrest. So what they're trying to do is do anything they can to accommodate the situation so that we don't have a breakdown and sit in the system and we don't have, you know, it's going to be justice delayed. There's no question about that. But is it going to be you know, it's it's not going to be no justice.

They're going to have they're going to have they're going to make, you know, make the proper allocations for what needs to be done as.

And Brian on that. So like, I guess I want our listeners to comprehend this. If you have an emergency situation, you're still going to be able to get to a court meeting. You need to get in touch with a lawyer, competent counsel. But though those court judges, whether it be one or five or how many they're keeping on, depending on the size of your city, you know, they are keeping personnel available for emergencies. Absolutely. So if you're a victim of domestic violence, if you're a victim of child abuse, you believe your child has been abused while in possession of another person or you're predator and the other parent, or if you feel like there's an emergency situation in relation to a particular asset that's going to be gone forever. If you don't act, you can still get in to court. It's just there. And I'm not saying that, you know, everybody's issues aren't. Important, there's just different levels of importance, and so what I would encourage clients to consider and contemplate is, is this something that is immediate? Because if it's immediate, you and your lawyer really need to have that conversation.

And it's very likely that you can still get relief. You can still get emergency orders. But you just got to understand that, you know, those are going to be very narrow types of issues. And a court is going to contemplate right now because they're running on a skeleton crew. I know that in Florida, I think they're down to essential personnel only in courts, meaning that there's typically going to be maybe one or two judges who are remaining available to take any kind of emergency hearing. I know in Tarrant County in Dallas, the same Dallas County just got a shot. They just got a shelter in place order. So, you know, if it's not one of these exigent circumstances, you're not going to get in front of a judge right now. You will later. And so that's really where our advice comes in about not waiting to file. Like if these are issues and concerns, at least get your place in queue. I can't stress that enough. Rather than waiting and then having to really be at the end of the line and a much more than that.

Another thing that the courts have come up with is they've they've come up with an effort to try to kind of assuage some of these issues. I mean, people are really suffering. I mean, people are out of jobs. People are you know, people especially in the service industry, are really, really suffering right now because, you know, they may have gotten furloughed with us, you know, 24 hours notice because the restaurant shut down or they're their companies, you know, just can't afford to pay them right now. So one of the things that the courts are doing to kind of help in this situation is saying, look, I mean, evictions, things like that, if you're trying to evict somebody from from a house. I mean, obviously, it's going to stink for landlords and stuff like that, potentially. But if you're trying to evict somebody from a house or an apartment, I mean, you're gonna be delayed. I mean, and if and if you're the person on the other side of that's that's potentially going to be evicted. You do have some time where you're not going to lose your house. You're not going to lose the place where you know where you're residing, at least for a while, until I think they're saying right now, not until after April the 19th. I mean, it does suck on the back end where they'll be a big bill. But it does it does provide some immediate protection so that you're not being kicked out of your house.

Yeah, I think the big part of that that I would encourage claims to do is, you know, what you don't want to do is take the ostrich approach, right? You don't want to stick your head in the sand and say, don't worry, everything is going crazy around me, but it'll be fine by the time I lift my head up. Everything will be back to normal. That's not the way you really need to address kind of the issues as you're presenting themselves to you. So as an example, if you're worried, I can't make my mortgage payment. I know I'm not getting a paycheck right now, but I have a child support obligation. You really need to contact these departments. Put them on notice saying like, give them the information that you have, because if not, they're just kind of looking at.

They don't know whether you're still employed or not.

If you have a terrible relationship with your ex or, you know, the father of your child, mother of your child, and you have these financial difficulties, it's really behooves you to bring them into the loop, because it's never going to be an easy conversation to say, like, hey, I don't have money. So you're not going to have money. But it's better at least that you have, you know, everybody on the same page trying to get some relief. You know, like a lawyer has the ability to help you at least possibly get some things deferred. You know, maybe your loan gets extended. There's just a lot of different packages, a lot of different programs that are coming online every day. You know, as a quickly changing situation. But every day, something new is coming on to try to help people in those situations. So you definitely want to reach out. Definitely want to try to stay as informed as you can.

Rather, it's kind of what we get. What Sam and I talked about earlier before we came on was basically there's going to be, you know, this stuff is going to start coming to a head where you're talking about balancing the interests of constitutional rights versus public well-being.

So, you know, you have all of these, you know, you know, county judges and different things, issuing orders and saying that this is this and this this is that, you know, and they're they're really at this point asking people to comply.

And I think, you know, at some point they may not be asking anymore. And, you know, I think we're we're fastly if we if we haven't already reached that point, we're very, very close to that point. So, you know, I think the courts are gonna be filled up with cases here in the near future dealing with the constitutionality of some of these orders versus the public well-being to keep, you know, keep the public safe with this. Again, with this virus spreading rapidly.

