Thanksgiving and divorce parenting time

Thanksgiving divorceHoliday season always seems to sneak up on us. In the blink of an eye, you go from carving pumpkins and picking out Halloween costumes to feasting on turkey and stringing Christmas lights. Now with Thanksgiving just around the corner, the holiday rush really begins. From planning the family gatherings, grocery shopping, endless hours of cooking, and, my favorite, Christmas shopping, I am sure everyone’s to do list is overflowing. However, do not forget to make it a priority to check your divorce decree or current court order regarding holiday possession. During the holidays, the last thing a parent needs is a disagreement regarding the holiday possession.

 In Texas, holiday possession generally supersedes your regular weekly possession. The Texas Family Code provides that conservators alternate Thanksgiving possession each year, with the Thanksgiving possession beginning at 6:00 p.m. on the day your child is dismissed from school for the Thanksgiving break and ending at 6:00 p.m. on the following Sunday. Many times parents have chosen to elect the alternate periods of possession, which could mean that the Thanksgiving holiday periods of possession begin at the time the child’s school is dismissed for the Thanksgiving break. If your child’s Thanksgiving break begins on the Friday before Thanksgiving, then the parent who has the right to possession of the child for the Thanksgiving period will have possession that weekend. It is important to note this because it is easy to forget that the regular scheduled weekend possession before Thanksgiving may be superseded by the holiday possession schedule.

Additionally, many times divorce decrees and court orders have provisions that allow parents to mutually agree to possession dates and times that differ from the possession schedule provided in the order. In the spirit of the season, it is always encouraged that parents work with another on possession arrangements that ultimately serve their children’s best interest. If you come to an agreement on the holiday possession that differs from your current court order, make sure that agreement is clear to both sides. Nothing interrupts holiday cheer like a trip to the courthouse, to make possession clear. Far too many times, we see clients in a frenzy over a conflict on the breakdown of the holiday possession because they made outside agreements and now one parent is not following that agreement. Making these agreements in writing is encouraged because it reduces the likelihood of confusion and misunderstanding.

So let this Thanksgiving be one that is focused on family, while making the center of that focus your child. Remember, working out differences peacefully and amicably benefits everyone. The biggest recipient of that benefit being your child. Gobble Gobble! Happy Thanksgiving!



What can a Texas family law appeal lawyer do for my case?

appellate lawyerYes, family law appellate lawyers handle appeals to the Texas court of appeals or the Texas Supreme Court. We read records, write briefs, and make oral arguments. We research rules and analyze case opinions. But, adding an appellate lawyer to your trial team can be beneficial long before filing a notice of appeal.


Early in the case, the appellate lawyer can assist with complex pleading issues. If jurisdiction is contested, the appellate lawyer can prepare and present the plea to the jurisdiction or special appearance and get the legal issues ready for mandamus (family law cases) or interlocutory appeal (civil cases). The appellate lawyer can draft special exceptions and craft special pleadings for complex claims or defenses.

Complex Legal Issues

An appellate lawyer can be a member of the family law trial team, much the same as an expert witness or jury consultant. As a second chair lawyer in the case, the appellate lawyer can take charge of complex legal issues so the trial lawyer can focus on presenting the factual issues. For example, in a challenge to a premarital agreement, the appellate lawyer can handle the legal research and briefing on the basis for the challenge, coordinate the evidence needed to meet the elements of the claim, and draft the pleadings on the issue.

Dispositive Pre-trial Motions

Summary judgments, even if unsuccessful, can help prepare the trial lawyer to make a motion for directed verdict at trial or raise a legal sufficiency point on appeal. A no-evidence motion for summary judgment can be used strategically to either eliminate unmeritorious claims prior to trial, or at a minimum get an idea before trial of the evidence and legal theories the other side may rely upon to prove the claim. So, an appellate lawyer can be especially beneficial in preparing summary judgments prior to trial to eliminate (or defend against elimination of) some tenuous claims. In a jury trial case, the appellate lawyer can file Rule 248 motions seeking determination of the trial court’s rulings on matters of law.

