Can a psychological evaluation in a custody case determine who is lying?

Oftentimes, people going through a custody dispute want to have psychological evaluations to show the judge "who is lying" to the court about some issue or another.  Conversely, some people going through psychological evaluations in a custody case become concerned that the other person will "lie" to the evaluator through charm or outright deception and sway the results of the evaluation.

Dr. John Zervopolous, a noted consultant in the Dallas, Texas area on psychological issues in custody cases, discussed this concern in the June issue of the Section Report newsletter of the State Bar of Texas Family Law Section.  He points out that child custody litigants who undergo psychological evaluations approach court-ordered evaluations in characteristic ways: they are defensive, or self-protective; they gloss over, if not deny, problems; and they often cast their soon-to-be or ex-spouses in a negative light. "When parents view litigation as a high stakes, win-lose gamble, they conform their behaviors towards that end," Dr. Zervopolous notes. 

Sometimes what one parent thinks is a "lie" by the other parent is simply the other parent's perspective of the "truth". In other words, each parent may see a situation very differently and have differing perspectives on what is true or untrue. But, he says, psychologists do not have fool-proof abilities to discern whether people are telling the truth or deceptively shading the truth or outright lying.

No psychological test—even the MMPI-2 and its validity scales—reliably detects lies. Instead, adequately designed validity scales incorporated into tests may broadly reflect the examinee’s “response style” or approach to test questions. Further, the evaluation’s context may affect the examinee’s test response style. For instance, examinees answer test questions as parents in child custody suits, as plaintiffs in sexual harassment lawsuits, or as criminal defendants. Depending on the context, examinees may try to look too well-adjusted, to exaggerate or make up problems, or to reflect accurately their emotional condition. Determining the examinee’s response style and its meaning are the first steps to accurate test interpretation.

Unfortunately, not all tests contain equally reliable or sensitive response style measures. The MMPI-2’s measures, encompassing several validity scales, are comparatively well-developed and provide useful response style information. Yet much of the research supporting these measures is inconclusive. Further, these measures by themselves may not always accurately reflect the examinee’s true approach to the test questions—for instance, a naïve approach to test questions may be mistaken for trying to look too well-adjusted, or a profile that appears to indicate an examinee’s attempts to feign psychological symptoms may actually reflect a “cry for help.”

Compared to the MMPI-2, the response style measures of the MCMI-III and the Personality Assessment Inventory (PAI) are less developed. And response style measures of other tests, composed only of transparent questions that attempt to catch examinees in obvious falsehoods—e.g. “Have you ever told a lie?”—are as useless as tests with no response style measures. Testing without adequate response style measures are vulnerable to evidentiary reliability problems.

Dr. Zervopolous suggests four lines of questions to begin cross-examining experts about test results that inform their opinions:

  1. Do the administered tests assess the examinee’s response style?
  2. If so, how accurately, according to the research, do the tests’ response style measures assess the examinee’s approach to the test questions?
  3. What does the examinee’s measured response style say about her approach to the testing?
  4. How does that approach, then, affect the expert’s test interpretation?

Reliable test interpretation cannot begin without first addressing the response style issue. Answers to these questions will help custody litigants better understand how the expert interpreted test results and how those results informed the expert opinion.

 

What Child Support Covers - And Does NOT Cover

I read an interesting article by Natalie Gregg in Huff Post What Child Support Does Not Cover. It is an all-too-common complaint by the parent paying child support that the other parent “spends the money on him/herself”.  Many paying parents want to put restrictions on what child support can be spent on, to prevent the other parent from personally using the money. While it may seem like child support is being mismanaged to some – and maybe in some cases it is being mismanaged -- Texas law does not support placing restrictions on how child support is spent.  Judges do not want to micro-manage child support expenditures.  That would simply take too much time.  Instead, child support goes “into the pot” so to speak.  Child support obviously covers the child’s direct expenditures, such as clothing, food, and daycare.  But, it also goes to cover a portion of the house the child lives in and the car the parent drives the child around in.

Child support may not actually cover the “extras” for the child, like dance lessons and tutoring.  As a child gets older, she points out, the expenses grow into items like cars and car insurance.  Further, Texas law has no provision for a child’s college expenses, so either a parent has to save for that, or the child will have to bear those costs on his or her own.

Ms. Gregg makes a good point that, when faced with a daughter who wants a new prom dress, a dad isn’t (or shouldn’t) say “that’s what I pay your mom child support for”.  Sometimes children, like a lot of things in life, cost more than you anticipate.

 

Successful Co-Parenting Part II

Last month I discussed “Successful Co-Parenting - Part I”. The Huffington Post recently discussed what actions need to be taken and issues that need to be addressed for two divorced individuals to co-parent.

1. Set Boundaries – In any relationship, not just with your ex-spouse, boundaries must be established. When there is a high-conflict situation, calmer heads do not always prevail. However, you must set limits on what you will and won’t accept or tolerate in a relationship. Setting these limitations will allow you to gain some control back in your life while also setting an example for your children as to how to deal with others.

2. Talk To Your Children –Texas courts prohibit parents from discussing the litigation with their children. Divorce and the actions that go along with it are very adult issues and children have no place in being involved in those adult disputes. Therefore, it is important to speak with your children about the changes that are going on in their life in relation to the divorce without turning the discussion into a he said/she said dialogue about the other parent.

3. Have Consistency Between Two Homes - Most pediatricians, psychologists and counselors agree that consistency is of upmost importance for a child. Life gets in the way. Competing schedules are present in every household in America. It is important to have open lines of communication with your ex-spouse. Parents must be able to discuss events and schedules in a child’s life and be flexible with each other and adjust when those things change.

Is "Conscious Co-Parenting" Possible?

Gwyneth Paltrow brought the term “Conscious Uncoupling” into American’s daily vocabulary and was discussed in my earlier blog. Out of the “Conscious Uncoupling” discussions, the concept of “Conscious Co-Parenting” is also being debated. Neither one of these terms are anything new when it comes to divorces in Texas. For years courts have been advocating for children and the damage that can be caused when there is high-conflict between parents.

The Blog on the Today Show website discusses whether conscious co-parenting is even attainable. Striving to be friends with your ex and working together for the best interest of your children is an admirable goal. However, there are many hurdles to overcome when doing so. First of all, when two people divorce, there is a reason why the marriage ended and those reasons do not magically go away when a divorce is granted.

Communication issues are a prevalent reason for marriages to end. Those communication issues only grow post-divorce. In the Today Show Blog, a divorce parent recommends her personal rule as it pertains to communications with her ex-husband: “Wait to respond to non-emergency texts or calls, anywhere from 30 minutes to 24 hours.” This suggestion enables you to calm down and respond reasonably when things may get heated.

Conscious co-parenting is attainable. There are many sacrifices that both parents must make but in the end, it is what is best for the children.
 

April 15th Is an Important Deadline for Primary Conservators

Not only is April 15th an important deadline for every American when it comes to filing their annual taxes, in Texas April 15th is a deadline for primary conservators to designate their summer weekend possession time with the children.

In a Texas Standard Possession Order, the non-primary parent is awarded the 1st, 3rd, and 5th weekends of the summer months as well as 30 days extended summer possession. The primary parent in turn gets to pick one weekend, which occurs during the non-primary parent’s 30 day extended summer possession, to have the children. This election must be made in writing by April 15th or the primary parent loses the ability to have a weekend period of possession during the other parent’s 30 day extended summer possession.

Additionally, the primary parent gets to pick one of the 1st, 3rd, and 5th weekends during the summer months which would have been the non-primary parent’s weekend, to have possession of the children. The primary parent must elect in writing by April 15th or no later than fourteen days prior to the elected 1st, 3rd, and 5th summer weekend. This weekend period of possession cannot occur during the 30 day extended summer possession of the non-primary parent.

 

 

April 1st Possession Designation is Upon Us

An important deadline contained in Texas divorce decrees in which to designate your intended 30 days of extended summer possession is April 1st.  The Texas Standard Possession Order awards a non-primary parent the 1st, 3rd, and 5th weekends of the summer months as well as 30 days extended summer possession in the summer.  The primary parent in turn gets to pick one of the 1st, 3rd, and 5th weekends, which would have been the non-primary parent’s weekend, to have possession of the children as well as one weekend during the non-primary parent’s 30 days of extended summer possession.

 The Texas Standard Possession Order states that April 1st is the deadline for the non-primary parent to give written notice to the primary parent of their intended dates for their 30 days of extended summer possession.  These 30 days can only be exercised in two periods of possession and each period of possession must be at least seven consecutive days.  Additionally, a parent’s extended summer possession can begin once school is dismissed and must end at least seven days before school resumes at the end of the summer. 


What happens if you miss the April 1st deadline? Should you not designate any extended summer possession dates by April 1st, you will be entitled to July 1 – 31st that summer.

A question that is frequently asked is “can I use a weekend of summer possession in addition to my extended summer possession to make my time with the children 32 days?”  The answer is yes, you can.  However, keep in mind that the primary parent has until April 15th each year to designate a weekend period of possession that will occur during your regular 1st, 3rd, and 5th weekend as well as a weekend during your extended summer possession.

 

Successful Co-Parenting - Part I

This is the first of many blogs to come regarding successful co-parenting. Whether you are going through a divorce in Texas involving children or whether you are modifying the terms of a Texas custody order, co-parenting is fundamental when raising a child in two homes.

Effective communication between parents is essential in a co-parenting relationship. In this age of technology, most parents communicate schedules and activities pertaining to their children via e-mail and/or text message. While lawyers advise their clients to communicate with their ex in writing, emails and text messages are not an appropriate forum to have discussions and dialogues regarding your child. All too often, messages and tone can be misinterpreted in an e-mail or text message.

The Huffington Post recently had an article entitled “The 1 Email Successful People Never Send.” The article discusses super-successful people and the fact that those people never send a long email. After reading this article, I could not help but think how beneficial this information would be to all my clients struggling to co-parent with their ex-spouse.

This article suggests three tips when it comes to drafting an e-mail:

“1. People don't need as much background information as you think they do. It might seem essential to you, but it actually seems superfluous to the email recipient. They'd rather you get to the information and request more quickly, and then they can ask you to fill in any holes in their knowledge later.

2. Don't waste your subject line. In many email services, including Gmail, just the subject line and first line or two is visible in the recipient's inbox. Why make the subject "Hi" when it could be "Dinner on Thursday?" Give the recipient an idea of what the email contains and a good reason to click on it.

3. Just because your email is short, that doesn't mean it has to be rude. "No matter how short your emails, there is a way to inject a friendly, cheery note, and don't forget to do that. Short doesn't mean that it's okay to go around barking orders," Schwalbe says.”
 

The Effect of Divorce on Children

Many parents going through a divorce in Texas are unaware of the impact the divorce has had on their own children. An article by the Huffington Post discussed a survey performed by a U.K. parenting website Netmums.com on 1,000 parents and 100 children regarding their views and the effects of divorce.

“One-third of the children under 18 surveyed described being ‘devastated’ by the divorce and 13 percent blamed themselves for their own parents’ divorce. Thirty-nine percent of the kids surveyed said they hide their feelings about the split from their parents, 20 percent said there's no use communicating because their parents are too ‘wrapped up in themselves’ and 14 percent said they couldn't be honest with their parents about how upset they felt.”

