The Push for Father’s Equality

Scales-of-Justice-Equal-Parenting-writing-smallThere is a bill pending before the Texas Legislature right now to create a presumption of equality between mothers and fathers in spending parenting time with their children after they separate. (2017 TX HB453) Other states have passed similar legislation in recent years.

For many years, there was a legal presumption that favored mothers to have custody of children after separation or divorce. That legal presumption was eliminated in 1974, leaving mothers and fathers on the same footing in the eyes of the law.

(Act of Jan. 1, 1974, 63d Leg., R.S. ch. 543, § 1, 1973 Tex. Gen. Laws 1413, repealed by Act of Apr. 6, 1995, 74th Leg., R.S. ch. 20, § 2, 1995 Tex. Gen. Laws 282, which required a court to disregard the sex of either parent in deciding custody.)

(See No Mommy Presumption for Custody in Texas.)

But, the law still presumes that one parent will be the primary parent, having the children the majority of the time. The other parent would have time with the children according to a standard schedule set out by the Texas Legislature – every other weekend, time during the summer and split of holidays. Even without a presumption in favor of mothers, most of the time, mothers are given the primary designation in Texas with fathers getting the standard weekend schedule.

For many fathers, that is not equal enough under the law.

Texas law does not have a provision for equal time shared between parents. Some judges will consider granting such a schedule in certain situations, but many others want. Some judges have a stated policy that an equal time schedule will never be considered, no matter the particular situation presented. That is the problem that 2017 House Bill 453 aims to prevent.

The Equal Parenting Orders bill was filed in November by state Rep. James White, R-Woodville. A similar bill died in the Texas House of Representatives two years ago.

The Texas Family Law Foundation, a trade group made up of Texas family lawyers, opposed the 2015 version of the bill. See reference here.

A father’s rights group will rally at the Capitol in Austin in support of HB 453 on March 13 starting at 8:30 a.m.

See prior article The trend of shared parenting laws http://www.dallastxdivorce.com/2016/09/articles/children-and-parenting/possession-scheduleparenting-times/the-trend-of-shared-parenting-laws/

See Heinkel-Wolfe, Peggy, Dad joins push for custody reform, Denton Record-Chronicle, February 11, 2017, http://www.dentonrc.com/local-news/local-news-headlines/20170211-dad-joins-push-for-custody-reform.ece

Can I sue my spouse for intentionally harming me or my property?

In civil law, a wrong done by one person against another that could result in legal liability is called a tort. Generally the actor must have owed a duty to the victim of the tort to not harm the person, violated that duty which caused the victim harm. The remedy for a tort is monetary damages.

So, can a spouse commit a tort against another spouse? The answer in Texas is yes. In 1987, the Texas Supreme Court permitted interspousal lawsuits for tort causes of action. Price v. Price, 732 S.W.2d 316 (Tex. 1987). Tort actions can include physical assault or injury, but can also include emotional damage or even property damage. The main challenge with maintaining an interspousal tort suit in the context of divorce is finding a source of funds from which to pay damages. The cost of pursing a tort claim can be greatly outweighed if no source of funds exists from which to fund damages.

Here’s a list of domestic torts from the Fall 2016 issue of the ABA’s Family Advocate article Civil Relief for Uncivil Behavior:

