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

In the divorces in Dallas Texas and surrounding areas, I see a lot of parents that struggle with co-parenting.  It is almost cliche to say that a divorce means the end of the husband/wife relationship, but not the co-parenting one.  Still, many people allow their anger/distrust/dislike of each other interfere with their shared parenting responsibilities with the child's other parent.  Yes, I said "responsibilities" -- you two chose to have a child together, so you have an obligation to your child to work through whatever the difficulties are to parent the child together.  Virtually never will a parent have zero access to a child unless his/her rights are completely severed by a court at law.  So, get used to dealing with him/her.

Lee Block wrote a good article about this on The Huffington Post Blog:

Co-Parenting: The Toughest Job in The World

The divorce is done and things are going along nicely for a while, and then it happens. Your ex doesn't tell you that when the kids were with him or her they got sick. Not just a little sick, but sick enough that when it is your visitation, you have to take them to the doctor.

And, then it happens again. It is their visitation and they show up hours late for pick up, and your plans to meet your friend for dinner had to be canceled. Or, they bring the kids home hours late, and won't answer their cell phone to tell you what is going on.

And, yet again. They stop answering emails and suddenly don't answer the phone when they have the kids so you can speak to them during their visitation. Communication breakdown in post divorce is common and become critical. It is critical that both parents have access to the children no matter who is in possession of them. That is why most decrees state that phone calls can be made and must be answered. It is critical that the parent who does not have the kids knows when the children are sick, and when they call to see how they are doing, that the phone is answered.

It is critical for the children to know that they have access to each parent, no matter whose house they are staying at. But, emotions get in the way. He made you angry because he has a new girlfriend. She made you angry because she didn't tell you about a parent/teacher conference. The list goes on and on.

Despite the long list of complaints you have about your ex-spouse, you must co-parent and communicate. You are divorced on paper, but the truth is, you are never divorced from your spouse if you have children. You spend the rest of your life seeing and communicating with that spouse.

When co-parenting breaks down and one ex refuses to communicate, it is imperative that you put your foot down right away. Do not accept less than what is your right, for your sake and for the sake of your kids. Sometimes that involves going to see an attorney to find out your rights. And, if you are lucky, then one single letter will shape up the situation. If you are not, it could mean several trips back to the courthouse.

But, no matter what it means, co-parenting is essential in the post divorce process. You have to raise your children together. Even though you might consider yourself a single parent, your children do have another parent. And, if that other parent wants to be involved, then you must communicate with them. Put the anger and bitterness aside and communicate.

One tip that has always helped me is to keep it on a business level, rather than a personal level. You are now in the "business" of raising these children with a person that no longer resides in your home. It can be tricky. Do you discipline the same way? Do you have the same values? Do you put the same emphasis on what is important?

It can help if you write down what you need and want regarding how the kids deal with homework, which friends you like and don't like, how you like them disciplined and if there are any issues, such as they are punished or grounded and things they are not allowed to do.

When it comes to children, they need and respond to continuity. So, it is important that both houses provide that continuity. For instance, Little Sophie didn't do her homework, clean her room and talked back to Mom. Mom grounded Little Sophie and took the television away for the week. But, Little Sophie is going to Dad's house on Thursday night. Make sure that Dad knows that Little Sophie is not allowed to watch TV and the reason why. Tell Dad when he picks Little Sophie up, so she knows that he knows, and can't manipulate Dad. Dad should then not only respect that Little Sophie was grounded, but he should talk to Little Sophie about her actions.

Just because you are now living in two separate houses does not mean you can't work together to raise your children. Is it harder? Absolutely. But, if you were still in the same house and Little Sophie had broken those rules, she would be grounded with no television and it wouldn't be an issue. This is important to remember. How would it be IF you lived together?

If you and your ex can co-parent in separate homes the same as when you were parenting in one home, then communication will remain open and there should not be any kind of breakdowns. Also, never forget, it's for the kids that you are doing this. Not each other.

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Typically, January through March is considered the "busy season" for divorce lawyers in Dallas.  After the first of the year, interest picks up in people wanting to file for divorce in Texas.  Many speculate that new year's resolutions give the spark to action for some.  Others figure that unhappy couples stay together through the holidays, intending to split afterwards.

