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What You Post on Facebook Can Harm your Dallas Divorce case!

According to www.insidefacebook.com, Facebook is growing in every age/gender demographic, with the fastest growing segment: Women over 55, up 175.3% in the last 120 days (as of February 2, 2009).  Read the post here.  While the fastest growing age group by total users is still 26-34, the number of women over 55 on Facebook grew by an astounding 175.3% since the end of September. Their male counterparts, however, weren’t able to keep up – growing by only 137.8%. The number of women over 55 on Facebook almost double the number of men over 55 on Facebook today.

That being said, people can't resist what they post on Facebook.  Consider this article from CBS News about the effects of what some people have posted:

Online hangouts like Facebook and MySpace have offered crime-solving help to detectives and become a resource for employers vetting job applicants. Now the sites are proving fruitful for prosecutors, who have used damaging Internet photos of defendants to cast doubt on their character during sentencing hearings and argue for harsher punishment.

"Social networking sites are just another way that people say things or do things that come back and haunt them," said Phil Malone, director of the cyberlaw clinic at Harvard Law School's Berkman Center for Internet & Society. "The things that people say online or leave online are pretty permanent."

The pictures, when shown at sentencing, not only embarrass defendants but also can make it harder for them to convince a judge that they're remorseful or that their drunken behavior was an aberration. (Of course, the sites are also valuable for defense lawyers looking to dig up dirt to undercut the credibility of a star prosecution witness.)

Prosecutors do not appear to be scouring networking sites while preparing for every sentencing, even though telling photos of criminal defendants are sometimes available in plain sight and accessible under a person's real name. But in cases where they've had reason to suspect incriminating pictures online, or have been tipped off to a particular person's MySpace or Facebook page, the sites have yielded critical character evidence.

"It's not possible to do it in every case," said Darryl Perlin, a senior prosecutor in Santa Barbara County, Calif. "But certain cases, it does become relevant."

Perlin said he was willing to recommend probation for Lara Buys for a 2006 drunken driving crash that killed her passenger — until he thought to check her MySpace page while preparing for sentencing.

The page featured photos of Buys — taken after the crash but before sentencing — holding a glass of wine as well as joking comments about drinking. Perlin used the photos to argue for a jail sentence instead of probation, and Buys, then 22, got two years in prison.

"Pending sentencing, you should be going to (Alcoholics Anonymous), you should be in therapy, you should be in a program to learn to deal with drinking and driving," Perlin said. "She was doing nothing other than having a good old time."

Santa Barbara defense lawyer Steve Balash said the day he met his client Jessica Binkerd, a recent college graduate charged with a fatal drunken driving crash, he asked if she had a MySpace page. When she said yes, he told her to take it down because he figured it might have pictures that cast her in a bad light.

But she didn't remove the page. And right before Binkerd was sentenced in January 2007, the attorney said he was "blindsided" by a presentencing report from prosecutors that featured photos posted on MySpace after the crash.

One showed Binkerd holding a beer bottle. Others had her wearing a shirt advertising tequila and a belt bearing plastic shot glasses.

Binkerd wasn't doing anything illegal, but Balash said the photos hurt her anyway. She was given more than five years in prison, though the sentence was later shortened for unrelated reasons.

"When you take those pictures like that, it's a hell of an impact," he said.
 

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Why Is There No Free Consultation with Dallas Divorce Lawyers?

Tarrant County divorce lawyer and blogger Dick Price recently posted a relevant article about initial consultations with divorce lawyers.  Frequently we are asked when a client first calls for information whether we provide a free consultation.  We charge a reduced flat fee for a consultation, less than our hourly rate, but enough to make sure the potential new client is serious in his inquiry.  Here are the reasons Dick Price lists for Divorce Lawyers in Dallas and other places to charge consultation fees:

• For the attorneys who charge by the hour, time is money. They keep their business open by charging for the time they spend working in some fashion on the client's problems. Real information is provided in real time to the client. For the attorney, the service provided is essentially the same type of service they will be providing once they are hired: listen, ask questions, determine needs or goals, gather information, analyze, strategize and create plans.
• Other professionals routinely charge for their time and services at an initial assessment. This includes doctors, mechanics and electricians (just to name a few). The time and skills of the professionals are being applied to the problems at hand.
• In addition, when an attorney meets with a prospective client, the attorney becomes immediately disqualified from representing the spouse. That can result in a loss of income for the attorney.
• Another consideration is that the attorney is unable to work on other clients' business when they are attending an initial meeting with a potential new client. That means less income for the attorney and no progress on the other client's issues. Even if it only delays the work, the delay can become a problem for the client and then the attorney. Most clients prefer not to be put on the back burner. They want their matter resolved NOW!
• In addition, busier attorneys will charge for the consultation. To not charge for the consultation would subject the attorneys to spending a lot of uncompensated time with the new client. Again, that prevents the attorney from being able to do significant work on other cases.