Intentional Torts

  1. Physical assault
  2. Nonphysical assault
  3. Sexual assault
  4. Marital rape
  5. Involuntary deviate sexual intercourse
  6. Intentional transmission of a veneral disease
  7. Intentional infliction of emotional distress
  8. Physical stalking
  9. Cyberstalking
  10. False arrest and imprisonment
  11. False imprisonments
  12. Defamation: libel and slander
  13. Battered spouse syndrome
  14. Deceit and fraudulent misrepresentation
  15. Child abuse
  16. Child molestation
  17. Interference with parent-child relationship
  18. Kidnapping, child-snatching, and abductin
  19. Child enticement and harboring
  20. Invasion of privacy
  21. Wiretapping
  22. Eavesdropping and visual prying
  23. Surveillance by shadowing
  24. Public disclosure of private facts
  25. Alienation of affections
  26. Interference with family relationship
  27. Interference with marital relationship
  28. Criminal conversation
  29. Seduction
  30. Breach of promise to marry
  31. Fraudulent inducement to marry
  32. Fraudulent inducement to cohabit
  33. Fraudulent inducement to continue marital relationship
  34. Fraudulent inducement to procure settlement agreement
  35. Fraudulent inducement to admit paternity
  36. Fraudulent promise to impregnate
  37. Fraudulent misrepresentation of birth control practice
  38. Malicious prosecution
  39. Abuse of process
  40. Vexatious litigation
  41. Intentional spoliation of evidence
  42. Breach of fiduciary duty
  43. Fraudulent conveyance
  44. Unjust enrichment
  45. Conversion
  46. Third-party transmission of sexual disease
  47. Intentional interference with custodial rights
  48. Failure to report evidence of child abuse
  49. Incest
  50. Abuse of sexual contact
  51. Sexual exploitation
  52. Female genital mutilation
  53. Blackmail
  54. Extortion
  55. Wrongful death
  56. Professional malpractice
  57. International child abduction
  58. Interference with parent-child relationship
  59. Harassment
  60. Molestation
  61. Violation of a criminal statute
  62. Aiding and abetting tortious conduct
  63. Intentional enlistment of a public safety officer

Electronic Torts

  1. Invasion of privace: intrusion upon seclusion
  2. Invasion of privacy: public disclosure of pirvate facts
  3. Wiretapping
  4. Interception of emails
  5. Accessing stored emails
  6. Video surveillance
  7. Non-videosurveillance
  8. Cell phone wiretapping
  9. Extension phones
  10. Vicarious consent doctrine
  11. Privacy at home
  12. Privacy at work
  13. Privacy in public (eavesdropping)
  14. Discarded trash
  15. Breachofcomputer security
  16. Pen register/trap-an-trace device
  17. Unlawful access of stored communications
  18. Illegal divulgence
  19. Unlawful installation of a tracking device
  20. Stalking, electronig and cyber

Property Torts

  1. Trespass to land
  2. Trespass to chattels
  3. Conversion
  4. Detinue
  5. Replevin
  6. Trover

Dignitary Torts

  1. Defamation
  2. Libel
  3. Slander
  4. Invasion of privacy
  5. Breach of confidence
  6. False light
  7. Publication of private facts
  8. Abuse of process
  9. Malicious prosecution
  10. Alienation of affections

Economic Torts

  1. Fraud
  2. Tortious interference
  3. Conspiracy
  4. Restraint of trade

Nuisance Torts

  1. Private nuisance
  2. Public nuisance

Negligence Torts

  1. General negligence
  2. Negligence per se
  3. Negligent entrustment
  4. Negligent handling of animals
  5. Negligent hiring
  6. Negligent infliction of emotional distress
  7. Negligent misrepresentation

Duty to Visitor Torts

  1. Attractive nuisance
  2. Trespasser
  3. Licensee
  4. Invitee

Strict Liability Torts

  1. Strict liability
  2. Ultrahazardous activity

 

Beware of fake text message evidence

fake textThe hashtag #altfacts has become popular recently after a Trump spokeswoman offered “alternative facts” to a news report. Many assert the alternative facts are, actually, falsehoods.

Texas divorce lawyers face “alternative facts” frequently. Sometimes, people interpret a situation differently, making the alternative facts more about their perception, not factual falsities. On the other hand, facts that are verifiable and not subject to interpretation may lend to alternative versions being actually false.

One situation that has arisen in divorce cases across the country involve cell phone apps that create fake text messages or other forms of fake electronic communications. Once you select an app that specializes in fake text messages, it is as simple as entering the cell number to send the text to, create the content of the message and hit send.

Fake texts hit the news recently in the Johnny Depp v. Amber Heard divorce. Heard alleged that Depp’s assistant sent her test messages detailing Depp’s remorse for abusing her. However, Depp’s personal assistant claims that the texts were “doctored” and that he never sent them. The police declined to file charges against Depp, citing no physical signs of abuse were observed on the night she made the claims. (See Johnny Depp and Amber Heard divorce update: police find no evidence of assault, abuse text messages ‘heavily doctored’?)