Pretrial Appeals

When a party suffers a negative ruling on a pretrial matter, such as discovery, mandamus may be a viable alternative. Or, if the trial court appoints a receiver over the marital estate, interlocutory appeal will be required to avoid waiver of error. Interlocutory appeals have accelerated deadlines to watch out for. An appellate lawyer can be useful for seeking redress in the appellate courts of pretrial rulings either by mandamus or interlocutory appeal, as appropriate.


Having an appellate lawyer sit second chair at trial can ease the pressure on the trial lawyer from focusing on preservation of error issues to concentrating on presentation of the factual issues. A motion can be made at the beginning of the trial to allow the appellate lawyer to handle all objections. The appellate lawyer can draft and present motions for directed verdict, preserving error on the sufficiency of the evidence arguments for appeal. In a jury trial, the appellate lawyer can present and monitor issues pertaining to limine and jury charge. Recently, the Texas Supreme Court has moved away from broad form submission and toward granulated charge questions. Having an appellate lawyer handle the charge objections and requests for submission can ease the trial lawyer’s burden.


After trial is over, an appellate lawyer can be beneficial to ensure that requests for findings are timely filed, especially with the special deadlines for such findings in many family law cases. The appellate lawyer can handle sufficiency objections to the trial court’s ruling and proposed judgment, or objections to the jury’s verdict. Motions for new trial and other post-judgment motions are also an area of an appellate lawyer’s expertise.

Waivers of citation clarified for divorce proceedings

divorce scrabbleTexas Family Code section 6.4035 was amended to clarify the requirements of a waiver of citation for a divorce proceeding. Effective September 1, 2015, a waiver of citation in a divorce case must be signed before a notary public who is not an attorney in the lawsuit and it may not be signed by digital signature. In other words, the signature must be a traditional pen-and-ink signature.

Likewise, Texas Family Code section 102.0091 provides that a waiver of citation in a SAPCR suit affecting the parent/child relationship must be signed in front of a notary public and with an original pen-and-ink signature, not digital.  Further, a waiver of citation in a SAPCR proceeding must acknowledge receipt of a copy of the petition and provide the mailing address of the person signing.

Note that there are different rules for waivers of citation for incarcerated litigants.

To read the text of the new law, click on SB 814, 84R Texas Legislature.

Definitions of Texas family violence and abuse expanded with new law

1-in-4-women-experiences-domestic-violenceEffective September 1, 2015, the law pertaining to the definition of family violence has been expanded by the Texas Legislature. Now, the code prohibits family violence, including a person who applied for a protective order. The prior version of the law prohibited violence against the victim, but left a loophole for violence against a person who claimed to be a victim in an application for protective order but who may not, at that point, have been. Now the law includes both victims and those who apply for protective orders. The point of adding this language is to prevent retaliatory violence against a person who may apply for a protective order.

Further, the definition of abuse is expanded to include trafficking of people for prostitution, taking obscene photos or videos of a child, using drugs to cause physical, mental, or emotional injury to a child, or causing a child to use drugs. While most of these changes seem obvious and intuitive, it is interesting to wonder what actions in using drugs by a person would cause mental or emotional injury to a child.

See the language of the enrolled bill here.




Texas family law courts accept digitized signatures for parties and lawyers in certain divorce cases

Effective September 1, 2015, digitized signatures will be accepted on pleadings or orders in proceedings for divorce and protective orders. The new law provides as follows:

A digitized signature on an original petition under this title or any other pleading or order in a proceeding under this title satisfies the requirements for and imposes the duties of signatories to pleadings, motions, and other papers identified under Rule 13, Texas Rules of Civil Procedure.


Senate Bill 813, Texas Family Code section 1.109. A digitized signature is a graphic image of handwritten signature having the same legal force and effect for all purposes as handwritten signatures.