I've also heard a theory that couples split after the Superbowl due to drinking and fighting.  I have to say I've never had any client as a Dallas divorce lawyer give me that as a reason for getting a divorce.  Some think Valentines might be a factor -- stay together long enough to see what the Valentine's present is, then call the divorce attorney.

Recently, a reporter in Columbus Ohio wrote that the statistics there show that March is the busiest month for new divorce filings, most likely because it takes a month or two to get an appointment with the divorce attorney, get the money together to pay her, and get the divorce on file.  See the article Couples Most LIkely To Call It Quits In March.

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January is the month of renewal – closing the door on the negativity of the prior year and planning for the challenges of the new year. Many commit to weight loss, exercise, or stopping smoking at the start of a new year as an opportunity to make improvements in their lives. On the other hand, some people use the beginning of a new year to make new personal beginnings, such as ending their marriage.

Planning for a divorce and new life may seem daunting. Not knowing what to expect can be scary and frustrating. In a Texas divorce, specific requirements must be met before someone will even be allowed to file for divorce. For example, a spouse must live in Texas for 6 months and in a particular county for 90 days to qualify to file for divorce in Texas and in that county.

When going through the divorce, marital assets and debts will need to be divided between the parties. Some people enter into a premarital agreement when they get married to ease the divorce process and define the division of assets and debts in the event of divorce. But, some spouses are unable to agree in advance as to the division of marital property upon divorce in Texas, which can lead to contested litigation. Also, some parents are unable to agree regarding each parent’s role with their children after divorce. Child custody issues can become expensive and time-consuming.

For those spouses who own a business as a marital asset, getting divorced and reaching a fair division of the marital estate can be even more complicated. A business entity is a separate marital asset – the individual assets and debts owned by the business are not part of the marital estate, only the entity as a collective whole. The first step in dividing a marital estate that contains a business entity involves establishing when the business was started. If it was formed prior to the marriage, it may not be community property under Texas marital property law. However, any changes to the organization, such as the entity type or owners may alter the initial characterization of the business as separate or community property.

After determining that the business is community property under Texas marital property law, the second step is to figure the business’s monetary value to the community estate. A CPA or business valuation expert will evaluate and establish the value of the business for property division purposes. It is recommended that the CPA be certified by the American Institute of CPAs in Business Valuations. The value will depend on many different factors, including the amount of assets the business has, properties that the business own, current customers, intangible goodwill, as well as other financial information.

Practically speaking, while the divorce works through the process, the business will need to continue to operate. Owner spouses need to know what to do to protect their investments while the divorce process is ongoing. This becomes even more important if both spouses work at the company and agreements need to be in place regarding each spouse’s rights, duties and responsibilities regarding running the business.

Once there is evidence of the assets and debts contained within the community estate as well as the value of each asset and debt, the parties by agreement, or the judge after a trial, will work to achieve a fair division of the assets and debts between the parties. The division does not have to involve a split of each asset and debt, but will contemplate an overall fair division. One spouse will receive certain assets, the other spouse will receive other assets, each spouse will be allocated certain joint debts, and each party will be assessed the debts in their name only.

If you are considering a divorce or have been served with divorce papers, contact an experienced divorce attorney, especially if you own a business. The decisions you make during this process could impact not only your personal financial freedom but also your business’s bottom line. You need to know what will be considered in the final split of the marital assets and debts.

Contact the Dallas firm of O’Neil Attorneys Family Law for your family law needs, including dividing your business assets upon divorce. Michelle May O’Neil and Ashley Bowline Russell are well-acquainted with the special concerns for complex property divisions in a divorce in Dallas Texas or the surrounding areas. O’Neil and Russell released their new book The Basics of Texas Divorce Law in December 2010. Find them online at www.themayfirm.com or www.oneilattorneys.com.

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Last Friday the Third Court of Appeals at Austin affirmed a Travis County trial court’s ruling granting a same-sex divorce in Texas, State v. Naylor and Daly. The appeal from the divorce judgment was brought not by either of the parties, as they had agreed upon the division of property and the child custody modification included in the decree the trial court approved, but by the State of Texas. 