There was a stark contrast of the parents’ opinions as to how children were coping as compared to the feelings of those of the children surveyed. 77 percent of parents said their children were coping fine with the split.

Courts in Texas use many tools to aid families in need. The most widely used activity would be a co-parenting class. Some counties require both parents attend a co-parenting class before their divorce may be finalized. Co-parenting classes are even offered on the internet.

In higher conflict cases, a parenting facilitator or parenting coordinator is appointed. The purpose of a parenting facilitator and parenting coordinator is to aid parents on decisions and communications as it pertains to the children. Should the parents be unable to agree, the parenting facilitator/coordinator will assist the parents with disagreements and work towards agreements and resolutions on those differences.
 

Would Marc Anthony Be Required To Pay More Child Support in Texas?

As reported by the Huffington Post, Marc Anthony’s ex-wife, Dayanara Torres, is taking him back to Court and requesting that a Judge order him to pay more child support for their two children. Dayanara is requesting Marc Anthony’s child support obligation be increased from $13,000 per month to $112,000 per month. She is citing his child support arrangement with his ex-wife Jennifer Lopez as one of the reasons why his monthly child support should be increased.

If Dayanara and Marc lived in Texas, Dayanara would be entitled to a modification of child support two ways:

There has been a material and substantial change in circumstances since the last court order regarding child support.

At least three years have passed since the last court order regarding child support.
Dayanara could cite a number of things to meet the burden of a “material and substantial change of circumstances.” At the time of Dayanara and Marc Anthony’s divorce in 2004, the singer claimed he was having “money troubles.” Fast forward nine years, Marc Anthony allegedly earns $1.25 million a month. If Dayanara can prove that Marc Anthony is making more money now than when the couple divorced, she will have met the burden of a “material and substantial change of circumstances” and his child support would be modified according to his new level of income.

In Texas if three years have passed since the last court order regarding child support, Dayanara would be entitled to an automatic review of Marc Anthony’s child support obligation. Because three years have passed since the last court order regarding child support, Dayanara would not be required to meet the burden of a “material and substantial change of circumstances.”
 

Could Your Possession Schedule Be Hurting Your Children?

Parents in Texas, absent family violence or child abuse, harm or neglect, are entitled to at a minimum a possession schedule with their children called the Standard Possession Schedule. Each state has its own version of a “Standard Possession Order.”

The Texas Standard Possession Schedule allows the non-primary parent to have possession of the child at a minimum on the 1st, 3rd, and 5th weekends of the month beginning at 6 pm on Fridays and ending at 6pm on Sundays, Thursdays during the school year from 6 pm – 8 pm, and 30 days in the summer. Additionally, parents alternate having possession of the child during Spring Break, Thanksgiving, Christmas, and New Year holidays. More and more often, parents who live close in proximity are agreeing to 50/50 possession schedules which entitle each parent to possession of the child ½ of the time.

Recently, Yahoo profiled the possession schedule of the infant twins of David Tutera and his estranged partner, Ryan Jurica. The twins were delivered via surrogate in July, 2013. One of the infant twins is the biological child of David Tutera and the other infant twin is the biological child of Ryan Jurica. Recently, Mr. Tutera and Mr. Jurica announced that they will “split custody” of the infant twins. Split custody means that siblings are separated and one child goes to one parent and the other child goes to the other parent. In this situation, Mr. Tutera will have custody of his biological twin child and Mr. Jurica will have custody of his biological twin child. Mr. Tutera has defended this decision and states he intends to have his child know her twin. However, the current possession schedule does not provide for the twins to be raised together in the same home.

Most experts agree that splitting up siblings, whether they are half or full siblings, is not in a child’s best interest. The sibling relationship is an important one. Children need their siblings to connect with and grow together. The bottom line is the younger the children, the less likely a Court in Texas will allow the children to be split apart. Therefore, it is important to research different possession schedules and what experts recommend when deciding what schedule is best for children and their relationships with the family unit as a whole.

Mister Rogers talked about divorce

Following up on yesterday’s post about Children and Divorce, I was reminded that Mister Rogers, the uber-respected man from my childhood, talked about divorce and children. He says, "I know a little girl and a little boy whose mother and father got a divorce and those children cried and cried," he says. "Do you know why? Well, one reason was they thought it was all their fault -- but of course it wasn't their fault." Watch his episode here: Mister Rogers’ Neighborhood Divorce. It’s quality tv.

Hat Tip: Huff Post Divorce
 

Texas Maximum Child Support Cap Is Changing September 1, 2013

Currently, there is a cap in the monthly net resources used when calculating child support in Texas. The current child support cap in Texas is $7,500.00 net monthly resources per month. Depending on the number of children involved, the monthly net resources are then multiplied by a percentage for the number of children a parent has a duty to support as represented below.



Beginning September 1, 2013, the cap in the monthly net resources used when calculating child support will be increased to $8,550.00 per month. This change will affect any and all cases filed after September 1, 2013 as well as cases that are pending as of September 1, 2013. Therefore, if you are finalizing your child support case prior to September 1, 2013 and your monthly net resources exceed $7,500.00 per month, you should consider modifying your child support to be in compliance with the new law in order to save yourself from a future modification of child support.
 

A Journey for a Texas Father to Bring Home His Kidnapped Daughters from Russia

 

It was May 29, 2008, a day I will never forget. I was representing Royce Sigler in his divorce action and two months prior we had obtained him temporary primary conservatorship of his two daughters, Tanya age 6, and Ksneya age 4. His Wife, Katya, was a Russian citizen and when the children were born here in Texas, she obtained dual citizenship for both girls.

It was always a concern that Katya Sigler would abduct the girls. Prior to and after the temporary orders hearing, Katya threatened to abduct the children if Royce ever tried to obtain custody of them. At multiple hearings, we obtained every kind of injunction against her leaving the area, the state and the country with the children. Royce even had possession of the children’s US and Russian passports and birth certificates.

It was Memorial Day weekend 2008 and it was Katya’s weekend period of possession of the children. When Royce went to pick up the children at the end of the weekend, no one was home at their Mother’s residence. Royce called Katya, her neighbors and mutual friends and no one knew where they were. Memorial Day evening I received a frantic call from Royce that his children were not at their Mother’s home when he went to pick them up.

The next 48 hours seem like a blur. Royce contacted their travel agent and learned that three days prior, Katya had purchased three one-way airline tickets to Sochi, Russia. We were up until all hours of the night contacting the airlines, the US State Department, and the US Embassy in Russia to determine what had happened to the children and how we were going to get them back. Even Katya’s attorney did not know where she was. As the days unfolded, we learned that there was nothing our government could do to have the children returned to the United States. Russia is not a member of the Hague Convention which is an international treaty between multiple nations where countries that are members of this Convention will aid in the return of a child who has been abducted by a parent or family member. Despite the fact that Royce had possession of both the US and Russian passports and the children’s birth certificates, because of the children’s dual citizenship, there was nothing the US government could have done to prevent Katya from obtaining new Russian passports for the children.
Katya had in fact returned to her home of Sochi, Russia and she and the girls were living with Katya’s mother. Katya contacted Royce a few times over the next few months to ask him for money. Each time she spoke with him she refused to let him speak to the children. Katya told him he would never see the girls and if he tried to go to Russia and get them, she would have him arrested. She even alluded to having mafia ties in Sochi.

Five years have passed and Royce has only spoken to his two children for less than 5 minutes. Earlier this month, the United States Embassy contacted Royce to let him know that Katya Sigler had passed away of cancer and under Russian law, he now has custody of the children. He has been given one month to go and get his children or they will be placed in an orphanage. Royce has obtained legal representation in Russia. Katya’s mother is refusing to turn over the girls and is threatening to kidnap them. The girls are now 11 and 9 years old and have not seen their Father in over five years. There is no telling what these children have been told about their Father and there is concern as to whether they will want to return to the United States.

Royce is headed to Russia on July 1, 2013 to retrieve the children. This has been a long road for the Sigler family and there are still many obstacles to overcome. Royce has had to incur costs for a Russian Visa, airline tickets, lodging, legal representation as well as many more unforeseen costs in the future. It has also been recommended that he have an escort in Russia with him at all times as well as a translator.
Royce is hopeful that his children will remember him when he sees them and will recall the love that they shared.

If you would like to follow the Sigler family’s journey, you may do so at Support for the Sigler Sisters – Coming Back Home to America.
 

The Right of First Refusal - Is It Really in the Child's Best Interest?

What exactly is the Right of First Refusal? The Right of First Refusal requires a parent in possession of the children to notify the other parent if they are going to be away from the children for a certain extended period of time while in possession of the children. This allows the parent not in possession of the children the ability to have the children in lieu of the other parent having someone else watch the children.

Generally, in Texas the Right of First Refusal is an agreed upon provision in a final order involving children as it is not a specific law found in the Texas Family Code. I have seen different variations of the Right of First Refusal depending upon the situation. For example, the time period stated that a parent will be away from the child and therefore must notify the other parent can range from four hours, to overnight, to a certain period of days. Some provisions state that the Right of First Refusal is not invoked if the child is in the care of a family member or at a friend’s sleep over.

As reported by Fearless Fathers, Illinois is in the process of trying to pass a law that makes the Right of First Refusal mandatory in all cases involving children. In my experience, a Right of First Refusal provision can create many issues in the co-parenting relationship that can in turn make the Right of First Refusal unworkable. It is important to fully explain to clients how the Right of First Refusal works as well as give clients examples of present day situations that would invoke a Right of First Refusal.

Here is an example I always give to clients considering a mutual Right of First Refusal:

“What if during your one month summer period of possession you would like to send your children to stay with your parents for a week? It seems reasonable doesn’t it? However, if your Right of First Refusal states that it will be invoked if you are going to be away from your children overnight, the provision does not permit you to have your children stay with your parents if you are not going to be present. Therefore, it is important to state that the provision does not apply in situations in which a family member is watching the children.”

This same example can also be used if you want to send your child to summer camp. The Right of First Refusal would not permit this absent the other parent’s agreement. Therefore, it is imperative to explain to a client all the different situations that can arise in regular day to day life and how the Right of First Refusal can affect how a parent will have to handle those situations.
 

Co-Parenting

Before, during and after divorce, parents struggle the most with effective co-parenting with their spouse or ex-spouse. When going through a divorce in Texas, the most important thing a parent can do for their child is to continue to communicate with their ex-spouse and foster their child’s relationship with the other parent.

If custody is at issue, I tell my clients that the most important action a Judge can see is co-parenting. No matter what issues arose during the marriage or what precipitated the divorce, a parent must co-parent with their ex-spouse. Effective co-parenting consists of all types of actions. Examples include keeping the other parent apprised of the events in the child’s life, communicating regarding medical or psychological issues before, during and after medical treatment, nurturing a relationship with your child and ex-spouse.

Divorcemag.com has an excellent article that provides advice for effective co-parenting. This article gives numerous examples of issues that come about post-divorce or separation between parents and provides guidance on how to handle those issues.