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As a Dallas divorce lawyer, I frequently have clients that come into my office wanting “sole custody.”  Custody is a term that means different things to different people.  In this series of blog posts, I’ll explain how “custody” is determined in Texas.  The first post in this series will define the words Texas courts use in determining custody issues. 

In Texas conservatorship is the term that equates with custody.  Chapter 153 of the Texas Family Code sets forth the framework for appointing individuals as conservators and granting rights of possession and access to a child. 

There are two types of conservators: managing and possessory.  Managing conservators are further divided into two sub-categories, sole and joint.  A sole managing conservator is a person that is granted exclusive rights to make decisions for the child.  A joint managing conservator is one of two people who share the rights and duties of a parent, even if the exclusive right to make certain decisions (for example, the place of the child’s primary residence) is awarded to only one person.  A possessory conservator is a person who is designated by the court as having a right to possession of a child under specified conditions, and who is authorized during their periods of possession to exercise certain rights of a parent.  A very common misconception regarding joint managing conservators is that each parent must have equal periods of possession.  Also, a possessory conservator can exercise his or her periods of possession to the exclusion of a managing conservator. 

Now that we have the basic definitions down, we’ll look at how a court determines the rights and duties of parents and the periods of visitation to the child.  From the get go, it’s important to understand that the best interests of the child is the most important factor the court looks at when deciding issues of conservatorship, possession and access.  To establish a child’s best interests, parents usually are required to present evidence showing who can better serve the child’s interests. 

Approximately 30 years ago, the Texas Supreme Court identified a non-exclusive list of factors the court will consider in determining what is in the child’s best interests.  These factors are commonly called the “Holly Factors” because of the name of the case they were identified in.  Generally, the Holly Factors fall into three categories: (1) caring for the child; (2) maintaining family relationships; and (3) parenting skills. 

In the next post, I’ll write about the specific items courts consider in assessing the three main Holly Factors.

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A jury in Dallas County, Texas took on the basic meaning of "family" when considering where to place an 18-month old child in the custody of CPS because her father is in jail and her mother is deported.

The child has lived in the home of her foster parents since she was only days old. That is the only home she has known.  Yet, the jury awarded custody of the child to the child's paternal grandmother from Mexico, who had only recently come forward.  The grandmother has custody of two of the siblings of this child in Mexico.

The grandmother argued that she should have custody of the child because she is a blood relative and therefore "family" of the child.

The foster parents happen to be gay and have another adopted child.  They argued that they provided the real family, regardless of bloodlines, for the child for her entire life, so the child should remain with them.

So, what factors did the jury find important?  Was there some element of prejudice against the alternative lifestyle of the foster parents?  Or did the jury place more weight on the blood relationship between the child and her grandmother and siblings?

Hat tip to CBS 11 for this article.

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Fred Silberberg of the Huffington Post blog posits that a divorce proceeding ought to be a private family matter not subject to open public view.  He says in New York divorce proceedings are private such that the public cannot view the proceedings. However, he says, California has open courts such that the public has full access to the proceedings.

When one enters into a marriage or a domestic partnership, they do it privately. While the parties get a marriage license, no one is privy to whatever agreements the parties may reach regarding refinances, domestic arrangements, childcare arrangements and the like. In fact, the law is even written in a manner to protect the confidentiality of the marital relationship. For example, a spouse can refuse to testify against his or her spouse in a legal proceeding, and the communications between the spouses are generally held to be confidential and not subject to disclosure. Even Federal law addresses this to some extent in keeping tax return information confidential. Yet, if parties end up in divorce court in some states, suddenly there is no confidentiality whatsoever. And divorces, being the nasty animals that they often are, dredge up all kinds of allegations and personal information. Suddenly, the dirty little secrets that one spouse confided in the other become the public disclosures that the entire world has a right to know.