Another case in California resulted in criminal charges being filed against a party stemming from her creation of fake emails to use as evidence in a custody case. Father’s new wife sent herself abusive emails which appeared to come from the Mother, expressing anger at the new wife about the child. The emails were used in the custody case to support Father’s opposition of Mother’s request for additional time with the child. After Mother lost her custody case, she hired an investigator who discovered the falsity of the emails and linked them to an IP address belonging to the new wife. The new wife was charged criminally under a California statute that made it a crime to prepare a false document with the intent to produce it in a judicial proceeding with fraudulent or deceitful purpose. The new wife was convicted. (see California appeals court upholds conviction for fake e-mails)

This isn’t the only case of a criminal conviction for fake messages. Another woman in California was sentenced to a year in jail after being convicted of sending hundreds of threatening text messages to herself in an attempt to get her former boyfriend arrested by blaming him as authoring the messages. The woman filed a report with the police following her breakup. In fact, the police discovered that the woman used a pre-paid cell phone she purchased in the boyfriend’s name to send herself the texts. (see Woman jailed for texting threats to herself)

Using text messages in court requires proof of a strenuous predicate. First, the texts must be preserved as evidence by taking screen shots or finding another method of saving the entire conversation to be admitted at trial.

The biggest hurdle for using texts as evidence is to authenticate  the source of the message – for the judge to determine whether the texts were genuinely written, sent, or received by the parties and that they contain the full conversation. Texts can be authenticated by the other party admitting they are genuine, a witness who saw the message created or sent, circumstantial proof like from telephone company records, or “reply authentication” where a reply text is deemed authentic because it’s clearly in response to the message sent.

Lastly, text message evidence must overcome a hearsay objection as being out of court statements offered in court for the truth of the statement – which are inadmissible. A hearsay text can only come in as evidence if they fit in an exception – such as a statement by a party to the suit.

Other hurdles to admissibility of text messages in court may also include relevance, best evidence, and prejudice.

Because it is so easy to fake text messages and other types of electronic communications, courts should be extremely wary of allowing such evidence at trial and relying on it exclusively for substantive decisions in family law matters. Further, lawyers should be cautious about using such communications as probative of the requested relief to avoid propounding false evidence in court. At a minimum, allegations made where electronic communications are to be used as supportive evidence should have alternative methods of proof as well.

Should you change your name in your divorce?

mynameYou’ve been known as “Mrs. So-and-so” for a long time during your marriage. You went by a different name prior to your marriage. Who should you be after your divorce?

Many women see their married name as a tie to the man they want to be done with, so they want to be rid of the name when they are rid of the man. Many ex-husband’s want their name back, as if it is a possession, because of the bad feelings from the divorce.

Many women want to keep the same name as their children because it is easier when dealing with schools and travelling. Also, many women build up a professional reputation during the marriage using the married name, which they want to keep after the divorce.

The bottom line is that the choice to change the name or keep the married name is the woman’s choice alone.  The husband has zero say in which choice she makes. Each woman may have her own good reasons why she makes her choice.

 

See related article: The Name Game

Divorce filings surge in January

january-Divorce-300x150As people make new year’s resolutions to start their new year with a clean slate, some of the best Dallas, Texas family lawyers, as well as family law attorneys across the United States, report a rise of nearly one-third of new divorce filings in January. The American Academy of Matrimonial Lawyers confirms a spike of 25-30% according to a survey of their members. New year’s resolutions are spurred on by a stressful holiday season and maybe even the stress of too much family time. Similar trends are seen in the U.K., where one survey reports that one in five couples plan to divorce after the holidays.

If you are planning to divorce in the new year, one of the most important self-help steps you can take is to become familiar with the financial situation of your marriage. Get an up-to-date assessment of all of the financial accounts owned together or separately. Keeping copies of records given to the CPA when preparing taxes can also provide fertile areas for inspection to make sure that all financial information is addressed in the divorce.

Because divorce is one of the biggest financial decision people make, it is important not to make the decision when you are tired or emotional. Be smart and evaluate your end game – make sure you know the full situation and the consequences from a financial perspective of the decisions you are about to make.