Appellees Naylor and Daly were married in Massachusetts in 2004. After their marriage they returned to their home state of Texas, adopted a child and started a real estate business together. The couple separated in 2009 and Naylor filed a SAPCR action. They settled their child related issues and the trial court entered an agreed order. Then, Naylor filed a petition for divorce. After a contested hearing lasting two days and a warning from the trial court that the parties had a “legal mess” that they might be better off settling than submitting to the court, Naylor and Daly reached a final settlement. The parties proved up their divorce and the trial court rendered judgment at that time. Only after rendition of the final judgment did the State file their intervention. The trial court denied the petition as untimely and entered the decree over the State’s objection. 

On appeal, the State argued that the trial court lacked subject matter jurisdiction over the parties’ divorce according to Section 6.204 of the Texas Family Code (prohibiting state agency or political subdivision from giving effect to “right or claim to any legal protection, benefit, or responsibility asserted as a result” of same-sex marriage).  But the Austin Court of Appeals, like the trial court, found that the AG’s intervention after rendition of the final judgment came too late. Further, the State failed to meet the requirements for application of the “virtual-representation doctrine”, so this exception to the rule that an appeal is only available to the parties of record did not apply. 

The Austin Court’s opinion emphasizes the fact that this was a private divorce proceeding – not a challenge to the constitutionality of a statute (which would have allowed the State to intervene); it is not a suit to declare the statue unconstitutional or to enjoin its enforcement. As noted, there are interpretations of TFC §6.204 that would allow the trial court to grant the divorce without findings the statue unconstitutional, thus the issue of the statute’s constitutionality is not reached in the opinion.

Practically speaking as Texas divorce attorneys, we think this opinion opens the doors for trail courts here in Dallas and across Texas to grant same-sex divorces provided the State does not intervene before rendition. Provided same-sex couples agree on the division of property, or use some means of alternative dispute resolution or collaborative law to reach an agreement, they can conceivably file a petition for divorce (possibly under initials instead of their full names) then proceed with the prove-up. If the trial court signs off before the attorney general can intervene, then they are divorced under the laws of our State. But, keep in mind that the parties must agree and keep a low profile for this strategy to succeed. Should the parties seek media attention inviting State intervention prior to rendition of the divorce judgment, then the outcome will likely be very different, like In re J.B., from the Dallas Court of Appeals last year.

Hat tip to the Jennifer Cochran for her January 7, 2011 post  “Same Sex Divorce Upheld in Texas”.

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Some of you may have heard about the tragic suicide death of Debie Hackett recently.  Her family drama has been played out in the local media over the past few months regarding the litigation between Ms. Hackett and her former lesbian partner Ms. Ferris. 

Ms. Ferris is the biological parent of the child.  Ms. Hackett sued Ms. Ferris for court-ordered access to the child when their romantic relationship ended.  The trial court initially held that Ms. Hackett had "standing to sue" because she had "actual care, control, and possession" of the child for at least 6 months ending in not less than 90 days before filing the lawsuit.  The Dallas Court of Appeals upheld that ruling.  (See article from The Dallas Voice here.)

But, standing is not the end of the battle, but only the beginning in a suit between a parent and nonparent for court-ordered access to a child.  Once granted standing, the nonparent still has to overcome the constitutionally-protected presumption in favor of a parent's right to make parenting decisions without interference from anyone, including a former romantic partner.  To overcome this high hurdle, the nonparent must prove that the parent's decisions will result in "significant impairment to the child's physical health or emotional development".

In the Hackett v. Ferris case, a jury decided that Ms. Ferris, the parent, was a fit parent, precluding Ms. Hackett from seeking orders related to the child.  I am sure that Ms. Hackett was devastated by this ruling.

Ms. Hackett was, no doubt, bolstered by the judge's grant of standing letting her continue with her case.  But, that just set her up for greater disappointment when she ultimately failed to prevail.

Here's the op-ed piece that I wrote for The Dallas Voice today: 

Learning Lessons From a Tragedy

The death of Debie Hackett was a tragically shocking end to a family drama that has, to some extent, played out in the local Dallas media. Through her experience and even through her tragic death, she has provided an opportunity to educate many who are in similar situations. There seems to be quite a bit of misinformation about her family law case and the litigation that recently ended.

Many people live in families with children that they emotionally consider as “their children”. Knowledge of how the law applies to their relationship with the children in their lives gives power, so even in the midst of this tragedy there is something to be learned.