Even if one parent refuses to communicate with the ex-spouse, a Judge will notice and appreciate the efforts made by the co-parenting/communicating parent. Those efforts will show a Judge how he/she can anticipate each parent will work with the other parent regarding all the types of situations that arise in a child’s life. Therefore, most of the orders issued by a Judge will stem from effective or ineffective co-parenting
 

Co-Parenting Is Not Just an Idea, It Is a Necessity

Before, during and after divorce, parents struggle the most with effective co-parenting with their spouse or ex-spouse. When going through a divorce in Texas, the most important thing a parent can do for their child is to continue to communicate with their ex-spouse and foster their child’s relationship with the other parent.

If custody is at issue, I tell my clients that the most important action a Judge can see is co-parenting. No matter what issues arose during the marriage or what precipitated the divorce, a parent must co-parent with their ex-spouse. Effective co-parenting consists of all types of actions. Examples include keeping the other parent apprised of the events in the child’s life, communicating regarding medical or psychological issues before, during and after medical treatment, nurturing a relationship with your child and ex-spouse.

Divorcemag.com has an excellent article that provides advice for effective co-parenting. This article gives numerous examples of issues that come about post-divorce or separation between parents and provides guidance on how to handle those issues.

Even if one parent refuses to communicate with the ex-spouse, a Judge will notice and appreciate the efforts made by the co-parenting/communicating parent. Those efforts will show a Judge how he/she can anticipate each parent will work with the other parent regarding all the types of situations that arise in a child’s life. Therefore, most of the orders issued by a Judge will stem from effective or ineffective co-parenting.
 

Your Social Study Interview:

During the social study evaluation process, the social study evaluator will conduct personal interviews with each parent and the children. The social study evaluator should interview each child individually outside of the presence of the parents. Additionally, the social study evaluator should interview each parent individually (individual interview). Finally, the social study evaluator should interview the child/children with each parent (group interview). These interviews could all take place on the same day.

The purpose of these interviews is for the social study evaluator to ask any questions of the parents and/or the children out of the hearing of the other. Another purpose of these interviews is for the social study evaluator to gain insight regarding the parent-child relationship of each parent and the children through personal observation of the parents and the child. It is important to prepare for both your individual interview and your group interview with the social study evaluator. These interviews are your opportunity to allow the social study evaluator to observe your parenting abilities and skills first hand. Therefore, although this process may seem a bit unnatural, it is important that you engage with your children during these interviews as you do on a daily basis. Generally, the group interview, if not all of the interviews, will take place during the home visit portion of the social study process.

The “Home Visit”:

The Texas Family Code requires that the social study evaluator conduct an evaluation of the home environment of each party in a custody dispute, unless the court order states that the home environment is not an issue being disputed. I will refer to this portion of the social study process as the “home visit.”

The social study evaluator will let you know the date and time that the home visit will occur. Make sure that you have an activity planned during this time, so that that social study evaluator has the opportunity to observe you interacting with your children. If the home visit is to occur during breakfast or lunch, then go ahead and proceed with your normal breakfast/lunch routine with your children. If the home visit is scheduled to occur during mid-morning or early afternoon, then consider playing a board game or doing homework with your children during this time. Do not just sit on the couch with your children staring at the social study evaluator. Keep in mind this will likely be your only opportunity for the social study evaluator to personally observe you with your children.

Finally, the social study evaluator must also conduct a personal interview of any and all persons that reside in the residence the subject of the social study. Therefore, if you have a roommate or relative residing with you, then they will also undergo a personal interview with the social study evaluator during this process.

 

Another Facebook no-no: Don't call your child an asshole on Facebook

Okay, really, you shouldn’t call your child an asshole ever.  But, one Mom in New York used Facebook to insult and demean her child, who was 10 years old at the time, by calling him an “asshole” among other things. She defensively felt this was appropriate because “that’s what he is”. She thought it was important for her friends (HER friends?) to know that about her child.  The Father sued for sole custody of all three of the parties’ children.  Based on the Mom’s inappropriate use of social media regarding her children, her lack of insight as to the effects of her behavior on the children, as well as some allegations of physical abuse, the Judge granted the Father sole custody.  The Judge also issued an order prohibiting the parents from posting any communications to or about the children on any social network site. 

I’m sure there is much more to this story than just one instance of bad behavior.  It sounds like, from the opinion, that the Mom was inappropriate in many ways, including physical abuse, verbal abuse, and failing to attend to the child’s health needs.  So, it should come as no surprise that she lost custody.  The real take-away here is that the Judge’s decision to restrict the Mom’s “freedom of expression” on social media in consideration of the best interest of the child was upheld by the appellate courts. We often think that we can say what we want, when we want, and where we want, especially if it is true (as this Mom says, it is what he is).  But, when it comes to a Judge presiding over the best interest of the children, that freedom of expression can be limited.  A judge can limit a parent’s ability to post on social media.  A judge can limit a parent’s ability to speak disparagingly about the other parent in front of the child.  A judge can limit a parent’s ability to speak to the child’s teachers, doctors, or other providers in a way that interferes with the child getting help.  All of these limitations may be in a child’s best interest.  And, they are not in violation of the parent’s “right” to free speech. 

Read about the New York case in Neil Cahn’s blog post Here or the actual court opinion In the Matter of Melody M v. Robert M here.

 

Divorced parent rights in the aftermath of a tragedy

As if tragedy isn’t enough…. Today I read a post on Facebook from a Mom whose son lives with his Dad in Oklahoma. She can’t contact either of them after the tornado and is frantic. I know nothing more about these folks than what I read on Facebook. I’m not friends with her, but merely read a post that was shared through a friend of a friend. But, my heart breaks for her. We put provisions in custody orders that “require” notice to the other parent within certain short amounts of time. We give parents the right to be named as emergency contacts. But nothing that we draft can help the panic of a parent wanting to make sure a child is safe and healthy in a time of tragedy.

This mom commented later in the thread that she couldn’t contact the Dad even through Facebook because he had her blocked. She seemed frantic, as any parent would be. The good outcome is that through Facebook and the magic of social media, the comments thread shows that someone knew the Dad and confirmed that they are ok.

A decent ending, all things considered.

To me, the message to parents in split custody situations should be, whether you like the other parent or not, whether you can stand to talk to them or not, whether they somehow violate boundaries on Facebook or not, every parent should reach out during a tragedy and let the other parent know the child is safe and sound. Think of how you might feel in the same situation. Court orders can require parents to do the right thing, but those documents are an empty consolation when it is actually time to put the right action in to place.
 

Completing Your Social Study Questionnaire:

There are many aspects to a social study evaluation. You can expect a typical social study evaluation to take from 8 to 18 months to complete. During this time period, the social study evaluator will review information provided by each party, including but not limited to collateral witnesses and documentation (this could include review of medical records, school records, police reports, etc.), references and reference letters, personal history questionnaires, and other written information. In addition to written information, the social study evaluator will also interview and observe both parents and the children, separately and with each parent.

During the social study process, you will be asked to complete written documentation and provide the same to the social study evaluator. You will be asked to provide information regarding your childhood upbringing, educational history, medical history, parenting strengths and weaknesses, concerns regarding the other parent, and other relevant information requested by the social study evaluator. You will also be required to disclose your prior criminal history, medical history, and substance abuse history. It is important to be candid when providing this information to the social study evaluator. If you have a “past” to disclose, regardless of how distant it may be, you should err on the side of disclosing too much rather than too little. My advice is that when completing your social study questionnaire, you should be the person to disclose any “skeletons in your closet.” It is better for this information to come from you rather than the other party. No one has had perfect past.

I generally advise clients to complete the questionnaire by themselves initially. At some point prior to returning this information to the social study evaluator it is best to have your attorney review the information for any errors, etc. Keep in mind that this is your opportunity to provide the social study evaluator with information relating to the support system, including family and friends that will be assisting you with your journey as a “single parent.”

This is also your opportunity to indicate to the social study evaluator your desires regarding parenting time with your children. If you desire to be the primary conservator of the children and/or if you desire to have equal parenting time with the other parent, then now is the time to tell the social study evaluator. In doing so, you must have a solid plan for how you intend to provide your child/children with a stable and consistent home environment while in your care. You need to have a plan for how you are going to provide for the children financially, emotionally, and mentally. Tell the social study evaluator how you plan to get them to and from school/extracurricular activities on a daily basis. Additionally, you should provide the social study evaluator with information relating to how you plan to meet their medical and educational needs. It is not enough to say that you want to be the primary conservator or share parenting time with the other parent. You must have a plan and be prepared to discuss it. This means knowing your children’s medical, educational, and emotional needs.
 

What you Need to Know to Be Prepared for a Social Study Evaluation-

References and Reference Letters: During your social study evaluation, you will be required to submit reference letters to the social study evaluator. The number of personal references and reference letters requested can range from 3 or more. The following are some points to keep in mind when deciding who your references should be and what the focus of the reference letters should be.

1. DO NOT have family members serve as all of your references. Although family members as references can be helpful, generally family members are thought to be more biased for obvious reasons. The purpose of providing your references in a social study evaluation is so that the social study evaluator can obtain information regarding your parenting skills and involvement from as many difference sources as possible. Therefore, school teachers, babysitters, neighbors, friends, and/or co-workers can serve as excellent references. They tend to be thought of as more neutral.

2. DO NOT submit more personal references and/or reference letters than requested by the social study evaluator. Doing so would illustrate that you cannot follow instructions. If you have more references that you would like to submit, then advise the social study evaluator that you have more, and request his/her permission to submit more references.

3. DO contact your personal references and let them know that they may be contacted by your social study evaluator. Make sure that your references know the name of the social study evaluator assigned to your case. Generally, the social study evaluator will mail a reference questionnaire directly to the references that you listed in your initial paperwork. However, you do want to let your references know to expect a letter in the mail, email, or possibly a phone call from your social study evaluator.

4. DO make sure that your reference letters are completed and returned to the social study evaluator by the deadline. The social study evaluator will let you and your references know when he/she would like the completed reference letters.

5. DO make sure to inform your personal references that the point of them completing these letters is to discuss your character, but more importantly to discuss your strengths as a parent. In my opinion, this is a task that can be easily completed by having your references write about their personal observations of you interacting with your children. For example, your interaction with your children at soccer games, school functions, medical appointments, etc.

6. DO NOT have your personal references include negative attributes about the other parent involved in the social study evaluation. These reference letters are your opportunity to have people build you up as a parent and to discuss your strengths as a parent. Many social study evaluators will set a page limit for the reference letter. Do not let your references spend their valuable space disparaging the other parent. There is a time and place for everything. You will have the opportunity to discuss your concerns about the other parent during the social study evaluation. However, reference letters are not the time or the place.

Parental Alienation Awareness Organization

PAAO
Parental Alienation Awareness Organization
Founders of
Parental Alienation Awareness Day (April 25)

According to the Parental Alienation Awareness Organization, parental alienation involves the mental manipulation and/or bullying of the child to pick between their mother or father. These behaviors can also result in destroying a loving and warm relationship they once shared with a parent. Parental alienation deprives children of their right to be loved by and showing love for both of their parents and extended family. Parental Alienation can occur in intact families, but is mostly seen in separated and divorced families.

Parents/guardians using alienation tactics to hurt the other 'target' parent have been compared to cult leaders. They deny access to anything that may challenge their view of the other parent, including any photographs, or communication.