Read more at: http://www.huffingtonpost.com/fred-silberberg/my-divorce-is-none-of-you_b_277705.html 

However, at Divorce Saloon, the author posts that she has first-hand witnessed that divorce proceedings in New York are not closed to the public.

I think that is incorrect. I have never seen a judge toss anyone from a courtroom just because the civil action being heard is a “Divorce.” The general public can totally sit in on your divorce and hear all your business if they choose, Mr. Silberberg. Both in New York and California.

Now. I don’t think they can get a copy of the transcripts. Nor can they view the file unless they are parties to the action or the attorneys. But they can sit in in the courtroom and hear your business. Sure, the judge always has discretion if she will seal a case off from the public. But that is likely to meet with First Amendment challenges if it is a newsworthy case. So I think you are wrong on what you said in your article, Sir. We can argue about it, but I think, ultimately, you are incorrect.

Read more at: http://www.divorcesaloon.com/the-no-fault-divorce-revisited-is-your-divorce-anyone-elses-business

But, the blogger at Divorce Saloon comments that, even though New York is not as depicted, she agrees that divorce proceedings should be private.

In Texas, divorce proceedings, like other civil matters, are generally open to the public.  Courts have the discretion in certain circumstances to close the courtroom and seal a file. In my experience, judges are more likely to grant a request to close the courtroom and seal the file when there are sensitive matters involving children involved.  Both authors talk about "family business" as being a reason to keep such matters private, but it is doubtful that a Texas court would find that to be enough.  It is also doubtful that a Texas judge would find it to be enough that the divorce matter involves financial business of the spouses.

Although the Texas media does not often report on divorce proceedings, the nature of our court system requires that such proceedings be open to the public.  Because we have elected judges, the public should be able to assess a judge's performance in any such proceedings.  To close the courts for certain cases would transform the court system we have into a semi-administrative system that works against our traditional notions of justice.  Spouses, if they do not want their matters tried in an open court proceeding, can (obviously) settle their matters outside of court such that their laundry is not aired publicly except to the extent that there are documents contained in a file that may be viewed by the public.  Or, if a trial -- airing of dirty laundry -- becomes necessary, the spouses always have the option of hiring a private judge to conduct the trial in a private session.  The parties would bear the cost of such special judge, but that would be a prioritization of their privacy based on the cost of doing it (cost/benefit analysis).

Hat tip to Divorce Saloon blog for pointing me to this article.

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Stars and Stripes reports that family law attorneys are seeing an increase in cases in which troops finishing combat rotations return home to angry custody battles and unsympathetic judges, who see long tours overseas as an obstacle to providing a stable home for children.  Members of Congress have been fighting for years for better protection of military parents who are deployed and again this summer passed legislation to prohibit courts from making custody changes while a servicemember is overseas.

Hat tip to Eric Beal of the Beal Law Firm for pointing to this article.

This year, the Texas Legislature passed new laws affecting military parents. Senate Bill 279 became effective September 1, 2009. Read a copy of the enrolled bill here.  It provides:

• A parent who is deployed a significant distance from the child such that his or her conservatorship will be affected, the parent may seek a temporary modification of the court's orders during the period of deployment.
• Temporary orders granted under this section terminate at the end of the deployment.
• If the conservator with the exclusive right to designate the primary residence of the child is ordered to military deployment, the court may render a temporary order to appoint a designated person to exercise the exclusive right to designate the primary residence of the child during the military deployment, military mobilization, or temporary military duty in the following order of preference:
  (1) the conservator who does not have the exclusive right to designate the primary residence of the child;
  (2) if appointing the conservator described by Subdivision (1) is not in the child's best interest, a designated person chosen by the conservator with the exclusive right to designate the primary residence of the child; or
  (3) if appointing the conservator described by Subdivision (1) or the person chosen under Subdivision (2) is not in the child's best interest, another person chosen by the court.
• For a parent without the exclusive right to designate the primary residence of the child is ordered to military deployment, the court may render a temporary order to appoint a designated person to exercise the right of possession of and access to the child in place of the deployed parent.  The periods of possession will be the same as the parent had under the court's orders. 
• Such orders must be in the best interest of the child, obviously.
• Such motion for temporary modification may be eligible for an expedited hearing if it is required due to the military deployment.
• Not later than the 90th day after the date a military parent without the exclusive right to designate the primary residence of the child concludes the parent's military deployment, the parent may petition the court to:
  (1) compute the periods of possession of or access to the child to which the parent would have otherwise been entitled during the conservator's deployment; and
  (2) award the parent additional periods of possession of or access to the child to compensate for the periods described by Subdivision (1).
   