Sometimes, even though the emotional situation of a marriage may be troublesome, divorce may not be the best answer. Frequently one spouse carries the health insurance, which will no longer be available to the other spouse after divorce. For a spouse who needs the health insurance and is not able to affordably get an individual policy, this can be a crucial decision factor.

See related article Divorce lawyers: 30% more couples terminate their marriage in January from marketwatch.com

How to co-parent with an unreasonable ex

familyIf you and your ex could get along perfectly well, you probably wouldn’t have needed a divorce in the first place. But once the divorce is over being able to co-parent with your ex is crucial to moving forward for you and your children. What happens if your ex is unreasonable or vindictive and you just can’t get along?

Here are some strategies for co-parenting in less than ideal relationships:

  1. Avoid using the children as tools for revenge – sometimes parents, maybe even without realizing it, withhold the other parent’s access to the child out of anger about the personal relationship. This is always a bad idea. The children usually know the real deal, so it is just making the bad actor parent look even worse to the children. In responding to the revenge parenting, it is best to respond with a positive attitude at all times, even go to the extreme in exuding positivity. For example, if one parent feigns a child’s illness to withhold access, reply “Thank you for letting me know so I can be prepared. I will have soup ready at home when we get there.”
  2. Don’t give the other parent ammunition – Be reliable, be on time, and bite your tongue. Don’t speak negatively in front of the children or to the children about your ex. If switching schedules triggers conflict, then do everything you can do stick to the written schedule without changes.
  3. Don’t use the children as messengers – as much as you don’t want to have direct communication with your ex that might lead to conflict, don’t put your children in that position either. Keep adult conversations between the adults.
  4. Consider using a third party to facilitate communication – If communication with your ex is impossible, try getting a family member or friend to run interference. Or ask your attorney to have a Parent Facilitator appointed to be the go between for communication about important issues.
  5. Reduce direct contact with your ex – Once your custody orders are in place, there should be very little need for direct communication with your ex unless there is a problem with the children. The custody orders spell out the details of who has the children when. If there’s a need for doctor visit or exchange of medicine, that communication can occur via text or email. And, stay on point. A program/app called Our Family Wizard is a good way to keep a record of all communication between you in a format that can easily be read by a judge or parent facilitator as well.

Proposed law will set back women’s rights 40 years

Divorce-rate2A state legislator from Fort Worth wants to make it harder to get a divorce in Texas. Rep. Matt Krause, R-Fort Worth, has filed a bill for the legislative session starting in January, proposing to require a party to state a fault reason for divorce or to remain separated for at least three years before finalizing the divorce. (See Lawmaker wants unhappy couples to live apart for 3 years before they can divorce http://www.star-telegram.com/news/nation-world/national/article124180949.html#storylink=cpy) Currently, Texas law allows parties to divorce on the grounds of insupportability — a no-fault finding — with only a 60 day waiting period. If the new law is passed, parties would have to say a reason for the divorce as opposed to a general statement that the parties relationship is irreconcilable. Or, to divorce on grounds of insupportability, they would have to separate for minimum of three years. Kraus thinks it should be more difficult to get a divorce and that the new law will strengthened the sanctity of marriage.

I seriously doubt that this law will pass. No-fault divorce has been in place since the 1970’s (when Texas’ family law code was created) and many people, including many of the currently serving state legislators, have divorced under the law. Instead of litigating over the question of which party caused the divorce, most parties currently just agree to irreconcilable differences and get on with the more important issues of parenting time and division of property.

If this law were to pass, I think it would have two unintended consequences. First, I think it would serve to raise the contentiousness of most divorces, raising the cost of an already expensive process. Second, it would have a chilling effect on many victims of domestic violence escaping their abusers.