Parental alienation syndrome (PAS) is a psychological condition most often observed in children affected by high conflict divorce and/or separation. It is one of the most damaging outcomes affecting children as a result of exposure to PA. The most common symptom of children affected by PAS is their severe opposition to contact with one parent and/or overt hatred toward such parent when there is little and often, no logical reason to explain the child's behavior. The effects of PAS can last well into adulthood and may last for a lifetime with tragic consequences.

Parental Alienation Syndrome (PAS) is different from Parental Alienation (PA). PAS refers to the behaviors of the child, whereas PA describes the abusive behaviors of a parent or caregiver. There are many debates as to whether PAS exists or is 'Junk Science'.

During the crisis of divorce, most parents fear whether their children will emerge unscathed. Any reasonable and empathetic parent sincerely believes in the value of his or her children having a healthy relationship with both parents. Ideally, parents deliberately work on comforting and reassuring the children that no harm will come to them. At the same time, both try to strengthen their parent-child relationships without degrading the other parent or causing the children to feel divided loyalty. They encourage visits, talk kindly of the other parent in the children's presence, and set aside their own negative feelings to avoid causing the children distress. They are sensitive to the children's needs and encourage positive feelings toward the other parent. This outcome is the goal.

However, any number of events can destroy the fragile balance of peace between parents. If this happens, an injured parent may seek comfort by aligning with the children, especially since be or she may feel threatened by the children's love for the other parent. A pattern of alienation usually begins without any malicious or conscious intent to harm or destroy the relationship between the other parent and the children. Though most parents mean well, they are often unaware of how subtle behaviors and comments can hurt the relationship between the children and the targeted parent. Alienating parents however learn how to manipulate and use their children to hurt the other parent on purpose, and with a vengeance. This can include anything from outright telling the children their other parent does not love them and does not want to be with them, to destroying and hiding communication from the other parent, to simply refusing to act as a 'parent' when a child does not want to spend time with, or is rude to, the other, and empowering their child to do as they wish.

Early signs of parental alienation include:

• Children perceive one parent as causing financial problems of the other parent;
• Children appear to have knowledge of details relating to the legal aspects of the divorce     or separation;
• Children show sudden negative change in their attitude toward a parent/guardian;
• Children appear uneasy around target parent - they resort to "one word" answers and fail to engage openly in conversations as they previously have done;
• Children are uncharacteristically rude and/or belligerent to target parent;
• Access time is not occurring as agreed upon or court ordered - visitation is being unilaterally cut back by the other parent;
• Parent undermines the other parent or speaks disparagingly about other parent in the presence of the children;
• Parent starts making reference to other parent as being abusive and a risk to the children with no apparent good reason;
• Allowing children to choose whether or not to visit a parent, even though the court has not empowered the parent or children to make that choice;
• Telling the children about why the marriage failed and giving them the details about the divorce or separation settlement;
• Refusing the other parent access to medical and school records or schedules of extracurricular activities;
• Blaming the other parent for not having enough money, changes in lifestyle, or other problems in the children's presence;
• Rigid enforcement of the visitation schedule for no good reason other than getting back at the other parent;
• False allegations of sexual abuse, drug and alcohol use or other illegal activities by the other parent;
• Asks the children to choose one parent over the other;
• Reminding the children that the children have good reason to feel angry toward their other parent;
• Setting up temptations that interfere with visitation;
• Giving the children the impression that having a good time on a visit will hurt the parent;
• Asking the children about the other parent's personal life;
• 'Rescuing' the children from the other parent when there is no danger.

Participating in parental alienation can be devastating from the perspective of custody litigation. If a judge finds that a parent is attempting to alienate a child, it may result in the alienating parent having custody completely taken away.

What you Need to Know to Be Prepared for a Social Study Evaluation

Social Study Evaluators:

Texas courts generally order a social study evaluation at the temporary orders hearing in cases where conservatorship or possession of or access to a child is being contested. If the parties are unable to agree on a social study evaluator, then the Court will appoint a social study evaluator. Once a social study evaluator has been appointed, do your research on the person appointed to complete your social study evaluation. The Texas Family Code contains specific minimum qualifications for social study evaluators in Texas. Most social study evaluators in Texas have a human services/mental health background. The qualifications of social study evaluators in Texas can include licensed professional social workers, licensed professional counselors, and psychologists. It is important to know who your audience is when getting ready to participate in your social study evaluation, so be sure to research the evaluator appointed in your case. You can search the state licensing board that governs the social study evaluator appointed in your case to familiarize yourself with their professional standards and ethics. For example, the Texas Administrative Code contains the professional standards for most mental health professionals. It could also be helpful to search the internet and/or review his or her résumé.

Next week I will outline the documents and information that you need to obtain in preparation of your initial interview with your social study evaluator. I will also provide a list of “do’s” and “don’ts” as it relates to reference letters and your initial social study interview.
 

How does the DSM-V effect family law litigation?

Today, I wanted to share an article that I received from Dr. John Zervopoulos, a board certified forensic psychologist and lawyer with Psychology Law Partners.  We often hire Dr. Z to consult with us when we have mental health issues involved in a child custody case.  Dr. Z will help navigate through the mental health issues and steer the attorney in preparing for litigation on those issues.  Because he is a lawyer and a psychologist, he understands the litigation process and how mental health evidence affects a case, especially a child custody case.

So, here's what Dr. Z has to say about the DSM-V coming out in May (read more about the DSM-V at its website):

WILL DSM-5 CHANGE EXPERT TESTIMONY?

Bipolar Disorder. Narcissistic and Histrionic Personality Disorders. These diagnoses from DSM-IV-TR quickly catch a judge’s or jury’s ear—and raise concerns. DSM-5, the next revision, is scheduled to be published in May. Revisions portend changes, and DSM-5 promises them—adding diagnoses, recasting some, dropping others. For example, Narcissistic Personality Disorder is expected to remain; Histrionic Personality Disorder won’t make the cut. Controversy among mental health professionals abounds.

Nevertheless, too many mental health experts will continue to misuse DSM diagnoses in the same way—as broad-brush, professional “stamps of approval” that substitute for clear, trustworthy testimony. The most common misuse occurs when an expert attaches diagnostic criteria to cherry-picked events from a litigant’s life or to selected test responses of the litigant.

Three foundational DSM-IV principles sure to survive in DSM-5 offer useful starting points for questions to experts who insist on basing their testimony primarily on diagnoses rather than on relevant documented behaviors tied to parenting demands or other capacities at issue in the case:

• The DSM-IV-TR was developed for “clinical, research, and educational purposes”—not for legal purposes. (Introduction, at xxiii).

• The DSM-IV-TR requires that mental health professionals exercise clinical judgment when interpreting and counting criteria that comprise a diagnosis. Diagnostic criteria “are meant to serve as guidelines . . . not meant to be used in a cookbook fashion.” (Introduction, at xxxii).

• The DSM-IV-TR cautions about using diagnoses in court, noting that “there are significant risks that diagnostic information will be misused or misunderstood . . . because of the imperfect fit between questions of ultimate concern to the law and the information contained in clinical diagnoses.” Further, “It is precisely because impairments, abilities, and disabilities vary widely within each diagnostic category that assignment of a particular diagnosis does not imply a specific level of impairment or disability.” (Introduction, at xxxii-xxxiii).

Whether DSM-IV or DSM-5, the basics of expert testimony still apply: “It is not so simply because an expert says it is so.” Gammill v. Jack Williams Chevrolet, Inc., 972 S.W. 713, 726 (Tex. 1998). If the expert invokes a DSM diagnosis, challenge the expert to specify why the diagnosis is relevant, the basis for the diagnosis, and how the diagnosis compromises the litigant’s functioning in matters of concern to the court.

Reference: John A. Zervopoulos, How to Examine Mental Health Experts 155-162 (2013).
 

What you Need to Know to Be Prepared for a Social Study Evaluation:

Most Texas courts will order a social study evaluation to be completed if conservatorship (custody) or possession of and access to a child are being contested. The Texas Family Code contains specific requirements for completion of a social study evaluation. It is important to be knowledgeable about the process of a social study evaluation. In Texas custody cases, the recommendations contained within a social study evaluation carry a great deal of weight with the Court. Many custody cases can be won or lost based upon these recommendations. As with all aspects of custody litigation, it is important to be prepared for what comes next in the process.

A thorough social study evaluation can take anywhere from 12 to 18 months to complete. During this time, the social study evaluator will conduct individual interviews with both parties to the case, joint interviews with each party and the child, and individual interviews with the child. The social study evaluator will request that each parent submit several references to be consulted regarding his/her parenting skills and involvement with the children. The social study evaluator will also conduct an in-home interview at each parent’s residence during this process. The social study evaluator will also consult with relevant collateral resources, such as school teachers, counselors, and healthcare providers. Once the social study evaluator has completed the evaluation he/she will prepare a written report detailing his/her findings and recommendations. These recommendations can include: which parent should be the primary conservator of the child, the residency restriction on the primary residence of the child, and the possession and access schedule for both parents. Although the Court is not bound by these recommendations they can be very persuasive evidence for the Court.

Over the next several weeks, I will outline the requirements of a social study evaluation pursuant to the Texas Family Code. I will also provide information that may be helpful to anyone that will be participating in a social study evaluation in Texas.
 

Having Another Child Will Affect Your Child Support in Texas

As reported by the Huffington Post on Friday, April 5, 2013, Halle Berry is expecting her second child (the father is Olivier Martinez). Halle Berry has a five year old child, Nahla, from a previous relationship with Gabriel Aubry. Reportedly, Halle Berry pays child support to Gabriel Aubry. However, with the birth of a second child, Halle Berry may seek a reduction in child support.

In Texas, when the parent who has a child support obligation has another child, the parent paying child support is entitled to a modification of their child support obligation. The legal burden to modify a person’s child support is a “material and substantial change in circumstances.” When there is a birth of another child, the percentage of a parent’s monthly net income for child support purposes changes.

If Halle Berry were paying child support to Gabriel Aubrey in Texas, her child support obligation would be 20% of her monthly net income ($7,500.00 is the maximum for monthly net income) plus the cost of the child’s monthly health insurance premium. Once her second child is born, Texas recognizes the fact that Halle would have another child to support. Therefore, the percentage of her monthly net income for child support would change from 20% to 17.5% per month.

It is important to remember that these changes in percentages and thus the monthly child support obligation only changes when a person obtains a new Court order that changes their monthly child support obligation

 

Lamar Odom Tricky Custody Battle

As reported by the New York Post, Lamar Odom and the mother of his two children, Liza Morales, are in the middle of a custody battle.  These parents are fighting over possession schedules, child support and whether the children can be permitted to be shown on each parent’s respective reality TV shows.  Lamar Odom, the husband of Khloe Kardashian, appears on “Keeping Up with the Kardashians” and Liza Morales has appeared on three episodes of Starter Wives Confidential.”

The custody dispute began in 2011 when Lamar Odom filed suit for a modification of the possession schedule with his children as well as modifying his child support obligation.  Liza Morales and their two children live in New York City and Lamar Odom resides in Los Angeles. 