Read the Stars and Stripes article after the jump....

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Pet Custody Dispute Leads to Mounting Legal Bills

Legal bills in a custody dispute involving a couple’s pet dog have topped $40,000, according to media reports. The mounting attorneys’ fees come after a landmark decision by a Pennsylvania appellate court that held a trial judge should have weighed the subjective value of the pug in determining custody and compensation for the couple. An attorney for one of the parties conceded that the protracted dispute could be a slippery slope for the legal community. Martha Neil, American Bar Association Journal 07/30/2009
 

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In a recent opinion by the Dallas Court of Appeals, the Court held the trial judge did not err when he did not apply a domestic violence presumption in assessing child custody and did not record an interview with a child in the office outside the court room.  In the Interest of S.E.K. & H.A.K., No. 05-08-00858-CV, --- S.W.3d --- (Tex. App. - Dallas, Aug. 28, 2009). 

In S.E.K. mother and father were divorced and were initially appointed as joint managing conservators for the children.  Several years after his divorce, father filed a law suit with the aid of his lawyer seeking to modify the custody determinations provided in his divorce decree.  In response, mother filed a counter-suit also seeking to modify the custody schedule.  Mother complained to the trial judge that father shouldn't have primary custody of the children because of prior allegations that he sexually abused the kids.  The trial judge (from Dallas) was presented with testimony from both sides and their expert witnesses and ordered: (1) father has sole custody of one child; (2) mother has sole custody of the other child; and (3) visitation of the children has to be supervised.  Mother was unhappy with the trial judge's ruling and appealed.

On appeal, mother argued the trial judge committed error by not noting on the record the allegations that father sexually abused his children.  Additionally, mother complained that the trial judge erred when he did not make a record of his interview with the couple's child in his office just outside the court room.  Both of mother's complaints arose under Chapter 153 of the Texas Family Code (which deals with the initial determination of custody and visitation).  

The appellate court noted that this case was not an initial determination of custody, but rather it was a modification case.  Because the case sought to modify a prior custody determination, the Court said that Chapter 153 of the Family Code did not apply but rather Chapter 156 controlled.  The appellate court went on to state that the Texas Legislature placed different standards in Chapters 153 and 156 and because of this, the law mother relied on did not apply.  In a modification suit, the main issues are whether there have been material and substantial changes which warrant a modification in custody and whether the proposed changes would be in the best interest of the child.    The main issues to be determined in an initial custody determination are different than this and are reflected by the language of the laws found in Chapter 153.

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Most family law lawyers in Dallas Texas or nearby areas already know this....  the success of a child depends less upon whether the parents are married to each other as it depends on the stability of the child's environment.  Minimizing the child's exposure to changes in living situation, experiencing the divorce of the child's parents, or being dragged through a custody case create instability that cause children long-term effects.  Further, frequent moves, introducing multiple romantic partners, and switching schools can also be factors in increasing instability and decreasing the success of children. 

Consider this news item I read about today:

The advantage that children get from living in two-parent families may actually be due to family stability more than the fact that their parents are married. A new study finds that children who who are born and grow up in stable single-parent homes generally do as well as those in married households in terms of academic abilities and behavior problems.

"Many of the studies that show an advantage for children who grow up in married households versus those who grow up with single parents don't distinguish between family structure and family stability," said Claire Kamp Dush, author of the study and assistant professor of human development and family science at Ohio State University."Our results suggest that the key for many children is growing up in a stable household, where they don't go through divorce or other changes in the family - whether that is in a single-parent home or a married home."

This study examined children who were born to always-single mothers - not those whose mothers were single as a result of a divorce, she said. Kamp Dush said she is not suggesting that there are no advantages for children living in two-parent homes. Particularly for black families, the study did find ways in which children did better with two parents. However, careful study suggests that white and Hispanic children can do well living in single-parent homes if they have a stable home environment.

