With society shutting down, social distancing in effect, and courthouses closed throughout the state, people are wondering: what happens to divorces and child custody disputes in the state of Texas during times of crisis? Are all disputes paused until further notice? Not at all. Family law litigation is the most important litigation at the courthouse, and even amidst this crisis, families still need resolutions, particularly in situations involving child custody and family violence.
Due to the COVID-19 outbreak, Texas courts will remain physically closed for all “non-essential” hearings. “Essential” hearings involve emergencies such as family violence, child abduction, or incarceration. For all other matters, there are four options available:
- Trial by Special Judge
- Electronic Hearing
Mediation is a voluntary process through which parties attempt to resolve their disputes by agreement. Traditionally, parties mediate by appearing at a mediator’s office, but many mediators are offering to conduct mediations electronically during the coronavirus crisis. If the parties can agree, they sign a binding, irrevocable agreement that resolves the disputes. That agreement then becomes a court order to be signed by the judge. More information about mediation can be found here.
Unfortunately, mediators cannot make a decision for the parties. If the parties cannot agree, the case remains unresolved, and the parties need to seek other means of resolution.
Arbitration is a binding dispute-resolution process that takes place outside the courthouse. In this process, the parties agree that an individual (typically either a retired judge or a family law specialist), will decide the dispute with a binding award. Although arbitration usually takes place at the arbitrator’s office, many arbitrators now offer electronic arbitrations.
In arbitration, the parties present their evidence and arguments to an arbitrator, who then makes an award that is binding on the parties. Except in very rare circumstances, a court will then render judgment on the award, and the dispute is resolved.
Arbitration awards are not subject to appeal (except in circumstances in which the losing party can show bias or that the arbitrator acted outside his/her authority), even if the arbitrator does not correctly apply the law or makes a wrong decision. Because of this shortcoming, many litigants prefer trial by special judge over arbitration.
Trial by Special Judge
Trial by special judge (also called a “private judge”) is a process that blends arbitration with traditional courthouse proceedings. These trials take place before a retired judge, proceed just like a courthouse trial, and are subject to appeal. Unlike in a conventional trial, the judge presiding is a retired judge hired by the parties, and the trial is typically held at the special judge’s office or another agreed-upon location. Just like mediators and arbitrators, many special judges now offer electronic hearings. At the conclusion of the trial, the judge issues a ruling just like a judge at the courthouse would. The order is final and appealable.
Finally, if parties cannot resolve their case by agreement or they cannot agree to submit the dispute to an arbitrator or a mediator, a growing number of district and county courts are conducting hearings electronically. Electronic hearings can be held if the parties agree, and the court approves. At the moment, these hearings are mostly limited to situations in which the parties agree not to create a record, but as this crisis worsens, many judges are allowing contested and evidentiary hearings to occur electronically.
Safety—both from infection and from family turmoil—is vital. The coronavirus is a global crisis that we have not seen in our lifetime, but we adapt, and the practice of family law is no different. We will continue to operate so families get the attention and resolution they need.
Both Brian and Jake have extensive experience presenting with each of the options stated above. Walters Gilbreath, PLLC has always been at the forefront of innovation and technology. We’re a paperless, cloud-centered firm ready to continue to serve our clients in whatever way necessary under whatever circumstances we face.