In reference to the elimination of fault requirements in New York in 2010, Betsy Stephenson, an economist at the University of Pennsylvania who studies divorce, believes that no-fault divorce benefits women, particularly domestic violence victims. No-fault divorce laws lead to a 30% decrease in domestic violence because it makes it easier for the victim to escape their marriages. It also makes the abuser less likely to act because they are aware that their spouses would leave them. No-fault divorce also makes women less likely to commit suicide, says Stephenson. (See No Fault Divorce: good for women http://www.salon.com/2010/06/17/no_fault_divorce_new_york/ )

Some opponents of fault-divorce claim that no-fault divorce raises the likelihood of divorce and harms the sanctity of marriage. Quite the opposite, according to statistics. Actually, divorce rates began to rise in the 1950’s and peaked in the early 1980’s, all when fault-based divorce was still the majority. In the 1970’s to the present, as all states in the U.S. transitioned to no-fault divorce, the divorce rates have decreased. (Discussion at Religion News Service http://religionnews.com/2013/04/24/what-hath-ssm-to-do/ ).

If Texas were to pass this women-unfriendly bill, it would be the only state in the U.S. to require a fault finding to get divorce, setting back women’s rights by at least 40 years. (See http://family.findlaw.com/divorce/an-overview-of-no-fault-and-fault-divorce-law.html)

Best Interest of the child standard in Texas family law cases

The best interest of the child is the overarching factor in deciding Texas family law custody cases. The specifics of how a judge should approach examining the best interest of the child was first set out by the Texas Supreme Court in 1976 in the case of Holley v. Adams. The non-exclusive list of factors from that case include:

(1) the desires of the child;

(2) the emotional and physical needs of the child now and in the future;

(3) the emotional and physical danger to the child now and in the future;

(4) the parental abilities of the individuals seeking custody;

(5) the programs available to assist these individuals to promote the best interest of the child;

(6) the plans for the child by these individuals or by the agency seeking custody;

(7) the stability of the home or proposed placement;

(8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and

(9) any excuse for the acts or omissions of the parent.

Holley v. Adams, 54 S.W.2d 367 (Tex. 1976).

In an article from the December edition of the Texas Bar Journal, Judge Donald Dowd of Cass County cites to a publication by the American Bar Association – A Judge’s Guide: Making Child-Centered Decisions in Custody Cases for a list of some questions that an attorney can ask a client based on the age and development of the child to establish the best interest of the child.

Infant (birth to 18 months)

  1. How can the parent respond to the child’s needs in eating, sleeping, and bathing?
  2. Is the parent aware of things that could endanger an infant?
  3. Has the parent shown capability in supplying basic needs?
  4. How is a parent’s physical and psychological health?
  5. Does a parent have a substance abuse issue or medical problem? If so, has the issue been addressed?

Toddler (18 months to 5 years)

  1. What kinds of learning opportunities does the parent create for the child to master both physical and mental tasks, including language development?
  2. lf the parent is working, are day care arrangements carefully selected and monitored to ensure that a safe and stimulating environment is provided for the child?
  3. Does the parent provide sufficient opportunities for the child to socialize with other children and supervise these activities in order to ensure safety?
  4. Does the parent set expectations and rules that promote self-control and safety?
  5. How does each parent support the child’s relationship with the other parent?

Early Elementary School-Aged Child (5 to 7 years)

  1. How is the parent involved in the child’s community, school, and religious activities?
  2. Does the parent provide the child with time and a place to do homework, as well as provide assistance when needed?
  3. Does the parent communicate with teachers, coaches, and leaders?
  4. How does the parent handle academic difficulties that may require assessment, intervention, financial resources, and individual help?
  5. Knowing a child of this age experiences loyalty conflicts, does the parent assure the child of a loving relationship with the other parent?

Older Elementary School-Aged Child (8 to 10 years)

  1. How does the parent encourage the child’s need for productivity and self-reliance by supporting and facilitating involvement in activities?
  2. Does the parent seem to recognize the importance of peer friendships and foster these relationships?
  3. Is the parent aware of the child’s academic progress, mastery of material, completion of homework, and any behavioral difficulties in school?
  4. How does the parent minimize loyalty conflicts or prevent the child from feeling compelled to take sides?
  5. Does the parent avoid dwelling on financial or legal concerns with the child or within the child’s earshot?