The study appears as a chapter in the new book "Marriage and Family: Perspectives and Complexities" (Columbia University Press), which Kamp Dush edited with H. Elizabeth Peters, professor of policy analysis and management and director of the population program at Cornell University.

For her study, Kamp Dush used data from the National Longitudinal Survey of Youth, a nationally representative survey of people nationwide conducted by Ohio State's Center for Human Resource Research. Men and women aged 14 to 22 in 1979 were interviewed annually from 1979 to 1994, and once every two years from 1996 forward. The NLSY also studied these participants' children and Kamp Dush used detailed information gathered on these children, who were between the ages of 4 and 15 between 1986 and 2004.

The full sample for her study included 4,910 mothers and 11,428 children. She analyzed data on four variables for the children: reading and math test scores; a measure of behavioral problems; and a measure of home environment, which looked at levels of cognitive stimulation and emotional support.

But rather than comparing children based simply on whether they lived with married parents versus single parents, Kamp Dush examined family stability, as well. Stable single parent families were defined as those where the children always lived only with the single parent. Stable married families were those in which the children always lived with their married parents. Unstable families were those in which children underwent some transition in their parenting.

In one analysis, Kamp Dush matched pairs of mothers who were similar in nearly every way - including family stability -- except one was married and one was not. She then examined how their children fared. Results showed that for white and Hispanic children from stable single-parent and married families, there was no significant difference in math and reading test scores. However, black children had lower test scores if they lived in a single parent home than if they lived in a married home.

There were no significant differences in behavior problems for children of any race if they lived in stable single-parent homes or in stable married households. The only consistent advantage among all races for children in married households was a better home environment in terms of cognitive stimulation and emotional support.

Overall, Kamp Dush said the results deliver good news to single parents who provide a stable home environment for their children.

"I don't think we can say that growing up in a stable single parent home is necessarily worse than growing up with two married parents," she said.

The issue is especially important because the federal government promotes "healthy" marriage for single mothers under its Temporary Assistance for Needy Families program - the aid program that replaced welfare in 1996.

"Based on this study, we can't say for sure that marriage will be a good thing for the children of single mothers - particularly if that marriage is unhealthy and does not last," she said.

Other research suggests that single mothers in the TANF program would be at great risk of divorce if they did get married, because of their lower levels of education, lower income and the fact that they have a child. And a divorce would cause the family instability that truly does have negative consequences for children.

"My message to single moms is to think carefully before they decide to get married or live with a partner," she said. "Both romantic relationships and parenting are hard work. Unless you think that you and your partner can make it for the long haul, I think it would be better for single moms to avoid moving in with romantic partners. Family transitions are hard for kids."

The study was supported in part by the National Institute of Child Health and Human Development.

Source:
Claire Kamp Dush
Ohio State University
 

Read this article on the Medical News Today website.

Hat tip to WFAA news tonight for alerting me to this .

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Divorce Linked to Chronic Illness, Study Finds

The toll of divorce on a spouse’s health may be more than emotional, a new study has concluded. According to the study, published in the Journal of Health and Social Behavior, persons who were divorced reported more chronic health problems than those who remained married or were never married. Data for the national study were gathered from nearly 9,000 men and women in their 50s and early 60s.

While this does not mean that people should stay married at all costs, it does show that marital history is an important indicator of health, and that the newly single need to be especially vigilant about stress management and exercise, even if they remarry.

The health benefits of marriage, documented by a wealth of research, appear to stem from several factors. Married people tend to be better off financially and can share in a spouse’s employer health benefits. And wives, in particular, act as gatekeepers for a husband’s health, scheduling appointments and noticing changes that may signal a health problem. Spouses can offer logistical support, like taking care of children while a partner exercises or shuttling a partner to and from the doctor’s office.

Over all, men and women who had experienced divorce or the death of a spouse reported about 20 percent more chronic health problems like heart disease, diabetes and cancer, compared with those who had been continuously married. Previously married people were also more likely to have mobility problems, like difficulty climbing stairs or walking a meaningful distance.

While remarrying led to some improvement in health, the study showed that most married people who became single never fully recovered from the physical declines associated with marital loss. Compared with those who had been continuously married, people in second marriages had 12 percent more chronic health problems and 19 percent more mobility problems. A second marriage did appear to heal emotional wounds: remarried people had only slightly more depressive symptoms than those continuously married.

