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

Child custody battles are always difficult, and can be ugly. But a recent Dallas child custody dispute shows the lengths that gay parents must go to fight for the right to parent their non-biological children if they split up from the child’s biological parent. In the case fought out in Dallas family law courtrooms, a Texas mother petitioned for custody of a child she had raised since birth with her lesbian partner (the child’s biological mother).

The former partner denied the non-biological parent’s right to child custody and a three-and-a-half year legal battle ensued as the non-biological mother sought to have her parental rights recognized in Texas courts. Ultimately, she was successful on the first hurdle of her child custody battle: the right to sue for child custody (referred to as standing). But after nearly four years of emotional and financial costs, and no guarantee that she would win physical or legal custody rights, the mother decided to end her legal battle. In a statement released to the press, the mother said that she chose her daughter’s quality of life and happiness over being right.

Legal Options for Gay Parents to Maintain Parental Relationships

While recognition of the status of same-sex relationships is advancing state-by-state, same-sex partners (and former partners) still face precarious legal status on many issues including recognition of marriage, civil unions, and partnerships, rights to parent children from a same-sex partnership, inheritance rights, and rights to make end-of-life decisions, among many other civil rights.

In Texas, lesbian and gay parents now have the right to sue for child custody if other Texas courts decide to follow the precedent established by the Texas appeals court in the Dallas same-sex custody case (The Texas Supreme Court denied review of the decision, which gives it more weight). But whether a gay or lesbian parent will be awarded child custody is another matter. In most cases, a gay or lesbian parent will stand on firmer ground if the mother or father adopts the child or children. Adoption gives the non-biological parent a legal recognition of their parental rights. For advice and counsel on this evolving area of the law, consult a Texas family law attorney with experience working with LGBT issues.

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Divorce Decree

After a decision is reached, whether by settlement or trial, a divorce decree is entered.  This is usually a lengthy document that formalizes and finalizes all of the provisions of the divorce - including issues of property division and child custody.  The decree must be drafted very carefully, because, once entered, this agreement will become the rules by which you must live and the document you must turn to if the other party does not do what they are supposed to do.

Entering the divorce decree is the fifth and final step in the divorce proceeding. 

This excerpt is taken from my book, "Basics of Texas Divorce Law" and is intended to educated and assist in understanding the process of divorce in Texas. 

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Trial or Settlement

Not all divorce cases go to trial.  First, after pretrial discovery is over, the spouses will probably be ordered to go on to mediation.  Mediation is a procedure where the parties and their attorneys meets with a neutral thrid-party (usually an experienced family lawyer) to try and negotiate a settlement.  The vast majority of all family law cases are settled prior to trial.

If settlement is not possible, the case will go to a judge or jury.  Either party has the right to request a jury trial on certain issues designated by the Texas Family Code.

Texas is the only state that continues to allow jury trials to determine child custody.  A jury trial may also be held on other issues like character and value of marital property.  The Texas Family Code requires other issues such as a just and right division of the community estate, the possession schedule for children and child support to be determined by the judge.  If a jury is not requested or allowed, then the judge decides all contested issues.

Excerpted from my book, "Basics of Texas Divorce Law"

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The next step in the divorce process is discovery.  This proceedure allows both sides to get the information they need to determine the size of the community estate and to learn the position the other party will take on certain issues.  Discovery can be written or oral.

Written Discovery

There are typically five types of written discovery relevant to a divorce case.

Request for Disclosure: These are standard questions that are asked in every civil suit.  Parties are required to identify persons with information relevant to the case, identify expert witnesses, detail the legal contentions and specify any economic damages.

Interogatories:  One of the most useful pretrial discovery methods, interrogatories are a set of written questions sent to the opposing party that require responses about relevant issues, such as the location of bank accounts, balances in those accounts and signatory privileges on the accounts.  Although almost anything relevant to the case can be asked, the total number of questions is limited to 25.

Request for Production of Documents:  This discovery tool allows a party to request copies of documents relevant to the issues in the case.  Just about any document can be requested.  The most frequently requested items are records reflecting bank accounts, 401(k) plans, stock options, income, gifts to people other than the spouse, safe deposit boxes, telephone records, insurance plans, and credit card statements.

Request for Admission: These are statements that the opposing party must either admit or deny.  If they refuse, they must state a reason why the statements can neither be admitted nor denied.  The person answering these requests will be stuck with the answers, and failure to answer them will result in all of the requests being deemed admitted.

Sworn Inventory and Appraisement: This type of discovery is unique to divorce cases.  It requires the answering party to list every asset he or she knows about.  It also requires the party to characterize the assets as either separate property or community property and to place a value on it.  This document is signed under oath, so a party who deliberately hides assets and keeps them off of the inventory will be subject to punitive remedies from the court.

Oral Discovery

Oral discovery is in the form of depositions.  These are pretrial witness examinations taken under oath in front of a court reporter.  Any witness with information that will affect the case can be deposed.  Under Texas law, the deposition testimony can be presented to the court as if the witness were testifying in person before the court.

The deposition is an incredibly useful tool because it locks the witness into the testimony he or she will give.  The witness cannot come back later and change his or her story regarding a certain event.  If they do this, then the deposition can be used to challenge their truthfulness as a witness.

Excerpted from my book, "Basics of Texas Divorce Law"

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