While this law does not extend to suits regarding the parent/child relationship, digitized signatures were applied to SAPCR lawsuits (SAPCR = suit affecting the parent/child relationship) in 2013.  Section 102.014 of the Texas Family Code provides for use of digitized signatures on pleadings and orders in suits regarding children under Title 5.

Digital Signatures: The Law and Best Practices for Compliance

Digital Signatures: The Law and Best Practices for Compliance

The digitized signature must be controlled by the person doing the signing. And, the person signing digitally remains subject to the rules for signing pleadings, including the rules prohibiting pleadings filed in bad faith or for the purpose of harassment.

For an interesting overview of federal and European Union law on electronic versus digitized signatures head over and look at this slideshare, Digital Signatures: The Law and Best Practices for Compliance.


Tougher reporting requirements regarding domestic violence in Texas divorces

A parent subject to a court order affecting their children in Texas has long been required to disclose if they were living with a person who had been convicted of a sexual offense. Under a new law passed this year, parents in Texas have more stringent reporting requirements. A parent must disclose to the other parent if:

  1. The parent establishes a residence with a person who is subject of a final protective order in effect when the residence is established;
  2. The parent resides with or allows unsupervised access to a child by a person who is subject of a final protective order; or,
  3. The parent is subject of a final protective order issued after the date of the conservatorship order.

The notice must be given to the other parent as soon as practicable but not later than 30 days after a parent starts residing with a person who is subject to a protective order for the first requirement, the 90th day after the date the final protective order is issued for the second requirement, or 30 days after the protective order was issued for the third requirement.

Most importantly, the failure to make this notice required by this section is a Class C misdemeanor.

This new law is effective as of 9/1/15 and applies to any suit to modify a court order rendered before that date.

See the enrolled bill language here.



Dental insurance now required in Dallas Texas child custody orders

dental ins cartoonThe Texas Legislature passed a new law adding dental insurance to the list of required insurance provisions in child custody orders in Texas, including Dallas. This expands the requirement of medical support beyond just routine health insurance. Many parents provide dental or vision insurance, but haven’t been required to do so under the law. Parents are now required to provide dental support for their children, including paying for dental insurance and paying for dental bills of children that are not covered by insurance. The interesting part of this new law is that it goes into effect September 1, 2018. This gives parents and future divorcing parents ample time to obtain dental insurance before it is required.

The law defines the terms used as follows:

“Dental insurance” means insurance coverage that provides preventive dental care and other dental services, including usual dentist services, office visits, examinations, X-rays, and emergency services, that may be provided through a single service health maintenance organization or other private or public organization.

“Dental support” means periodic payments or a lump-sum payment made under an order to cover dental expenses, including dental insurance coverage, incurred for the benefit of a child.

See the enrolled version of the new law here.


No Tricks, Just Treat – Your Children

trick or treatTrick-or-treating is a Halloween tradition in many households; a tradition where lasting memories are created between parents and their children. Children look forward to dressing up as their favorite princess or superhero, their favorite ghost or ghoul, or their favorite monster or goblin; parents look forward to ever-lasting pictures and memories.

What happens when a divorce or separation gets in the middle of Halloween fun?

Nothing, unless you let it.

This year Halloween falls on the 5th weekend of the month.  Parents who have possession of their children pursuant to a Standard Possession Order will have their children on Halloween.  After this year, Halloween will not be part of the Standard Possession Order periods of possession until Thursday, October 31, 2019.  The fact of the matter is that it should not matter whose “weekend” it is.  Do not make Halloween about whose weekend it is; make it about the children’s experiences.

Halloween is about the children. Parents should not compete when it comes to purchasing the children’s costumes; it is their costume, let them pick it.  The children get to choose their costumes; they should not have to choose which parent they will spend Halloween with.   Parents should work together to set the children’s expectations as to who they will go trick-or treating with – one parent, both parents or no parent [because they are going with their friends].

While it is understandable that it may be impractical to share all Halloween activities or go trick-or-treating together, it is not impractical for each parent to enjoy the children in their costumes.