Tara Parker-Pope, The New York Times 08/03/2009
Read Article: The New York Times
 

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On August 28, 2009, the Dallas Court of Appeals issued an opinion relating to intentional underemployment and its impact on determining child support.  Pursuant to Section 154.066 of the Texas Family Code, if an obligor is intentionally unemployed or underemployed in an attempt to reduce child support payments, the court's wage and salary income calculations are not limited to actual earnings, but instead are based on the obligor's earning potential. 

In In the Interest of J.G.L., the Dallas Court of Appeals modified the trial court's ruling finding that husband was intentionally underemployed in an attempt to reduce his child support payments.  In the Interest of J.G.L., No. 05-08-01124-CV -- S.W.3d -- (Tex. App. - Dallas, August 28, 2009).  The court noted that the Texas Family Code requires courts to make specific findings if "[t]he amount of child support ordered by the court varies from the amount computed by applying the percentage guidelines."  Id.  Thus, a finding of voluntary underemployment allows to the court to set child support at the earning potential, rather than the actual earnings, of the obligor.  Id.  Once the obligor's wages are established, the burden shifts to the obligee to show the obligor's intent to decrease income for the purpose of reducing child support payments.  Id.  Evidence of such intent can be established through examination of the obligor's education, economic adversities, business background and earning potential.  Id.  (citing In re P.J.H., 25 S.W.3d 402, 405-06 (Tex. App. - Fort Worth 2000, no pet.).  

At trial, the obligor's employer testified as to father's level of income over the preceding three years.  Specifically, employer testified that father earned $62,730 in 2005, $76,900 in 2006 and $54,300 in 2007.  The employer indicated that father's work load decreased because of his emotional state during the divorce and because the employer faced adverse economic conditions.  Id.

The court then noted that mother had the burden at trial to present evidence of intentional underemployment as a specific basis for departing from child support guidelines applied to father's 2007 income.  Of course, evidence sufficient for this purpose must be of a substantive and probative character.  At trial, however, mother did not provide any testimony or offer evidence in support of her assertion that father was intentionally underemployed.  Id.  As a result, the court held there was no evidence supporting a finding of voluntary underemployment.  Id.

J.G.L. shows how important it is to know your rights when it comes to determining child support amounts.  In light of the current economic downturn, it is understandable that income levels have dropped.  Bottom line: in order to deviate from the child support guidelines, specific evidence must be introduced supporting a claim of intentional under or unemployment.   

As a Dallas divorce lawyer, it is critical to stay up to date on new case and statutory law which affects child support orders.  If you are facing a claim of intentional under or unemployment, remember the other side bears the burden of proof.  Please feel free to contact our offices if you are navigating the child support river and need assistance in doing so.

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Dallas Divorce Lawyer Michelle May O'Neil

Teaches Other Lawyers About Winning

Michelle May O'Neil, founding partner of Dallas' O'Neil Anderson family law boutique firm, presented at the Advanced Family Law Conference held in Dallas in August 2009.  O'Neil presented her paper Winning Your Case Before You Go To Trial together with Judge William Harris of the 233rd Family District Court of Tarrant County, Texas.

Here's an excerpt from the paper:

 Dictionary.com defines a “win” as achieving victory or finishing first in a competition. Many times in family law litigation it is hard to define what constitutes a “win” in any particular case. What really is a “victory”? For some clients the simple act of obtaining the divorce will be considered a “victory”. Others set their standard of a “victory” very high, such as when a client will only be happy if he or she has the child 100% of the time.

Much of “winning” is determined by where the bar gets set to define a win. Establishing achievable goals remains one of the most essential aspects of client relations, as well as “winning” the case.

An additional aspect of “winning” might be to cut short what might otherwise be protracted litigation. This paper aims to review methods of “winning” the case prior to an extended trial on the merits of the case. This paper presumes that “winning” is defined as achievement of the client’s reasonable goals in a quick and efficient manner. This paper discusses various aspects of disposition of a case, both on procedural grounds as well as the merits of a claim, prior to trial. Areas such as jurisdiction, special exceptions, default judgments, summary judgments, declaratory judgments, discovery, sanctions, and pretrial appeal are covered.
 

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