Dallas Divorce Law Blog : Dallas Texas Divorce Lawyer & Attorney : O'Neil Attorneys Law Firm : TX Child Support & Custody Issues

 A Texas couple is challenging a 30-year-old federal law designed to promote the adoption of Native American children by Native American parents. Foster parents Karen and Cecil Couie say they want to adopt the boy, who is part Choctaw, but Child Protective Services hope to place him with a Native American family in Oklahoma.

The Indian Child Welfare Act of 1978 gives tribal governments a strong voice concerning Native American child custody proceedings by allocating tribes sole jurisdiction over states when the child is domiciled on the reservation and concurrent, but presumptive, jurisdiction over non-reservation Native Americans’ custody proceedings.

The ICWA lays out the minimal Federal standards for nearly all Indian child custody proceedings, including adoption, voluntary and involuntary termination of parental rights, and removal and foster care placement of Indian children. It states that state courts do not have any jurisdiction over the adoption or custody of Indian children residing within their own tribal reservation. Section 1903 defines Indian child as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”

The article on CBS 11 website -- Law May Take Boy From Forney Foster Parents

A federal law more than 30 years old may prevent a white couple from Forney from adopting a two-year-old child who is part Native American.
Karen and Cecil Couie are in charge of six playful kids: five foster children and one adopted child. The couple is looking to adopt again. This time, it's their two-year-old foster child.

"That's my baby," said Karen Couie. "He's mine. He's our child."

Child Protective Services placed the boy with the Couies when he was six weeks old. Four months later, CPS discovered that the boy is part Choctaw.

The state agency immediately began looking for Native American parents to adopt the child, because that's what federal law mandates.

The law is called the Indian Child Welfare Act of 1978. It's designed to keep Native American children with Native American parents to preserve their heritage.

CPS found a couple in Oklahoma where both parents are part Native American. But the Couies argue that breaking their parental bond would be devastating to the child.

"We have to do everything possible to keep him," said Cecil Couie. "He means that much to us. As long as we've done everything possible, that's all we can do. But if we don't, then we will always have doubt."

The couple has filed a petition in Collin County asking the court to keep CPS from placing the boy with the Oklahoma couple. A hearing is set for October 20.

CPS says foster parents are usually considered first when the child is available for adoption. In this case, CPS spokeswoman Marissa Gonzales says the agency was bound by the federal law.

The Couies say they understand the importance of heritage, but they argue that love is the most important thing a parent can pass down to a child.

Jay Gormley, CBS 11 10/09/2009

The ICWA was originally enacted by Congress in 1978 due to the high removal rate of Indian children from their traditional homes and essentially Indian culture as a whole. Before the bill was enacted, as many as 25-35 percent of all Indian children were being removed from their Indian homes and placed in non-Indian homes, with presumably the absence of Indian culture. If Indian children continued to be removed from Indian homes at this rate, true Native American Tribal survival would continue to be threatened. The children were being raised outside of Indian culture and soon would cease to be known as true Indians. Instead, they would be known as assimilated into other non-Indian cultures.

Indian children were also not being placed in conducive Indian cultural environments due to the inability of the social workers to place them in environments that were economically stable in accordance to the state regulations. In addition to that many Indian parents were being taken advantage of because they lacked adequate legal representation in child custody proceedings and were unknowingly convinced to waive their parental rights.

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I received a question from a client today asking how the court would determine the value of the piece of property in the community estate.  Often times, the parties will litigate over the value of a piece of property, so it is important to know how, in the absence of an agreement, the court will determine a property's value.

As a general rule, property is valued according to its fair market value as of the date the marriage is dissolved.  Texas courts have routinely defined fair market value as the price the property will bring when it is offered for sale for one who desires, but does not need to, sell, and is bought by a person who desires, but is not required to, buy.

If a piece of property doesn't have a fair market value, the property can be valued using its intrinsic value.  The intrinsic value of property is the actual monetary value of the property's use to the owner, excluding any fanciful or sentimental consideration.  In determining intrinsic value, the fact finder cannot consider any evidence of the property's fair market value, but can consider the property's original purchase price, its replacement cost, its uses, and any other facts that might shed light on its intrinsic value.

In sum, the majority of the time the court will determine value by using the fair market value approach at the time the divorce is granted.  Obviously parties frequently have differing opinions as to property values, but using the fair market value approach is a relatively objective means to obtaining a value.