If this case were to have been filed in Texas, Lamar would have the legal burden of showing that there had been a material and substantial change in circumstances since the prior Court order to be entitled to seek a modification of child support and the possession schedule.  Since he filed his lawsuit, Lamar Odom has married Khloe Kardashian, appeared in his own reality TV show, and signed a lucrative deal with the LA Clippers.  It is reported that Lamar Odom wants to have his children shown on his reality TV show and Liza Morales is not in agreement.  In Texas, Lamar Odom would have the burden of showing that the children’s appearance on reality TV is in their “best interest.”

One must wonder how seriously Lamar Odom is taking these custody proceedings.  In Touch Weekly published pictures of Lamar Odom sleeping outside of the courtroom on March 6, 2013 during a custody hearing.  I can almost guarantee that the Judge of his case found out about this incident as not only were pictures published nationwide of Lamar’s napping in the hallway of the courthouse, but an officer of the court had to awaken Mr. Odom to make sure he was ok.

 

Breaking Down the Sanders Divorce: Parenting Time and Possession Schedules in Texas

As discussed in my blog yesterday, on March 12, 2013, a Texas jury in the Deion and Pilar Sanders divorce ruled that Deion Sanders would have Sole Managing Conservatorship of the couple’s two boys and that Deion and Pilar would be joint managing conservators of the couple’s daughter with Deion determining the daughter’s primary residence.  Last week, the Judge ordered that Deion Sanders was to no longer pay any child support to Pilar.  He also ruled that Pilar is to have a Standard Possession Order with all three children.

What exactly is a Standard Possession Order?  In Texas, there is a presumption, just like the presumption that two parents are to be Joint Managing Conservators, that it is in a child’s best interest that a parent have at least a Standard Possession Order with the child.  This presumption is rebuttable.  If you are requesting a parent have less than a Standard Possession Order, you must rebut the presumption by showing some form of child abuse, harm, or neglect or domestic violence as well as demonstrating that it is in the child’s best interest for the parent to have less possession and access than a Standard Possession Order.

 The Standard Possession Order is as follows:

Weekends – On the 1st, 3rd, and 5th weekend of the month beginning Friday at 6:00 p.m. and ending Sunday at 6:00 p.m.

Thursdays during the school year – Beginning at 6:00 p.m. and ending at 8:00 p.m.

Thirty Days in the summer – If a parent makes a specific designation by April 1st of each year, a parent may designate thirty days which shall be operated in no more than two periods with each period of possession being no less than seven days.
If a parent does not make a specific designation for their thirty days in the summer by April 1st, then the default possession is July 1st – 31st. 
The other parent then gets to pick one weekend of possession to occur during the parent’s thirty days in the summer as well as one weekend of possession during the parent’s regular 1st, 3rd, and 5th weekends of the month.

Spring Break in even years is awarded to the parent under a Standard Possession Order.

Holidays are divided between the parents based upon even and odd years. 
Christmas Holidays in Even-Numbered Years - In even-numbered years, beginning at 6:00 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28th
Christmas Holidays in Even-Numbered Years – In odd-numbered years, beginning at noon on December 28 and ending at 6:00 p.m. on the day before school resumes after that Christmas school vacation.
Thanksgiving in Odd-Numbered Years - beginning at 6:00 p.m. on the day the child is dismissed from school for the Thanksgiving holiday and ending at 6:00 p.m. on the Sunday following Thanksgiving.

Depending on which parent is under a Standard Possession Order, that parent is entitled to either Mother’s Day or Father’s Day weekend (depending on their sex) beginning at 6:00 p.m. on the Friday before the Mother’s/Father’s Day and ending at 6:00 p.m. on Mother’s/Father’s Day.

A parent under a Standard Possession Order may make an election to have an Expanded Standard Possession Order if the Judge finds that an Expanded Standard Possession Order is in a child’s best interest.  An Expanded Standard Possession Order means that a parent’s possession can begin at the time is school is dismissed and end at 6:00 p.m. on the respective day or it can begin at 6:00 p.m. and end at the time school resumes the day after the day of possession under a Standard Possession Order.  For example: on the 1st, 3rd, and 5th weekend of the month, a parent can elect (with the Judge’s permission) to have possession beginning at the time school is dismissed on Friday and ending at 6:00 p.m. on Sunday or beginning at 6:00 p.m. on Friday and ending at the time school resumes on Monday. 

What is significant with the Judge’s ruling regarding Pilar Sanders possession schedule is that the Judge must have found that it was not in the children’s best interest for Pilar to have an Expanded Standard Possession Order with the children and instead only awarded her a Standard Possession Order. 

Stay tuned for my next blog where I will discuss pre-nuptial agreements in Texas and the role Deion and Pilar Sanders’ pre-nuptial agreement plays in their divorce.

 

Breaking Down the Sanders Divorce: Conservatorship in Texas

On March 12, 2013, the Texas jury in the Deion and Pilar Sanders divorce ruled that Deion Sanders would have Sole Managing Conservatorship of the couple’s two boys and that Deion and Pilar would be joint managing conservators of the couple’s daughter with Deion determining the daughter’s primary residence.  What does this mean and how does this ruling impact each parent’s ability to raise their children?

I always tell my clients to think of conservatorship as being two pronged: The first prong has to do with rights and duties to a child and the second prong deals with possession schedules – who is going to see the child when.  Today I am only dissecting the first prong of conservatorship as it relates to parents rights and duties to their children.

In Texas, there is a presumption under the law that it is in a child’s best interest for two parents to be named Joint Managing Conservators.  Joint Managing Conservators means that two parents have equal decision making in a child’s life from medical, to psychological, to educational decisions as well as the ability to manage a child’s property, if there is property to manage.  When you hear that a parent is the “primary conservator” in a joint managing conservatorship, it deals with one thing and one thing only; the exclusive right to designate the child’s primary residence. 

The jury in the Sanders divorce trial ruled that Deion and Pilar are joint managing conservators of their daughter with Deion designating the daughter’s primary residence.  Deion is considered the “primary conservator” of their daughter in that he will determine where she will live primarily.  Texas law presumes that it is in a child’s best interest that a child’s primary residence be restricted to a certain geographic area so that each parent will have continuing contact with the children. 

In order to receive Sole Managing Conservatorship of a child, you must rebut the presumption that a Joint Managing Conservatorship is in the child’s best interest.   It is very difficult to rebut this presumption and you must show some form of child abuse, harm, or neglect or domestic violence in order to be awarded Sole Managing Conservatorship as well as demonstrating that it is in the child’s best interest for one parent to be the Sole Managing Conservator

What differentiates Sole Managing Conservatorship from Joint Managing Conservatorship is that the Sole Managing Conservator has sole decision making ability when it comes to all major decisions in a child’s life from medical, to psychological, to educational decisions as well as the ability to manage a child’s property, if there is property to manage.

Deion Sanders being named the Sole Managing Conservator of the two boys is very significant in that he will be making all major decisions regarding the children’s lives (as discussed above) and will not even be required to have Pilar’s agreement prior to making those decisions.  Deion will still have a duty to inform Pilar of these decisions but he will have sole decision making ability.  In order for the Texas jury to have made this ruling, the jury must have found that it was in the children’s best interest for Deion to have Sole Managing Conservatorship of the boys.

Stay tuned for my next blog where I will discuss possession schedules for parents in Texas and the Judge’s ruling on the Deion and Pilar Sanders’ respective periods of possession of their children.

 

FAQ: Does the primary conservator have the ability to disagree with the dates that I have designated for my periods of summer possession and require that I select different dates?

As a reminder, if you are the non-primary parent/possessory conservator, then you must submit, in writing, the dates that you wish to have extended summer possession with the child by April 1 every year.  Failure to submit your desired dates on or before April 1 of each year may result in you having no choice regarding your extended summer possession in a given year.  

Under a Texas Standard Possession Schedule, the non-primary/possessory conservator may select 30 days for purposes of his/her summer possession, which can be split up into a maximum of two periods of at least 7 days each.  These dates also cannot interfere with the other parent’s Mother’s Day or Father’s Day weekend periods of possession.  Keep in mind that under a Texas Standard Possession Schedule, the non-primary conservator will continue to exercise their 1st, 3rd, and 5th weekends of the month in addition to the 30 days of extended summer possession during the summer.

If you are the custodial parent/primary conservator, then you must submit, in writing, the dates that you wish to have extended summer possession with the child by April 15 every year.  Under a Texas Standard Possession Schedule, the primary conservator is entitled to select (1) weekend from the dates that the other parent has designated as his or her 30 days of extended summer possession (submitted by April 1).  Said weekend possession shall begin at 6:00 p.m. on Friday and end at 6:00 p.m. on the following Sunday during the 30 days of extended summer possession selected by the non-primary parent.  Additionally, the primary conservator gets to select (1) weekend that would otherwise be the other parents regular weekend possession during the summer (1st, 3rd, or 5th weekend) by April 15 of each year and/or by providing 14 days’ written notice to the other parent.

The purpose of the April 1 and April 15 deadlines is to provide the non-primary parent the right each year to select his/her dates for their extended summer possession before the primary conservator selects their weekend from these dates. 

Therefore, the primary conservator cannot require the non-primary conservator to select different dates for their extended summer possession (unless they have selected Mother’s Day/Father’s Day weekend).  However, the primary conservator can select 1 weekend during this 30-day period to exercise his or her extended summer possession as discussed above in paragraph 3.  Therefore, regardless of whether you are the primary or non-primary conservator, you should always wait until after the April 1 and April 15 designation deadlines to plan those summer vacations.

 

Use of Electronic Communication to Supplement Periods of Possession with Children:

Although many families reside within close proximity to one another, there are a lot of families where the non-primary conservator lives a great distance from the primary residence of their children.  This distance can make it more difficult for the parent to consistently exercise their possession with the children.  It can also make it more difficult for that parent to maintain a meaningful relationship with their children.  Advancements in technology can make it easier to maintain consistent communication with children, regardless of the distance between the parent and child.  

Electronic communication provisions in child custody orders allow parents the opportunity to see and speak to their children more frequently.  Many Texas courts are willing to order electronic communication between the non-primary parent and the children to supplement a parent’s periods of possession of and access to children.  This electronic communication can be in the form of telephone access, email access, Skype or Face Time.  As technology continues to develop and improve it becomes easier for courts to accommodate a parent’s request for additional access with their children.  Most Texas courts are unwilling to order electronic communication on a daily basis, but most will consistently order every other day or at least 3 times per week.   Generally, electronic communication is to occur for up to 30 minutes on each day that it is ordered by the Court.

 

Texas Supreme Court Holds Child Support Obligor Must be Current on All Child Support to Escape Contempt Under Texas Family Code 157.162(d)

In an opinion delivered on March 8, 2013 and authored by Justice Lehrmann, the Texas Supreme Court lent clarity to the Family Code’s “purging” provision (Texas Family Code 157.162(d) which allows a respondent to escape contempt of court if he produces evidence at the hearing showing he is current on his child support).  According to the Texas Supreme Court, the plain language of Texas Family Code 157.162(d) is the best guide to the statute’s meaning and confirms that the purging provision is only activated if an obligor is current on all child support obligations at the time of the enforcement hearing, not just those pled in the motion to enforce.