Middle School-Aged Child (11 to 13 years)

  1. Is the parent able to contain hostility and negative discussion about the separation in the presence of the child?
  2. Does the parent recognize the younger adolescent’s sensitivity to criticism at this stage of self-doubt?
  3. How flexible and supportive is the parent of peer relationships and activities?
  4. How does the parent help the child remain organized and have a predictable study area and time, particularly between households?
  5. Does the parent know the younger adolescent’s friends and their parents?

Adolescent or High School-Aged Child (14 to 18 years)

  1. Does the parent support the adolescent’s participation in age appropriate activities, including financial, transportation, and psychological support?
  2. Does the parent attend events that the adolescent wants the parent to attend?
  3. How well informed is the parent of the adolescent’s school attendance, standardized and special testing, and history of report cards?
  4. Does the parent help the adolescent evaluate and assess decisions about the adolescent’s future and help the child plan financially?
  5. How does the parent discuss sexuality, healthy relationships, and other factors that may impact the adolescent, such as substance abuse, sexually transmitted diseases, and gangs?

Depending upon the age of the child, the attorney who gives the judge the answers to these questions in close cases such as these may give the client the slight edge needed to win the case.

New TV Show Divorce with Sarah Jessica Parker

Divorce TV showHave you seen the previews of the new television show Divorce with Sarah Jessica Parker coming soon to HBO? Here’s how one website describes the show: “Taking a hard look at love and marriage through a darkly comedic lens, Divorce is raw and uncomfortable at times… but it’s also one of the best new comedies of the year.”

Parker stars as Frances, a suburban wife and mother  of two teenagers,who finds herself increasingly irritated with everything her husband Robert (Thomas Haden Church) does. The way he hums along with Coldplay in the car. The way he repeats funny lines on TV instead of laughing at them. His mustache. And when their married friends Diane (Molly Shannon) and Nick (Tracy Letts) have a very public spat during a birthday party, that spurs Frances to make a decision that’s been years in the making: She wants a divorce. They proceed through a bitter, contested divorce.

Apparently, the storyline also has an element of class commentary with Frances and Robert clearly upper-middle-class. He’s a contractor and she’s an executive recruiter opening an art gallery, living in and idyllic, snow-covered neighborhood in upstate New York lined with beautiful homes. Insightfully, at one point, Frances asks in the aftermath of Diane and Nick’s fight, “How do you go from eight years of a happy marriage to wanting to blow someone’s head off?”

It will be interesting to see whether people are interested in watching other people go through a divorce. Most of the people that I know who go through it don’t want to relive it themselves or through the eyes of others. But maybe the writers and stars can make it relevant and not too depressing to make people want to watch it.

Divorce premieres on HBO on October 9th at 9:00 p.m. Here’s the link to the Divorce trailer.

What is adultery in Texas?

Adultery

Adultery in a Texas divorce

This is another in my Super Simple FAQs series…

What is adultery in Texas?

Adultery is a legal term in Texas that means the voluntary sexual intercourse of a married person with one not the spouse. Texas Family Code § 6.003. Adultery does not have to occur pre-separation for it to be a ground for granting a divorce. In re Marriage of C.A.S. and D.P.S., 405 S.W.3d 373 (Tex. App. Dallas 2013). Even if a relationship with another person begun only after the separation of the spouses, that person may be found to have committed adultery.

Keep in mind that in Texas adultery requires sexual intercourse. Certain sexual encounters that are not specifically intercourse are not legally considered adultery. This marks the distinction between the legal term adultery versus the terms infidelity, cheating, or such. Exchanging sexually charged emails, photos, or texts with another person will not be adultery. Kissing, groping, petting, or even oral sex is not considered legally adultery.

And, adultery does not have to be prior to the separation of the parties, but can include relationships after separation but prior to divorce. In Texas, remember, you are married until you are divorced; there is no legal separation in Texas.

Adultery can cause a divorce to be granted in favor of one spouse or another, as opposed to being granted on no-fault grounds. Determining one party’s fault in the break-up of he marriage can then be used to support a disproportionate division of the community property between the parties. An adultery finding in Texas will not make a spouse eligible for alimony or spousal maintenance. An adultery finding alone will not change the outcome of child custody or conservatorship provisions either. As one judge put it, committing adultery may make you a bad spouse and give a reason for divorce, but it does not necessarily make you a bad parent.

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