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The New York Times reports today:  More Fathers Are Getting Custody In Divorce by Lisa Belkin.

Working Mother Magazine published a package of articles on Tuesday called “Lost Custody,” about the new reality of divorce and child custody for working mothers.

It is filled with tales of women who were the primary earners in a marriage, and who watched their husbands gain primary physical custody of their children when the marriage ended. There are now 2.2 million divorced women in the United States who do not have primary physical custody of their children, and an estimated 50 percent of fathers who seek such custody in a disputed divorce are granted it.

As the writer Sally Abrahms describes it:

Not long ago, men usually paid the child support and doled out the alimony. Moms (working or not) almost always got the kids in messy divorce wars. Years of changing diapers, wiping noses and kissing boo-boos gave them the edge. But now the tide is turning.

The “tender-years doctrine,” a court presumption that mothers are the more suitable parents for children under 7, was abolished in most states in 1994. And, in large part because of the recession, women are poised to outnumber men in the work force for the first time in American history. Job layoffs affecting more men than women have yielded a burgeoning crop of Mr. Moms.

“Men are now able to argue that they spend more time with the kids than their working wives do,” says the veteran New York City divorce attorney Raoul Felder. “This is one of the dark sides of women’s accomplishments in the workplace — they’re getting a raw deal in custody cases, while men are being viewed more favorably.”

Or is it a raw deal? Is it not, in effect, the same presumption — the parent who works harder, parents less — that men have faced for years? You could make that argument, Abrahms says. You could also argue that working women are held to a higher parenting standard than working men, paying a price for not conforming to the cultural expectation that mothers be more hands-on than fathers.

Either way, the percentage of fathers with primary custody will likely increase, one more example of shifting social views about parenting. And there will be more stories like the one Abrahms tells of Julie Michaud, who ran her own business, which supported her family, while her unemployed husband cared for the couple’s 7-year-old son and 5-year-old daughter. As Abrahms writes:

Julie sat helpless as Mark’s lawyer argued that he was the one who arranged the playdates, took the kids to the pediatrician and volunteered at their schools. Affidavits from teachers and neighbors attested to his hands-on involvement in their daily lives. Meanwhile, Julie’s long hours at work meant that people in the community didn’t witness just how much parenting she did out of view. No one saw the lunches she packed every morning, the all-nighters she pulled when the kids were sick. “If I could have done things differently,” Julie says today, “I would have made myself supervisible.”

If a mother works more, and a father less, is that a logical reason for the children to live with him? Have you felt the swing of this pendulum in your own life?
 

 REEWY2Z2WP33

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I frequently get questions from potential clients about what are the effects of adultery in the outcome of a divorce.  Recently I was asked: "Will it be held against me if I get another woman pregnant before my divorce is final?"  This post will be one of several where I'll answer questions I receive from the trenches.

Texas is a no fault divorce state which essentially means that neither party necessarily has to prove the other did something "wrong" causing the divorce.  However, fault grounds often arise in divorce proceedings and the court will consider them in dividing the community property. The division of property under the Texas Family Code has to be "just and right" - not necessarily a 50/50 split.  A man and wife are still considered married until the court enters a final decree of divorce, therefore getting another woman pregnant before your divorce is final is considered adultery.  So, what is the effect?

The court will take the adultery in consideration when dividing up the community property. Certain counties consider adultery more heavily than others when dividing up the community estate.  Some counties take a "what's the big deal" approach and others are more conservative.  So, if you get another woman pregnant while waiting on your divorce to be final, its possible the court will award a disproportionate share of the community estate to the other spouse (or quite possibly, stick the adulterer with more debt).

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Parents can now coordinate parenting time schedules, health records, immunization histories, expense sharing, school information, virtual document storage and much more on a website specifically designed to deal with the issues that arise in co-parenting situation.  OurFamilyWizard.com is intended to remove conflict and improve the lives of children. In fact, judges in at least 35 states order families to utilize the site in contested cases to reduce conflict. The OurFamilyWizard website has quickly become the leading way parents coordinate all of their vital information, divorced or not.

The Indy Star newspaper ran this article about OurFamilyWizard:  Online service helps divorced parents keep children's schedules straight

Divorce is hard. Add children and juggled schedules to the mix, and things can get hostile.

Paul Volker and Dara Wegener-Volker, who live in Minnesota, were married in 2000. Volker brought three children to the marriage; Wegener-Volker brought one.