Texas law has a very specific definition of a “parent”. Texas Family Code defines a parent as:

·   the mother (biological);

·  a man presumed to be the father (because he was married to the mother when the child was born or at the time of conception);

·  a man legally determined to be the father;

·  a man who has been adjudicated to be the father by a court of competent jurisdiction;

·  a man who has acknowledged his paternity under applicable law; or,

·  an adoptive mother or father. 

 

No matter how much love, caring, or emotional bonding exists, if someone does not fall into one of these categories, then they are not a “parent” in the eyes of the Texas courts or legislature.

While a person may feel emotionally connected to a child, the law provides no status for a person who feels-like-a-parent. Even if a person is treated like a parent, or even considered a parent by the child, that person cannot be elevated to the legal status of a parent if she does not meet one of the statutory definitions.

So, you either are a “parent” under the law, entitled to the legal privileges and obligations of a parent, or you are not.

Parents have certain rights that are guaranteed under the United States Constitution as well as the laws of each state. The most fundamental of these rights is the right to make parenting decisions without questioning or interference from those outside the parenting relationship. In other words, as long as the parent makes decisions that are not harmful to the child, the parent has the sanctity to make decisions for the child. Only when a decision can bring harm to a child does the law provide a method of reviewing parental decision making.

The right to make parenting decisions includes the right to decide who the child can be around, spend the night with, and visit. 

This right is fundamental, like the freedom of speech or freedom of religion, and as a result is heavily protected by federal as well as state law, and highly regarded by most of our courts.

So, in Ms. Hackett’s situation, her former partner was the legal parent of the child and had the right to decide whether the child would associate with Ms. Hackett after their break-up. Only by proving that the former partner’s parenting decisions are harmful to the child in a court-at-law would Ms. Hackett have been able to have a court overrule the parent’s decision to exclude Ms. Hackett from the child’s life. The jury trial that Ms. Hackett and her former partner went through in December involved the question of the parent’s fitness in her decision-making. The trial was not about whether the parent versus Ms. Hackett should have custody, what time the child should spend with either of them, who should decide what school the child attends, or even an allocation of child support. 

The jury decided that the parent was a fit parent. That decision precluded Ms. Hackett from seeking any other orders regarding the child, such as the right to visitation over the parent’s objection.

Some believe that the law discriminated against Ms. Hackett because of the nature of their same-sex relationship. However, Ms. Hackett stood in the same position as a heterosexual person that does not meet the legal definition of a parent. The law applies equally to any person that is not a parent seeking to intervene in the parenting relationship.

For example, consider a heterosexual married couple where one member of the couple has a child from a prior relationship. When that couple breaks up, the partner who is not a parent would be in the same situation as Ms. Hackett, left to the parental decision-making of the parent to continue the relationship with the child. Barring proof that the parent is unfit – that her decisions as a parent are harmful to the child – the non-parent would have no right to interfere.

Grandparents often fall into this problem as well. Many grandparents assist in parenting their grandchildren yet cannot seek court ordered access to the grandchild absent proof of parental unfitness.

As a Dallas same-sex custody lawyer, I counsel many non-parents in situations like Ms. Hackett’s.  The most important piece of advice I give them is to adopt their partner’s child while the relationship is good and everyone is on the same page.  Adoption grants the legal status as a parent and the legal rights and constitutional protections that comes with it. This then allows — mandates — a relationship between the adoptive parent and the child after the romantic relationship with the other parent ends.  Without adoption, the law provides no relief from the high hurdle of the parental presumption over which a nonparent must cross to even have the chance of gaining court-ordered conservatorship, possession with and/or access to the child over the legal parent’s objection. 

The current state of Texas law draws no line regarding the gender of the parent or parents a child has. So, a child, by adoption, can have two moms or two dads, provided a judge finds such adoption to be in the child’s best interest. 

Michelle May O’Neil specializes in Texas family law cases and works specifically with gay parents regarding relationship and custody issues. She is the author of two books, All About Texas Law and Kids, published in 2010, and The Basics of Texas Divorce Law, published in 2011. Ms. O’Neil practices law with her firm O’Neil Attorneys in Dallas, Texas.

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