In the underlying proceedings arising out of Tarrant County, Father was held in contempt and sentenced to 174 days of jail (to be served on the 2nd and 4th weekends of each month) for failing to pay his child support as ordered. While Father paid all the past due payments that were alleged as violations in the motion for enforcement by the date of the hearing, he remained delinquent on his child support payments that arose between the time the motion was filed and the date of the hearing.  Father claimed he properly invoked the purging provision and, thus, could not be held in contempt.   The Fort Worth Court of Appeals agreed with Father.  So Mother and the Office of the Attorney General of Texas took this case to the Supreme Court.

According to the Texas Supreme Court, the trial judge was right -- Father could not avoid a contempt finding by invoking the purging provision because he was not current on all his court-ordered child support due at the time of the contempt hearing:

“The court may not find a respondent in contempt of court for failure to pay child support if the respondent appears at the hearing with . . . evidence . . . showing that the respondent is current in the payment of child support as ordered by the court.” TEX. FAM. CODE § 157.162(d). We are called upon to interpret this section of the Texas Family Code, which provides a mechanism by which an obligor who has violated a child support order may avoid a contempt finding. We hold that this language is unambiguous and means what it says: an obligor must be current on court-ordered child support payments due at the time of the enforcement hearing, regardless of whether those payments have been pled in the motion for enforcement, in order to invoke section 157.162(d) to avoid a finding of contempt where contemptuous conduct has otherwise been properly pled and established. Holding otherwise would contravene the statute’s plain language and allow a recalcitrant obligor to escape a valid contempt finding by paying only those payments pled in a motion to enforce while continuing to disobey the prior order before the enforcement hearing. We therefore hold that the trial court did not abuse its discretion in entering a contempt order in this case. We conditionally grant relief and instruct the court of appeals to vacate its judgment, thereby reinstating the trial court’s contempt order.

Whether you are a child support obligor, obligee, or an attorney representing either party, this is an important case to keep in mind in all child support enforcement matters. 

Click here to read the opinion: http://www.supreme.courts.state.tx.us/historical/2013/mar/110255.pdf

 

Designating your Summer Possession in Texas:

The Texas standard possession order for summer visitation requires both parents to take action by either April 1st or April 15th of each year if they wish to select dates for summer visitation with their child.   

If you are the non-custodial parent/possessory conservator, then you must submit, in writing, the dates that you wish to have extended summer possession with the child by April 1, 2013.  Failure to submit your desired dates on or before April 1, 2013 may result in you having no choice regarding your extended summer possession this year.   Most orders state that if the possessory conservator fails to designate his or her extended summer possession on or before April 1, then they shall exercise their extended summer possession for that year beginning on July 1 and ending on July 31. 

If you are the custodial parent/primary conservator, then you must submit, in writing, the dates that you wish to have extended summer possession with the child by April 15, 2013.  Most orders state that if the primary conservator fails to designate his or her extended summer possession on or before April 15, then they shall elect their extended summer possession for that year by providing the other parent conservator with fourteen days' written notice of the dates that they have selected. 

Key Points to Remember when Selecting Dates for Summer Possession: 

  • If you are the mother do not select dates that interfere with Father’s Day Weekend, which is the weekend of June 14, 2013;
  • If you are the father do not select dates that interfere with Mother’s Day Weekend, whish is the weekend of May 10, 2013;
  • Please remember that all summer possession must be completed within a specified time period.  The time period for exercising summer possession begins on the day after the child's school is dismissed for the summer vacation and ends no later than seven days before school resumes at the end of the summer vacation.  Be sure to look at your child’s school calendar to ensure that you comply with this requirement.
  • If you are the possessory conservator and you reside within 100 miles or less from the primary residence of the child, then you can select 30 days for extended summer possession.  You do not have to select 30 days in a row.  You can break-up the days into no more than two separate periods of at least seven consecutive days each.
  • If you are the possessory conservator and you reside over 100 miles apart from the primary residence of the child, then you can select 42 days for extended summer possession.  You do not have to select 42 days in a row.  You can break up the days into no more than two separate periods of at least seven consecutive days each.

 

The Benefit of Parenting Facilitators and Patenting Coordinators in Texas Divorce and Child Custody Cases:

It is common for parents going through a divorce or child custody case to have difficulties co-parenting.  Texas courts have several options to assist parents with developing strategies to create a healthy co-parenting relationship. Most courts in Texas will require both parents to complete a co-parenting course prior to the finalization of a divorce or child custody case. In some cases, a parenting course is not enough. In certain cases, Texas courts can appoint either a parenting facilitator or parenting coordinator to further assist the parents to develop a healthy co- parenting relationship.

The roles of a parenting facilitator and a parenting coordinator are very similar. The purpose of both a parenting facilitator and parenting coordinator is to assist parents in resolving parenting issues.  The major difference between a parenting facilitator and a parenting coordinator includes their ability to communicate certain information to the Court and the procedures used by each.  A parenting coordinator must fulfill his/her purpose through confidential procedures and communication.  This means that the parenting coordinator cannot report anything to the Court other than a statement of whether the parenting coordination should continue.  A parenting coordinator is prohibited from disclosing information to the Court that was obtained through parenting coordination.   A parenting facilitator fulfills his/her role based upon procedures established by the Court.  A parenting facilitator can make recommendations to the court and can be called to testify in a judicial proceeding.  Information reported by the parties to the parenting facilitator is not confidential.

Modification of Custody in Texas

Recently, I was able to help a client change the custody arrangements he had in his divorce decree to a new custody arrangement that gave him much more time with his daughter.  Not only were we able to get the client more time with his daughter than he had in his divorce decree, we were also able to decrease the client’s child support based upon the greater amount of time he was spending with his daughter.   

In order to modify any custody arrangement in Texas, the person requesting the modification must show that there has been a material and substantial change in circumstances.  The circumstances can be that of either parent or even the child.   The most common circumstances that the Court sees are changes in employment that result in either greater or lesser pay than at the time of the last order.  People also relocate which can result in more or less time with the child then the circumstances at the time of the prior order.  When it comes to evidence that the Court may consider, the Court may only consider evidence from the date of the last order to present.  Anything that happened prior to or during a divorce for instance, is not admissible evidence in a modification in Texas.  

At the conclusion of the client’s modification action, I received a very kind note from the client regarding the changes in his life and the life of his daughter.   

“Katie,
I wanted to thank you for all your assistance in getting this modification finalized.  I know it was not an easy road, but it worked out.  I think you are a very good attorney and wish you all the best.  The girls are much happier now that they see me on a regular basis.”

Thanks,

J.A.”

 

Co-Parenting Through A Divorce or Child Custody Case:

Many parents find it difficult, if not impossible, to co-parent during a divorce or child custody case.  There are many courses available to assist parents with formulating plans to become better co-parents.  Many of these courses stress the importance of co-parenting and the impact that a good co-parenting relationship can have on children.  Many courts in Texas require both parents to attend and complete a co-parenting course prior to the conclusion of their case.    

Two Co-Parenting Courses in the Dallas, Texas area are:

1. Children in the Middle - www.childreninthemiddle.com; and 2. For Kids' Sake - www.conflicthappens.com

 

Spring Break 2013: In Texas, the standard possession order awards the primary parent possession of the child(ren) for spring break in odd-numbered years.

Pull out those school calendars and determine when spring break occurs for your child(ren) this year.  Please keep in mind when deciding on your spring break destination that if there is an active divorce or child custody case pending involving your child(ren), then your spring break destination may be limited to within the state of Texas.  Many Texas courts have standing orders that prohibit either parent from removing the child(ren) from the state of Texas during the pendency of a divorce or custody case.  Therefore, you must get court approval or a written agreement with the other parent prior to taking a spring break trip outside of the "Lone Star State."

Hawaii Five-0 deals with relocation issues

Did y’all see Hawaii Five-0 on January 21st “Hana I Wa’la”?  If you didn’t, here’s the link to watch it:

http://www.cbs.com/shows/hawaii_five_0/video/ipvvb_95gAWpl3Ka7dppg6QfBK3mBW70/hawaii-five-0-hana-i-wa-ia

If you don’t follow this show, here’s the low down.  Danno moved to Hawaii to follow his ex-wife, her husband, and his daughter.  He is a huge part of his daughter’s life.  After a couple of years, the ex-wife and her husband decide to leave Hawaii and move to the mainland. Danno goes to court to try to stop the move. The episode shows Danno in Court presenting his side to the Judge.  McGarrett, his police partner, is there as a character witness.  Danno is disappointed because the ex-wife did not appear for the hearing. Nonetheless, Danno gives an impassioned plea to the Judge about how he moved to Hawaii to be close to his daughter and now would be devastated if she was taken away.  At the end of the show the Judge rules in his favor, ordering that the daughter cannot be moved away from Hawaii.

The show is unrealistic in its depiction of the courtroom scene.  A litigant is almost never allowed to just stand up and talk to the judge.  A witness is also not allowed to stand up and address the judge.  Usually this is done in the context of testimony from the witness stand with the lawyers asking questions. And, if the other side fails to appear for the hearing, then the party that did appear wins by default.

Even so, this show highlights an issue that comes up in many family law cases in Dallas, Texas. Most family law judges in the DFW area place domicile restrictions on a child’s residence. This usually restricts the child’s residence to “Dallas and contiguous counties” or some similar version. This means that the child’s residence must be within the restricted area. If the parent that is given primary custody wishes to move out of the area, he or she must seek permission of the divorce court to change the child’s residence or leave the child in the primary care of the other parent.  The domicile restriction does not restrict the parent’s residence, just the child’s.

Sometimes a parent will try to move without seeking permission from the divorce court, forcing the other parent to go to court to try to force him or her to move back. Most often, the judge will make the child move back to the restricted area, either with the primary parent or with the other parent.

To read more about domicile restrictions and relocation, read our post If you’re gonna divorce in Dallas, you better plan to stay here!

 

The Company You Keep Could Have an Effect on Custody and Divorce in Texas

The effects of domestic violence, alcohol abuse and adultery have come into the spotlight with the recent Houston, Texas celebrity divorce involving hand surgeon, Michael Brown of the Brown Hand Center, and his Wife, Rachel Brown.   

As documented by Page Six of the New York Times, Page Six, Rachel Brown has made allegations against Michael Brown of domestic violence.  These allegations have resulted in criminal assault charges of which Michael Brown was acquitted in 2010 

Mr. Brown has also testified during the divorce to paying for the company of women up to “three at a time.”  Mr. Brown testified that he would not expose his children to his dating or other adult activities. The allegations of domestic violence and adultery have had long lasting effects on the Brown divorce.  The Divorce Court has ordered that Michael Brown should only have supervised possession and access of the children at this time.   

Rachel Brown is currently in a romantic relationship with former Houston Astros baseball player, Jeff Bagwell, who she says she plans to marry.  Jeff Bagwell has become a player in the divorce action due to his relationship with Rachel, his interaction with the Brown children, and his alcohol abuse.  Rachel Brown has previously testified that she is in a relationship with Jeff Bagwell and that Bagwell recently went to rehab for alcohol abuse but did not complete the rehabilitation program. 