Remember, Halloween is not a “standard” holiday found in a Standard Possession Order, and unless otherwise agreed, it typically is not in any order. With Thanksgiving and Christmas on the horizon, parents can set the tone for their co-parenting relationship through the holidays during Halloween. Parents can mutually agree to Halloween plans that may be better than any child’s favorite candy.  Parents have the opportunity to set aside the “tricks” on the other parent, and “treat” their children to a full day of Halloween fun.

New standards for child custody evaluations coming in 2016, Dallas custody lawyers are wary

custody evalEffective for cases filed on or after March 1, 2016, new standards will apply to child custody evaluations to be conducted in Texas cases involving children. The new law replaces the old term “social study” with the new term “child custody evaluation”. Now, an order for a child custody evaluation must include the name of each person who will conduct the evaluation, the purpose of the evaluation, and the specific issues or questions to be addressed in the evaluation. Further, the new law raises the minimum qualifications for a person conducting a child custody evaluation, requiring at least a master’s degree (no longer just a bachelor’s degree) or a medical license with board certification in psychiatry. Only a properly appointed child custody evaluator may make recommendations about custody. No longer may a child’s treating therapist or social worker or other mental health person involved with a child make recommendations about what parent should have custody.

The new statute defines the following terms:

“Child custody evaluation” means an evaluative process ordered by a court in a contested case through which information, opinions, recommendations, and answers to specific questions asked by the court may be: made regarding conservatorship of a child, including the terms and conditions of conservatorship; possession of or access to a child, including the terms and conditions of possession or access; and any other issue affecting the best interest of a child; and may be made to the court, the parties to the suit, the parties ’ attorneys, and any other person appointed under this chapter by the court in the suit.

Neither the term nor the statute applies to a case involving the Department of Family and Protective Services.

“Child custody evaluator” means an individual who conducts a child custody evaluation under this subchapter. The term includes a private child custody evaluator.

The court is required to hold a hearing before ordering a custody evaluation, unless the parties agree. Such evaluation may be ordered regarding the (1) condition of the circumstances of a child the subject of a suit, a party to a suit, and the residence of any person requesting conservatorship of, possession/access to a child the subject of the suit; and, (2) any issue or question relating to the suit at the request of the court before or during the evaluation process. Before ordering a custody evaluation, the court must make a specific finding that good cause has been shown for the evaluation.

Gone are the days where a child custody evaluator may have undisclosed communication with one party or attorney. Now, the evaluator must disclose any communication regarding a substantive issue between the evaluator and an attorney representing a party (but not an amicus or ad litem representing a child).

The evaluator is also required to verify factual statements made during an evaluation through independent sources. Gone are the days where an evaluator may take a party’s statements a face value and rely upon them.

In the report, the custody evaluator is required to state the basis for the evaluator’s conclusions and recommendations. If the evaluator only saw one side of the case, he or she can make no custody recommendations, but may state whether any information indicates a concern for the safety of the child, the party’s parenting skills, the party’s relationship with the child, or the mental health of the party.

The basic elements of a custody evaluation, necessary for a recommendation, include:

  1. Personal interview of each party to the suit;
  2. Interviews of each child the subject of the suit, regardless of the age of child, during a period of possession of each party to the suit but outside of the presence of the party;
  3. Observation of each child the subject of the suit in the presence of each party to the suit, including during supervised visitation, unless good cause is stated;
  4. Observation and interview of any child not the subject of the suit who lives full time in a residence that is subject of the evaluation;
  5. Information from relevant collateral sources, including review of school records; physical and mental health records of each party and each child the subject of the suit; records of Department of Family and Protective Services; criminal history information of each child, each party, and each person living with a party to the suit; any other collateral source with relevant information
  6. Evaluation of the home environment of each party seeking conservatorship or possession of a child the subject of the suit, unless the condition of the home is not in dispute;
  7. Criminal history and contact with the Department of Family and Protective Services or any law enforcement agency regarding abuse or neglect; and
  8. Assessment of the relationship between each child subject of the suit and each party seeking possession of the child.