Absolutely. And, you know, it has it has family. I mean, obviously, it has wide reaching implications across all areas of law. It will touch on in future podcasts. But as far as you know, it's just the family context. Right. It absolutely is going to affect family law matters. And I'll just give you a simple example. I had a client who called very upset saying, hey, you know what? I'd been talking to my child's mother. You know, we'd been agreeing to limit contact to our child. And so she picked up the child, instantly went to the local convenience store, walked the child around so that she could pick some stuff up, then wanted to go to do a whole bunch of shopping, took her to like five or six different stores. And he was like, you know, the exact opposite of what we had decided to do. I want to withhold possession or I want to immediately be able to go in and shelter and protect my child, you know? Well, during that period of time, typically under most constitutions, I would say at least in the United States, a parent is entitled to do whatever they want to with their child so long that it's safe.

Right. But to determine what is safe right now, it's very difficult. You know, these are not federal mandates or federal federal recommendations. And if you happen to be living as an example, this gentleman lives in Dallas County. Well, Dallas County has a shelter in place order. His mother lives in Tarrant County. That's about 17 miles away in Tarrant County. There is no shelter in place order, meaning that that people can still move freely around. So in that situation, you have an order that says one parent cannot go outside of their house except to go to the grocery store to seek medical assistance. And the other the other parent can run around as much as they want to, 17 miles, extremely densely populated metroplex area, just circumstantial like you go to court. And what what's the court going to do with that? These are very complicated, difficult situations that a court you're going to have to wrestle with as we go forward.

They absolutely have constitutional. And I have a very similar situation with the client who. Well, that's not similar, but it is a situation where a client who's the mother of the child will not allow dad.

Filed because he was overseas while he finished 14 days a quarantine. But she's just not comfortable with it. So, you know, is she justified in keeping the child away from him because he might come down with the virus or has he?

That amount of time of quarantine to where he should be entitled do his normal, ordinary standard possession.

I mean, that's something that's going to be probably a hot button issue for a while to come.

Oh, absolutely. I'll give you another example. And this is, you know, I've I've a college age, two college age children, but my youngest is a freshman in college. And obviously in spring break, time just passed.

And, you know, luckily I had the child, too.

You know, I think I put the fear I put the fear of God in. And I was like, you're not going anywhere.

And she didn't. But there were plenty of her friends who did continue. Go to spring break. One of them was in Miami Dade area. She was out at the beach with all these friends, all these huge parties. Now, listen. She wants to come back. And, you know, her parents are divorced and one parent is like, well, you can't come because I've been remarried and I have younger children. And if I let you back in the house, which is our primary residence, then, you know, my husband, ex spouse, who's the mother of the younger children that are in the house, is saying that she'll think it's back to court. So what do you know? What are you doing that you're putting families in a situation where, like, you know, you can't let your child back in the house because instantly it's going to land you in court. But that was a risk because obviously we know now from these people getting together in the Miami-Dade area there, people coming back that are absolutely five kids from five kids and promoting the university in Florida, in Tampa right now.

As of yesterday when I read it.

Exactly. And so, you know. Yes. That you know, so you can see both sides of this argument in it. You know, judges are going to have a very difficult time. And I think that parents are going to have a difficult time. But if you can't work it out on your own, I really want everybody to know the law is still there. Lawyers are still there. You really need to contact you. But there's a lot of creative things.

And like I said, there's if you have like Sam was talking about earlier, if you have absolute life and death emergencies, don't let this prevent you from getting relief from the court. You absolutely have the right to go to the court and you actually have the right to get heard if you have a life and death issue. I mean, just because you think it might be a life and death should doesn't necessarily mean that the court thinks it's a life or death issue. So you really, really need to get the advice of a competent attorney and figure out whether that's, you know, that's an issue that you can get in front of the court on, because the court will hear you just understand that they're completely short staffed.

And but if you have an absolute life or death issue, don't let this prevent you from from getting down there, getting the relief that you need, especially if it's involving, you know, children or, you know, potential harm that might come to children. It's very important that, you know, that you understand that the legal system is still working. It may be a little bit slower, but it's still working.

Absolutely, Brian. Absolutely. Just want everybody to stay safe and we'll be out the other end of this tunnel. Hopefully someday soon we'll look back.

Yes, sir. So without anything else.

I mean, I think we'll probably come back on in the next couple of days and talk a little bit more about the situation, because as we've talked about before, we came on air. This thing is ever changing. And like I said, we've had six orders from the Supreme Court coming out in the last in the last week, you know, related to this this thing. So obviously, this is an ever changing thing and the numbers keep changing every single day. And you know, what's going on keeps changing every single day.

We've got, you know, order some places like Dallas County, a shelter in place someplace that's just, you know, we're encouraging people to.

You know, it's it's it's it's really, really tricky to navigate these waters right now.

All right, well, I appreciate your time, Sam, and we'll be back on here in the next couple of days to talk some more. But thank you so much, sir. And please, you and your family, stay safe.

Take care. Ditto, ditto.

Thank you for listening, and we hope you enjoyed the Top Texas Lawyers Podcast. If you'd like to schedule a consultation with either Bryan or Sam, please call 1-888-981-7509. Or visit us on the web at Once again, that's Thank you very much.

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