After her first marriage ended in divorce, Wegener-Volker started a desk calendar to manage her daughter's schedule. Pink days were spent with Mom, blue days with Dad.

"To keep my life organized and civil, I did everything on paper," she says. "It was important for my daughter."

After the addition of Volker's kids, scheduling conflicts escalated -- until one night in 2001 when he had an idea. What if the couple could put their schedule online and make it visible to the other parents?

"I had kind of an epiphany," Volker says. "What if I could get everything on the Internet, and we would only have to see the information that was available, for the sake of the kids?"

That's how OurFamilyWizard.com began.

The site, which went live in 2001, allows parents to input their schedules, coordinate days and swap visitation days.

The Web site is court-ordered in 35 states, because the records on the site are time- and date- stamped, and communications are backed up by an electronic breadcrumb trail. Expenses can be logged, and there's even a journal on the site.

The Volkers, along with company president and CEO Jainarain Kissoon, also hope to add a section for child-support payment records.

The service has about 15,000 household subscribers, many of which are in California, Florida and Canada. It costs $99 a year.

A lot of users are reluctant to start with the service, according to Volker, who hopes the site brings families through the turmoil of divorce a little bit easier.

"I think it brings peace a lot sooner in children's lives," Wegener-Volker says.
 

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Last Friday, November 12, 2009, its opinion styled In re Cooper, No. 05-09-00995-CV, the Dallas Court of Appeals conditionally granted wife's petition for mandamus relief, holding the trial judge abused her discretion by imposing a residency residency restriction pending final trial in a divorce case that  required wife, temporary primary conservator of the parties two children, to relocate from North Carolina, where she had secured employment and owned a house, to Dallas and contiguous counties, where she had neither.

In Cooper, wife testified at the hearing on her motion to modify agreed temporary orders, that she had applied for jobs in Dallas with schedules that would allow for her to spend time with her children, but was unsuccessful. Wife ultimately accepted the only position she was offered, which was in North Carolina. The trial judge did not consider wife's efforts at procuring employment in Dallas successful, denying wife's request to modify agreed temporary orders, which interestingly allowed wife to reside in South Carolina with the children pending completion of her residency program, because she failed to establish that she made "extreme efforts' to find employment in the Dallas area. The trial court stated in her ruling that wife should have made Dallas a priority in her job search by "leaps and bounds" since that is where husband resided and where wife and the children had resided prior to initiation of the divorce case. Since wife failed to establish that she made sufficient efforts according to this standard, the trial judge ruled in husband's favor. Wife then filed her Petition for Writ of Mandamus, seeking relief .

The opinion from the Dallas Court of Appeals, authored by Justice Bridges, concludes that the trial judge abused her discretion by imposing a greater burden on wife than the law allows. The Court notes that no authority supports the trial court's requirement that wife make "extreme efforts" to find employment within Dallas and contiguous counties. Instead, the Court cited Lenz v. Lenz, as the correct standard, allowing for the modification of residency restrictions to allow the custodial parent to relocate when the proposed relocation will significantly improve the custodial parent's economic circumstances to the child's benefit. Lenz v. Lenz, 79 S.W.3d 10, 17 (Tex. 2002). The Court further found wife had no adequate remedy at law since compliance with the trial court's temporary orders required her to choose between custody of her children and financial ruin. Therefore, wife's petition for writ of mandamus was granted.

This case is relevant to lawyers that practice in Dallas county, and other areas of Texas as well. With the current state of the economy, at Dallas Divorce Law, either our clients or the opposing party is often in a position where they are forced to search for other employment in Dallas county and beyond. People frequently relocate to other counties or states for their current job or to find a new one. When modifying a residency restriction, either before the final trial in temporary orders or in a modification proceeding, focus on the Lenz factors in making your case for relocation and keep the Cooper opinion in mind.

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The Texas Lawyer's Creed turned 20 years old on November 5, 2009 marking a milestone in the Texas Bar community for the promotion of professionalism and civility in the legal profession.  Being an attorney in the great state of Texas (any any other state for that matter) is a privilege.  With this privilege comes a great amount of responsibility.  Unfortunately there are some bad attorneys out there who have tarnished the image of the legal profession.  The lawyer's creed sets forth a model of behavior which, if followed, helps to improve the public image of the legal profession and bolsters good will among members of the bar.