Additional elements that may be included in the evaluation include:

  1. Balanced interviews and observations of each child the subject of the suit in the possession of each party;
  2. Interview of each individual, including a child, residing full or part-time in the residence subject to the evaluation;
  3. Home environment of each party subject of the suit, regardless of whether the home is in dispute;
  4. Observation of the child with each adult in the home subject of the evaluation;
  5. Interview and observation of each child full or part-time living in the home subject of the evaluation;
  6. Psychometric testing;
  7. Other tasks requested by the court to be performed, including a joint interview of the parties to the suit, and review of any other relevant information.

The child custody evaluator is required to keep detailed records of the actions taken and performed, including oral interviews conducted, during the evaluation.

The child custody report in a private appointment must be completed and provided to the attorneys of record at least 30 days prior to trial in the suit.; whereas, the evaluation report conducted by a domestic relations office must be provided no later than 5 days before trial.

No witness may testify to an expert opinion or recommendation regarding conservatorship or possession of a child unless he or she has conducted a child custody evaluation.

Although the act takes effect on September 1, 2015, the act only applies to suits filed on or after March 16, 2015.

Many divorce lawyers in Dallas County and across the State of Texas are wary of the hidden effects of this new law. The most certain unfortunate side effect of the more stringent requirements for child custody evaluations will be to increase the costs of litigation regarding a child custody matter. No longer will the child’s treating therapist or physician, people with extensive relationships with the child, be able to express opinions about the schedule that is best for the child, or make other observations that touch on conservatorship and possession. Those recommendations will now be made by a third-party neutral person, stranger to the child, who has had limited contact and access to the child. Such person will have to extensively research each factual statement by each party, conduct countless hours of interviews, home visits, records reviews, and other investigative activities to gain a glimpse into the life of a child that others have been working to establish for years. The logical consequence of these requirements will be that parties to a custody lawsuit will be forced to spend a lot of money to have custody evaluations completed in order to have a person make recommendations to a court about the outcome. In many situations, it may be easier and more cost effective to have a trial to the judge and present all such evidence one time to the judge and let the judge be the decision-maker he or she was elected to be.

See the full text of the enrolled version of the law here.

Standard divorce orders coming into 21st century

cartoon troA new law effective 9/1/15 expands the scope of prohibited actions that may be contained in a temporary restraining order granted during a Texas divorce proceeding. The laundry list of prohibited actions comes further into the 21st century, prohibiting parties from communicating and threatening each other via electronic voice transmission, video chat, or electronic messaging such as email, social media, etc. The definition of property now includes intellectual property and electronically stored or recorded information.

Once a divorce is filed and these orders are put in place, divorcing parties are prohibited from cussing each other out in email, opening the other spouse’s email and reading it, forwarding the other spouse’s email to anyone, deleting any email or other electronic evidence, using the password of the other spouse to access any electronic information, and/or deleting anything off of social media.

So, here is the laundry list of standard divorce orders effective 9/1/15. Many counties, including Dallas County divorce proceedings, will incorporate this list into a Standing Order that will apply mutually to all parties upon the filing of a divorce.

(1) intentionally communicating in person or in any other manner, including by telephone or another electronic voice transmission, video chat, in writing, or electronic messaging, with the other party by use of vulgar, profane, obscene, or indecent language or in a coarse or offensive manner, with intent to annoy or alarm the other party;

(2) threatening the other party in person or in any other manner, including by telephone or another electronic voice transmission, video chat, in writing, or electronic messaging, to take unlawful action against any person, intending by this action to annoy or alarm the other party;

(3) placing a telephone call, anonymously, at an unreasonable hour, in an offensive and repetitious manner, or without a legitimate purpose of communication with the intent to annoy or alarm the other party;

(4) intentionally, knowingly, or recklessly causing bodily injury to the other party or to a child of either party;