A Court has the ability during and after a divorce action to order parents to not allow certain people to be in the presence of the children if the Court finds that it is not in the children’s best interest to be around said people.  If the Court were to find that prior or potential alcohol abuse by Jeff Bagwell is not in the children’s best interest, the Court could order Rachel Brown to not have the Brown children in Bagwell’s presence on not only a temporary but permanent basis.  This could have serious ramifications for the pending divorce and her eventual marriage to Bagwell.  The Court has not enjoined Rachel Brown from allowing the children to be in the presence of Jeff Bagwell at this time.  Additionally, the Court could order Michael Brown to not allow the children to be in the presence of certain people including the company of certain female companions due to his prior testimony regarding his payment for the company of certain women.

 The next hearing in this divorce is scheduled for February 7, 2013.

 

The High Cost of Informal Child Support Payments

Although it might seem easier at the time, when it comes to informal payments for child support the best policy for both parties is to avoid them.

For obligees (people receiving child support), it is usually best to require your ex to make payments through the State Disbursement Unit. The Office of the Attorney General in Texas keeps records of payments received. These records help in enforcing child support against a non-paying ex. Requiring payment through the State can also be a good thing in cases where it is necessary to limit contact between the parties.

For obligors (people paying child support) it is important that you strictly follow your child support orders as to the date, amount and method of payment. If your decree says to pay your child support through the State Disbursement Unit, then do it. Informal payments to your ex will not appear on the payment records kept by the Office of the Attorney General. This causes problems when a less-than-honest ex tries to double-dip and denies receiving payment. If you do decide to make an informal payment, always retain proof (like copies of a check or affidavits of informal payment) in case this issue arises.

For obligees and obligors alike, you must understand your child support order and what it means for you on a day-to-day basis. If something is unclear or if you are having problems with receiving payments or getting credit for payments, contact a family law attorney for a consultation. Do not delay - failure to pay court-ordered child support can be serious, resulting in fines and even jail in some cases.

The Texas Standard Possession Order and Weekend Possession extended by a Holiday:

In Texas, the standard possession order provides special provisions for extending possession on weekends that either begin with or end with a student holiday or teacher in-service day.  In 2013, Martin Luther King, Jr. holiday is one of the occasions when the non-primary parent gets a little extra time with the child(ren) during their weekend possession.  Specifically, parents that have a Texas Standard Possession Order should be reminded that Martin Luther King, Jr. holiday falls on the Monday following the 3rd weekend of possession in 2013.  Therefore, instead of the period of possession ending at either 6:00 p.m. on Sunday and/or at the time that school resumes on Monday (depending upon whether you have regular standard possession or expanded standard possession) the weekend period of possession does not end until 6:00 p.m. on Monday, January 21, 2013.

 

Are sperm donors daddies in Texas?

There's been a lot of media reporting recently about the Kansas case pursing a sperm donor to establish paternity and pay child support. There, the man provided a private sperm donation to the mother of the child and her lesbian partner after responding to an ad on Craigslist. The man and two women signed a donor agreement where he relinquished all parental rights and responsibilities. The mother was a stay-at-home mother of 8 children, but when her partner became ill and unable to work, the mother applied for government assistance. This triggered the right of the Kansas state government officials to intervene and recoup the benefits paid on behalf of the child. The Kansas Department for Children and Families argues that because the man did a private donation, and not through a clinic or doctor, that the Kansas state law doesn’t protect him. Thus, Kansas argues that he should be responsible for paying child support to the state to repay the government benefits paid on behalf of the child.

Read article by Michelle Singletary Donor or daddy?
Also read article by Associated Press Kansas sperm donor fighting effort by the state to make him pay child support  and by Tim Hrenchir of the Capital Journal Topeka sperm donor: Child support case politically motivated

In Texas, the family code section 160.702 provides that a sperm donor cannot be established as the father of the child. “A donor is not a parent of a child conceived by means of assisted reproduction.” Texas law makes no distinction between private donor agreements versus those procured through a clinic or doctor. Although I would never say never, it is unlikely that the Kansas scenario could be repeated in Texas. Nonetheless, if you are considering conception through sperm or egg donation, it is best to contact a lawyer to make sure that all agreements comply with Texas law.

Are you my Father?

Are you my Father?   In Texas, there are many ways to become recognized as the father of a child, regardless of genetics and biology. Although biology is an important aspect of parentage in Texas, it is possible to find yourself in a position where you become the “father” of a child based solely on the relationship that you have with the child’s mother.  

Texas law defines “father” in the following ways:

1. Presumed Father: In Texas, a man becomes a father if his paternity is presumed.   A man’s paternity is presumed in the following situations:

a.         The man is married to the child’s mother, and the child is born during the marriage;

b.         The man was married to the child’s mother, and the child is born within 300 days after the marriage was terminated. 

c.         The man married the child’s mother before the birth of the child in apparent compliance with the law (regardless of whether the marriage is or could be declared invalid), and the child is born during the invalid marriage or within 300 days after the marriage ended.

d.         The man married the child’s mother after the birth of the child in apparent compliance with the law, he voluntarily asserted his paternity of the child and (1) the assertion is in a record filed with the Bureau of Vital Statistics, (2) he is voluntarily named as the child’s father on the child’s birth certificate, or (3) he promised in a record to support the child as his own.

e.         He continuously lived in the same household with the child during the first two years of the child’s life, and he represented to others that the child was his own.

2.  Acknowledged Father:  A man becomes a father if he and the mother sign an acknowledgement of paternity with the intent to establish the man’s paternity. An acknowledgement of paternity is filed with the Bureau of Vital Statistics. The signing of a valid acknowledgement of paternity adjudicates parentage and therefore, the acknowledged father has all of the rights and duties of a parent.

3.  Father by Adoption: A man becomes a father if he adopts a child.

4.  Father by Adjudicated Paternity: A man becomes a father if his paternity is adjudicated. 

5. Father by Consent to Assisted Reproduction: A man becomes a father if he consents to assisted reproduction by the mother.

6. Father by Gestational Agreement:  A man becomes a father if he is adjudicated to be the father of a child born to a gestational mother under a validated gestational agreement.

*graphic courtesy of netanimations.net

 

FAQ: How to I determine if it is my weekend of the month?

Many parents in Texas have possession of and access to their children pursuant to the Standard Possession Schedule contained within the Texas Family Code. The parent that has standard possession is entitled to possession of a child during the 1st, 3rd, and 5th weekends of each month throughout the year. The 1st, 3rd, and 5th weekends of the month are not the same as every other weekend. It can be confusing in some cases to determine if a weekend is the 1st, 3rd, or 5th weekend of the month. The key to determining which weekend of the month it is for purposes of your possession, you should look at what day of the month that Friday falls on. For instance, if Friday is the 1st day of any month, then that would be the first weekend of the month. However, if Saturday is the first day of the month, then that weekend would not be the first weekend of the month.

Who Should Be Present During Exchanges of the Children

 

When going through a divorce in Dallas, Texas, exchanging the children for possession times between parents can be a stressful situation.   When children are enrolled in school, many parents choose to exchange the children at the beginning or ending of the school day. The exchange at school limits or eliminates the parents’ interaction with each other. This can be a wise choice during a divorce in Texas when parents may not necessarily be getting along. 

When a child is younger than school age, it makes exchanges of the young child more challenging in that it requires parent interaction at the time of the exchanges. Recently in the news, Halle Berry, her boyfriend, actor Olivier Martinez, and the father of Ms. Berry’s daughter, model Gabriel Aubry, were involved in an altercation during the exchange of the child. Both Olivier Martinez and Gabriel Aubry allege that the other committed assault. Mr. Aubry was arrested at the time of the exchange of the child. Mr. Aubry has also obtained a restraining order against Mr. Martinez. How this will all play out in the media and the legal system is yet to be seen.

It is wise when exchanging children to not have significant others, family members or any person the other parent could interpret as an adversary present at the time of the exchange. The presence of additional people during an exchange regardless of the intent can heighten emotions and create possible situations that can have lasting negative repercussions for you as well as your child.

 

Holidays and the Texas Standard Possession Schedule:

It is approaching the holiday season again. Be sure to pull out your Final Decree of Divorce, Order in Suit Affecting Parent-Child Relationship or other court order to determine when you have possession of your children for Christmas in 2012.

It is important to obtain a copy of your child’s/children’s school calendar, so that you can determine when they will be released from school for the holidays. If you have a child that is not in school, then obtain a copy of the calendar for the school district that they would be attending if they were in school, and follow that calendar to determine when your holiday periods of possession begin and end.

CHRISTMAS:

Generally, the non-primary conservator will have possession of the child/children for the front-half of the Christmas holiday in even-numbered years. The front half of Christmas begins on the day that the children are dismissed from school for Christmas holiday and ends at noon on December 28.  Typically, the primary conservator has possession of the children for the back-half of Christmas in even-numbered years. The back-half of Christmas begins at noon on December 28 and ends at the time that school resumes after the Christmas holiday.  This period of possession begins on the date that the children are release from school for Christmas break.

Pay Special Attention When Structuring Your Thanksgiving Periods of Possession in Texas

 

If you have children and are going through a divorce in Texas, it is important to pay close attention to the possession schedule you agree to in your final decree. It is important to remember that holiday periods of possession as it is stated in your Texas divorce decree supersede your regular weekly periods of possession.   When structuring your possession schedule to best accommodate you and your children, it is best to refer to your child’s school district and what days the school district considers to be a holiday.

Thanksgiving periods of possession in Texas can be tricky. The Texas Family Code alternates Thanksgiving periods of possession between parents on an every other year basis. The Thanksgiving holiday begins the day the child is dismissed from school and ends either the night before school resumes or the day school resumes after the Thanksgiving holiday.

Most school districts in Texas now release children for the Thanksgiving holiday on the Friday preceding Thanksgiving as opposed to the Tuesday or Wednesday preceding Thanksgiving. This difference can affect the amount of time you have with your children in a given year. For instance, if you are entitled to possession the weekend preceding Thanksgiving, your spouse is entitled to the Thanksgiving holiday, and your child is dismissed from school on the Friday before Thanksgiving, your spouse’s Thanksgiving period of possession will supersede your weekend before the Thanksgiving holiday. This occurs because the weekend preceding the Thanksgiving holiday is considered part of the Thanksgiving holiday due to your child being dismissed from school the Friday before Thanksgiving.

If your child is dismissed from school on the Friday before Thanksgiving, you may want to structure your Thanksgiving holiday periods of possession for you and your spouse to begin the Monday preceding Thanksgiving so as to not miss a regular weekend period of possession.

 

Frequently Asked Question: What do I do if I am supposed to have possession of my child, but the other parent has stated that they are not going to surrender the child?

 

There are several things that you should do if you have a valid Texas court order that awards you present possession of your child and the other parent is stating that they are going to deny you possession of the child. First, you must go to the place designated in the order at the time designated in the order and attempt to obtain possession of the child. Do not just take the other parents word that they are going to deny you possession. You must attempt to obtain possession of the child. 

If you show up at the time and place designated in the order and you are denied possession of the child, it would be helpful to document your attempt to obtain possession of your child. This can be done by using a video recorder to record the date, time, and location of where you are attempting to obtain possession of your child. Most smart phones and other cellular phones have this recording capability. Also, you could contact the local police department to see if they will assist you with preparing a report to document your attempt to obtain possession of your child. 