One of the most important components of the lawyer's creed addresses the lawyer's relationship to his/her client.  The legal profession is a service industry, and there certainly isn't a lack of capable attorneys to handle cases.  Being capable, however, is only part of the equation for success.  Following the lawyer's creed is also a large part of the equation in obtaining a favorable result for a client. 

So happy birthday to the lawyer's creed and here's to another 20 years of helping us lawyers strive for excellence! 

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Yesterday was a great day for us here at the Dallas Divorce Law Blog.  We started the day with recognition from the Dallas Morning News Momsblog.  Dallas divorce lawyer Michelle May O'Neil has been honored as a contributor to the DMN Momsblog.  Her post entitled Who Calls the Doctor When a Child Has Two Homes? was featured yesterday. 

The blog was also recognized as the Best in Law Blogs on November 10, 2009 by LexBlog.  The entry entitled Parent Coordinator v. Parent Facilitator -- What's the Diff? received this national attention.

Good work guys!

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A question was asked of me today -- what's the difference between a Parent Coordinator and a Parent Facilitator?  The Texas Legislature changed the law in September 2009 to clarify the duties of a Parent Coordinator and added a new category called Parent Facilitator. 

A parent coordinator (PC) is a person who is appointed by the court to assist parents in split families in resolving parenting issues through confidential procedures.  A parent facilitator (PF) is a person who is appointed by the court to assist parents in split families in resolving parenting issues using procedures that are not confidential.  (Texas Family Code sec. 153.601(3), (3-a).)

In order for a court to appoint a PC, the court must hold a hearing to determine whether the case is a high-conflict case and/or whether the appointment of a PC is supported by good cause and the best interest of the child.  (Texas Family Code sec 153.605)  The only objection to the appointment of a PC is on the basis of domestic violence by one parent against the other or the child.  Even so, the court may appoint a PC and put in place some measures to protect the parent and child's safety.  The standards are the same for appointment of a PF. (Texas Family Code 153.6051.)

So, basically this means that the PC cannot be called to testify in court about the PC proceedings.  But, a PF can be called to testify regarding the PF proceedings.

The duties of a PC or PF include: 

• identifying disputed issues,
• reducing misunderstandings,
• clarifying priorities,
• exploring possibilities for problem solving,
• developing methods of collaboration in parenting,
• understanding parenting plans and reaching agreements about parenting issues to be included in a parenting plan,
• complying with the court's order regarding conservatorship or possession of and access to the child,
• implementing parenting plans,
• obtaining training regarding problem solving, conflict management, and parenting skills, and
• settling disputes regarding parenting issues and reaching a proposed joint resolution or statement of intent regarding those disputes.

The court maintains the right to  make decisions about conservatorship, child support, and posession of and access to the child.  The court also maintains the authority to exercise management and control over the suit.  (Texas Family Code sec. 153.606.)

In other words, the PC or PF can work to facilitate agreement on disputed issues or can encourage compliance with the court orders, but the PC or PF cannot permanently modify custody or possession orders.

Meetings with the PC or PF are informal and do not have to follow any set procedures.

A PC may submit a report to the court and parties as requested by the court.  This report is limited to a simple statement as to whether the PC thinks parent coordination should continue. (Texas Family Code sec 153.608.)

A PF must submit a report to the court and parties as requested by the court. (Texas Family Code 153.6081.)  The PF may make recommendations to the court and parties to implement or clarify provisions of the existing court order that are consistent with the intent of the court order and in the best interest of the child.  However, the recommendations may not address conservatorship, support, or possession modifications.  (Texas Family Code 153.082.)

The law requires a PF to keep detailed records regarding meetings and contacts with the parents, attorneys, or other persons involved in the suit.  Those records must be made available to the attorney for a party, a pro-se party, or attorney for the child upon request.

Typically a PC or PF is paid by both parties in an equal allocation, but the court has the discretion to order some other method of payment.

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Lawyer Fined $100 for Getting a Case Citation Wrong
From the ABA Law Journal
By Debra Cassens Weiss

A Wisconsin lawyer has been fined $100 for getting a citation wrong in a brief submitted to the Wisconsin Court of Appeals.

