What do I do if there is a legal emergency regarding my children during Covid-19?
In this uncertain time, emergencies in child custody cases may be even more likely to arise than usual. There is much confusion over “shelter-in-place” orders, what qualifies as “essential actions” and the possession schedules in light of the closure of many schools. Consequently, you may run into a situation where your children are not returned to you as required or are not being protected properly.
Many counties throughout Texas have tried to address these issues with Emergency Standing Orders. Please see below links for the full text of each of these orders. However, there are still instances in which parents are not returning children to the other parent, and/or exercising dangerously poor judgment in protecting the children during this health crisis.
Because many courts are still hearing cases involving emergencies, your application for a temporary restraining order can still be heard. Not all of a parent’s actions or poor judgment will rise to the level of an emergency. However, denying the other parent possession of the children or defying shelter in place orders with the children would likely be considered emergencies and the court will address these issues.
In addition, the courts are still considering the best interest of the children in their rulings during this health crisis. This means that the courts can consider how parents are responding to this pandemic, including whether they are following orders issued by their local governments, whether they are ensuring that their children are practicing social distancing, whether they are following the distance learning curriculum if the children’s school has put one in place, etc.
During a divorce or child custody suit, a party can request the court to provide an emergency order to address concerns for the protection of children without holding a hearing. This request is made by filing an Emergency Ex Parte Application for a Temporary Restraining Order (“Application”). The Texas Family Code lays out the process by which this extraordinary relief may be granted. The first step is that a lawsuit must be filed before or with the Application. A judge’s hands are tied to help a party in an emergency until a lawsuit is filed.
An attorney must then draft an application for a temporary restraining order and an affidavit must be attached. Your affidavit should include specific facts that support your contention that the children’s safety and welfare will be significantly impaired if the court does not grant the application. Your affidavit must also state facts showing that immediate and irreparable injury will result before notice can be served on the other parent and a hearing can be held.
The next step is to review the local rules. For example,in Dallas County, that means the dedicated “Local Rules of the Family Courts of Dallas County.” (The Local Rules of The Civil Courts of Dallas County do not apply to family law cases.) In surrounding counties that may mean the general local rules or a section within those rules that are specific to family law cases.
Most counties have very specific local rules regarding the request for ex parte relief. Some counties require that notice is provided to the opposing counsel, or even an unrepresented opposing party, with a certain amount of notice prior to presenting an application to the Court. Attorneys who do not comply with these technical rules are turned away, so one must read and adhere to these rules. Most counties require that you include a certificate on your Application certifying that you followed the applicable local rules.
Once the court reviews the Application it will determine if it will grant it. If it does, it will set a hearing within fourteen days to review whether the Temporary Restraining Order shall be continued. This can be reset for another fourteen days under particular circumstances. If the Application is denied, oftentimes a Temporary Orders hearing can be set in an expedited fashion. In this current climate, be prepared to have to present the facts to the court via videoconferencing or telephone.
We encourage you to speak to your co-parent and try to resolve any issues before you seek court intervention. However, if your co-parent is withholding the children or putting them at risk, we can help you resolve these issues so that your children are safe.
About the author
Marianne Howland, a partner at Duffee + Eitzen, has been practicing family law for over ten years. She graduated from Texas A&M University School of Law in 2006. Since graduating, she has handled cases ranging the entire spectrum of family law from adoptions, custody battles, pre and post-nuptial agreements, to divorces and post-divorce modifications and enforcement. She is very comfortable in the courtroom litigating her client’s case. However, she encourages clients to settle their issues amicably when possible. Prior to joining Duffee + Eitzen, she had her own law practice for 10 years.
She has two small children and has personally been through a divorce. She brings these experiences to every case and has compassion and knowledge that assists her in her representation of each of her clients. This experience allows her to give her clients the kind of attention and advocacy they deserve. She can be reached at firstname.lastname@example.org