(5) threatening the other party or a child of either party with imminent bodily injury;

(6) intentionally, knowingly, or recklessly destroying, removing, concealing, encumbering, transferring, or otherwise harming or reducing the value of the property of the parties or either party with intent to obstruct the authority of the court to order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage;

(7) intentionally falsifying a writing or record, including an electronic record, relating to the property of either party;

(8) intentionally misrepresenting or refusing to disclose to the other party or to the court, on proper request, the existence, amount, or location of any tangible or intellectual property of the parties or either party, including electronically stored or recorded information;

(9) intentionally or knowingly damaging or destroying the tangible or intellectual property of the parties or either party, including electronically stored or recorded information;

(10) intentionally or knowingly tampering with the tangible or intellectual property of the parties or either party, including electronically stored or recorded information, and causing pecuniary loss or substantial inconvenience to the other party;

(11) except as specifically authorized by the court:

(A) selling, transferring, assigning, mortgaging, encumbering, or in any other manner alienating any of the property of the parties or either party, regardless of whether the property is:

(i) personal property, real property, or intellectual property; or

(ii) separate or community property;

(B) incurring any debt, other than legal expenses in connection with the suit for dissolution of marriage;

(C) withdrawing money from any checking or savings account in a financial institution for any purpose;

(D) spending any money in either party’s possession or subject to either party’s control for any purpose;

(E) withdrawing or borrowing money in any manner for any purpose from a retirement, profit sharing, pension, death, or other employee benefit plan, employee savings plan, individual retirement account, or Keogh account of either party; or

(F) withdrawing or borrowing in any manner all or any part of the cash surrender value of a life insurance policy on the life of either party or a child of the parties;

(12) entering any safe deposit box in the name of or subject to the control of the parties or either party, whether individually or jointly with others;

(13) changing or in any manner altering the beneficiary designation on any life insurance policy on the life of either party or a child of the parties;

(14) canceling, altering, failing to renew or pay premiums on, or in any manner affecting the level of coverage that existed at the time the suit was filed of, any life, casualty, automobile, or health insurance policy insuring the parties’ property or persons, including a child of the parties;

(15) opening or diverting mail or e-mail or any other electronic communication addressed to the other party;

(16) signing or endorsing the other party’s name on any negotiable instrument, check, or draft, including a tax refund, insurance payment, and dividend, or attempting to negotiate any negotiable instrument payable to the other party without the personal signature of the other party;

(17) taking any action to terminate or limit credit or charge credit cards in the name of the other party;

(18) discontinuing or reducing the withholding for federal income taxes from either party’s wages or salary;

(19) destroying, disposing of, or altering any financial records of the parties, including a canceled check, deposit slip, and other records from a financial institution, a record of credit purchases or cash advances, a tax return, and a financial statement;

(20) destroying, disposing of, or altering any e-mail, text message, video message, or chat message or other electronic data or electronically stored information relevant to the subject matter of the suit for dissolution of marriage, regardless of whether the information is stored on a hard drive, in a removable storage device, in cloud storage, or in another electronic storage medium;

(21) modifying, changing, or altering the native format or metadata of any electronic data or electronically stored information relevant to the subject matter of the suit for dissolution of marriage, regardless of whether the information is stored on a hard drive, in a removable storage device, in cloud storage, or in another electronic storage medium;

(22) deleting any data or content from any social network profile used or created by either party or a child of the parties;

(23) using any password or personal identification number to gain access to the other party’s e-mail account, bank account, social media account, or any other electronic account;

(24) terminating or in any manner affecting the service of water, electricity, gas, telephone, cable television, or any other contractual service, including security, pest control, landscaping, or yard maintenance at the residence of either party, or in any manner attempting to withdraw any deposit paid in connection with any of those services;

(25) excluding the other party from the use and enjoyment of a specifically identified residence of the other party; or

(26) entering, operating, or exercising control over a motor vehicle in the possession of the other party.

See enrolled version of the bill here.