The appeals court expressed its frustration in a footnote to an unpublished opinion, Espitia v. Fouche, Legal Blog Watch reports. The court imposed the penalty and explained the reason for it in a footnote to a 2008 unpublished opinion, Espitia v. Fouche. Here is the entire footnote:

Counsel for Espitia cites to an unpublished case assertedly upholding a stipulated damages clause due to the difficulty of ascertaining "the exact amount of income certain vending machines would produce." The cite provided is "Buellesbach v. Roob, 2005 AP 160 (Ct.App.Dist.I)." Buellesbach indeed is unpublished but it has nothing to do with liquidated damage clauses or vending machines; it is a misrepresentation case brought by newlyweds against a wedding photographer. Also, "2005 AP 160" is the docket number, which we discovered only after reaching a dead end at 2005 WI App 160, 285 Wis.2d 472, 702 N.W.2d 433. At last we located the unpublished case that addresses the subject matter for which counsel cited Buellesbach: Stansfield Vending, Inc. v. Osseo Truck Travel Plaza, LLC, 2003 WI App 201, 267 Wis.2d 280, 670 N.W.2d 558. Different name, different citation, different district (District IV) but, as promised, unpublished. It is a violation of Wis. Stat. Rule 809.19(1)(e) to provide citations which do not conform to the Uniform System of Citation and of Wis. Stat. Rule 809.23(3) to cite to unpublished opinions. One reason may be that they can be time-consuming to locate. A $100 penalty is imposed against Espitia's counsel. See Hagen v. Gulrud, 151 Wis.2d 1, 8, 442 N.W.2d 570 (Ct.App.1989).
The lawyer cited an unpublished case that supposedly upheld a stipulated damages clause in a vending machines contract. But a search for the case based on the name provided by the lawyer turned up a misrepresentation case brought by newlyweds against a wedding photographer.

The cite wasn’t helpful, either. It was listed as “2005 AP 160,” which sent the appeals court to 2005 WI App 160 and another “dead end,” the footnote said. When the court finally found the real case—which had an entirely different name—it learned “2005 AP 160” was the docket number.

“Different name, different citation, different district (District IV) but, as promised, unpublished,” the court said in the footnote.

The lawyer who will have to pay the fine wasn’t identified.

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Dallas Divorce Attorneys MIchelle May O'Neil and Nathan Anderson were featured today on the national blog Real Lawyers Have Blogs by Kevin O'Keefe on the topic of lawyer blogging.  The post recounted an interview by Lisa Kennelly about O'Neil Anderson's unique take on blogging. 

See the post here:  Michelle May O'Neil of Dallas Divorce Law Blog:  LexBlog Q&A

Or, read the article after the jump.

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A Dallas jury last week upheld a restriction on the children's residence to the Dallas area in the face of the Mother's request to move out of the country.  The mother sought to modify the divorce decree to change from joint custody to sole custody and lift the Dallas-area restriction on the children's residence so she could move the children out of the country.  The father countersued for primary custody and opposed the mother's plan to move.  The attorney for the children advocated sole custody for the mother for one of the children and joint custody for the other child.

I am told by one of the lawyers involved that the judge indicated she would follow the request of the attorney for the children.  The mother disagreed and requested a trial by a Dallas County jury.

After a week long trial, the jury ruled in favor of the mother on her request for sole custody, disregarding the children's attorney's recommendation.  However, the jury refused to lift the restriction on the children's residence, keeping the children in the Dallas area.

There are two lessons to learn from this trial.  First, from the mother's perspective, if you disagree with the direction a judge may be leaning in your case, a jury might actually see things differently from the judge.

Second, Dallas County takes seriously the policy that both parents should have the opportunity to be actively involved in their children's lives.

The Dallas County family court judges were the first to develop the idea of restrictions on the child's domicile in a joint custody situation.  This idea furthers the state policy of frequent and ongoing contact between both parents and the children.  This policy has now been approved statewide and many judges have adopted it.

Here's how it works...  when one parent is given the exclusive right to establish a child's residence in a joint custody situation, such right will be restricted to establishing the residence within Dallas County and counties contiguous thereto for so long as the noncustodial parent lives within that area.  When the noncustodial parent moves outside of that area, the restriction is lifted.  The geographic restriction can be as broad or narrow as the parties agree or the judge finds reasonable.  For example, I've had cases with a restriction to within 5 miles of a particular school, or within the geographic limits of a city or school district.  I also had one case that limited the geographic residence to the city limits of any city in Texas serviced by Southwest Airlines (for ease of travel for the child).

You might ask, isn't that an infringement on my constitutional right to travel and live where I want to.  Well, the answer is no!  The restriction isn't on the parent -- it's on the child's residence.  So the custodial parent may move, but unless the restriction is limited, that parent would have to relinquish custody to be able to move.

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