If a parent denies the other parent possession of a child and there is a valid court order, then a Texas court can make a finding that the parent denying possession is in contempt.

Next week I will discuss the possible consequences of a finding of contempt and other remedies available to the parent that was denied possession of the child.

 

Can I pay my child support directly to the other parent instead of making payments through the State?

 

The simplest answer to this question is no. It is never a good idea to make any direct payments of child support to the other parent. Most Texas divorce decrees and custody orders contain very specific language prohibiting these kinds of payments. Direct payments of child support in Texas are characterized as informal payments of child support. Most Texas child support orders specifically state that any informal child support payments made are considered payments made in addition to child support not payments made in lieu of child support. Therefore, any informal payments of child support are essentially gifts to the other parent.

If you have made the mistake that many parents have in Texas, and have made child support payments directly to the other parent, stop immediately. Obtain a copy of an Affidavit of Informal Payment from the Texas Attorney General website or contact a Dallas divorce lawyer or Dallas child custody lawyer to assist you with getting the other parent to execute an affidavit confirming the direct payments of child support received. Moving forward make all payments of child support through the state disbursement unit in San Antonio.

 

Halloween Is Here

 

The Standard Possession Order does not include a specific provision for the Halloween holiday.  This can make trick-or-treating extra spooky for divorced parents who both want to spend time with their kids on this fun holiday. 

If Halloween doesn't fall during your possession this year, you can still share in the holiday fun. Try Skype or doing Facetime with your child in costume, lunch at your child’s school if they dress up for Halloween, or Halloween balloon or cookie delivery.You can also celebrating before Halloween by making a trip to the pumpkin patch, carving jack-o-lanterns, or watching age-appropriate scary movies.

If Halloween does fall during your time, make sure to send pictures of your child in costume to your ex.  Hopefully they will repay the gesture on a year when they have Halloween or another important holiday or event.  These small gestures can go a long way toward fostering effective co-parenting and encouraging a healthy relationship with your child’s other parent.

For people who have not yet finalized their divorce, you can include provisions in your decree for special holidays that are not addressed by the Standard Possession Order, like Halloween, Easter and Fourth of July.

No matter what your relationship is like with your ex or what your decree says about Halloween, keep in mind that Halloween should be a fun holiday for your child and know that you, whether it is your day for possession or not, should have the ability to make that happen.  Happy trick-or-treating everyone!!

 

Necessary Custody Information for Temporary Orders Hearing in Dallas, Texas

 

As discussed in my blog two weeks ago, at the time of filing for divorce or a suit affecting the parent-child relationship or anytime during the pendency of a lawsuit involving children, a party can request a Temporary Orders Hearing. The purpose of the Temporary Orders Hearing is for the Court to make custody orders regarding conservatorship, rights and duties to the child, possession and access for each parent with the child, and child support that will remain in place during the pendency of the lawsuit.

What makes a person the “primary parent” as opposed to the other parent is that the primary parent is awarded to be the “person with the exclusive right to designate the primary residence of the child.” There are a number of factors the Court considers when deciding who should be given the temporary exclusive right to establish the primary residence of the child at a Temporary Orders hearing. 

Assuming both parents are fit and there has not been any child abuse, harm or neglect, the Court first and foremost is going to examine which parent has been the primary caretaker of the child. If both parents shared in this responsibility, it is ok to acknowledge this fact. However, if you believe you were the primary parent presently and leading up to the lawsuit, the following are actions (if applicable) you need to show the Court you performed for your child a majority of the time:

  • You fed your child;
  • You bathed your child;
  • You got your child ready for school;
  • You took your child to school or daycare;
  • You picked up your child from school or daycare;
  • You scheduled, attended and took the child to and from doctors’ appointments;
  • You attended school activities and parent-teacher conferences;
  • You participated in the child’s extracurricular activities; and
  • You helped with the child’s homework.

Please understand that this list is not all encompassing and there are multitudes of ways that you can prove that you are the child’s primary parent. Documents such as homework logs, attendance records, report cards, reading logs, and daycare logs are very helpful in aiding the Court when it comes to deciding which parent shall have the temporary exclusive right to establish the child’s primary residence at a Temporary Orders hearing.

 

Holidays and the Texas Standard Possession Schedule

 

It is approaching the holiday season again. Be sure to pull out your Final Decree of Divorce, Order in Suit Affecting Parent-Child Relationship or other court order to determine when you have possession of your children for Thanksgiving and Christmas in 2012.

It is important to obtain a copy of your child’s/children’s school calendar, so that you can determine when they will be released from school for the holidays. If you have a child that is not in school, then obtain a copy of the calendar for the school district that they would be attending if they were in school, and follow that calendar to determine when your holiday periods of possession begin and end.

THANKSGIVING:

Generally, the primary conservator will have possession of the child/children for Thanksgiving in even-numbered years. This period of possession begins on the date that the children are released from school for Thanksgiving break.

CHRISTMAS:

Generally, the non-primary conservator will have possession of the child/children for the front-half of the Christmas holiday in even-numbered years. This period of possession begins on the date that the children are release from school for Christmas break.

 

TX Divorce FAQ: Will I lose my health insurance if I get a divorce?

Many Texans get health insurance through their spouse’s employer, and loss of that insurance is often a major concern in divorce. Once a divorce is finalized your spouse will no longer be able to carry you on his or her employer’s health insurance; however, divorcing spouses still have options. Every county in North Texas has adopted standing orders, which automatically go into effect when a divorce is filed. These standing orders prevent divorcing spouses from altering health insurance benefits while the divorce is pending. Even when the divorce is finalized a spouse may still be able to maintain his or her coverage through a federal law called COBRA. COBRA allows a divorcing spouse to buy health insurance coverage through their ex-spouse’s employer for up to 36 months. The cost of COBRA coverage must be within 102% of the combined total of a similar employer’s and employee’s contribution to the plan. There may be less expensive options available for relatively healthy spouses, but COBRA can be a good option to maintain coverage. For more information see: http://www.dol.gov/ebsa/faqs/faq-consumer-cobra.html

The Myth of "Equal Time"

 

It is a common misconception that both parents are entitled to "equal time" with their children in a divorce. It sounds fair - two parents sharing time equally. But what sounds "fair" to the parents in theory is not always what works best for the children in practice.

The law in Texas is focused on the best interest of the child - not the parent. While it might sound like a good idea to have a child spend "equal" time with the parents, the Texas Family Code presumes that the Standard Possession Order -- as opposed to equal time – is in the child’s best interest. If either parent wants to deviate from the Standard Possession Order, even if it is just to ask for equal time, that parent must establish (1) that the Standard Possession Order is not in the child’s best interest and (2) that the schedule they are requesting is in the child’s best interest.

If you are seeking a 50/50 possession schedule be prepared to show the court that you are involved in the day-to-day care of the child, from breakfast, to car pool, to soccer practice, to homework and bath time. Talk to your attorney and explore your options. 50/50 possession schedules are growing increasingly common and the best interest of the child allows the court to deviate from the Standard Possession Order under the right circumstances.

 

When You Can't Agree, Let Your Order Be Your Guide

In perfect world, former spouses would always agree on possession time with their kids and would cooperate so well with each other that they would never even need to consult their divorce decrees.  This happens in a few rare cases. But, more often than not the relationship between exs is emotionally charged and the same communication problems that contributed to the end of the romantic relationship persist.  This is not to say good co-parenting is impossible.  But gray areas still arise even when both parties truly have their children’s best interests at heart and people get confused about things like summer possession time, when father’s day visitation ends, who has the right to enroll the children in school or counseling, and what is supposed to happen with medical reimbursement.

The solution to all of this simply put is become an expert when it comes to your divorce decree.  Know it front and back.  Have your attorney explain the things that confuse you.  Scan a copy into your computer and have access to it on your phone at all times.  Keep a copy in the glove compartment of your car.   When disputes arise about pick up time or where the kids are supposed to be dropped off you can flip open your decree and quickly resolve the issue instead of going back and forth with your ex and getting into a he--said she –said fight.

Because understanding your divorce decree or other child-related orders is so important, make sure you consult your attorney to explain things you might not understand.  Even if it has been years since your divorce, schedule an appointment with your previous attorney to get questions answered.  Or, if you would rather seek the advice of someone new, schedule a consultation with another experienced family lawyer.  The piece of mind a consultation fee could buy you may be priceless.

One Size Does Not Fit All: Possession for Children Under Three Part 2

As we know from my blog from last week, courts in Texas have not adopted a standard possession schedule for children under three years of age. Instead, possession will be determined on a case-by-case basis using the factors listed in Texas Family Code as a guide.  What this means is that you (or your lawyer) will have to advocate for the possession schedule that you believe to be in your child’s best interest.

One example of a possession schedule commonly used for children under the age of three provides step ups in possession time for the non-primary parent (the parent without the right to designate the child’s primary residence) as the child gets older and works its way up to the Standard Possession Order by the time the child is three years old:

  • Children Under Six Months of Age:

Weekdays: On Wednesdays and Fridays of each week from 6:00 p.m. until 8:00 p.m. that same day.

Sundays: On Sundays of each week from 4:00 p.m. until 6:00 p.m. that same day.

Alternative Times: For three periods of two hours each during any seven-day period, with no more than two days between periods of possession whenever possible.

  • Children Between Six Months & Eighteen Months of Age:

Weekdays: On Wednesdays and Fridays of each week from 6:00 p.m. until 8:00 p.m. that same day.

Sundays: On Sundays of each week from 2:00 p.m. until 6:00 p.m. that same day.

Christmas: From Noon until 4:00 p.m. on Christmas Day each year.

Thanksgiving: From Noon until 4:00 p.m. on Thanksgiving Day each year.

Birthday: From 6:00 p.m. until 8:00 p.m. on the child’s birthday each year.            

Alternative Times: For two periods of two hours each and one four hour period during any seven-day period, with no more than two days between periods of possession whenever possible.

  • Children Between Eighteen Months and Three Years of Age:

Weekdays On Wednesdays and Fridays of each week from 6:00 p.m. until 8:00 p.m. that same day.    

Sundays: On Sundays of each week from Noon until 6:00 p.m. that same day.

Christmas: In odd-numbered years from Noon until 6:00 p.m. on December 26th of each year. In even-numbered years from Noon until 6:00 p.m. on December 25th of each year.              

Thanksgiving: In odd numbered years from 10:00 a.m. until 6:00 p.m. on Thanksgiving Day each year.

Birthday: From 6:00 p.m. until 8:00 p.m. on the child’s birthday of each year.

Alternative Times: For two periods of two hours each and one six hour period during any seven-day period, with no more than two days between periods of possession whenever possible.

  • Children Three Years of Age and Older:

Standard Possession Order.

Since possession schedules for children under three depend on so many factors, there is a lot of room for variation. Recently, John Zervopoulos. Ph.D., J.D., ABPP, told me about a booklet of possession schedule options for children of all ages that many courts in Arizona use called Model Parenting Time Plans for Parent/Child Access. It was developed by a statewide committee of judicial officers, mental health professionals, and attorney in that state and provides options for possession with children under three.

 

One Size Does Not Fit All: Possession for Children Under Three

If you have been involved in a suit affecting the parent-child relationship you are probably familiar with the Standard Possession Order. In Texas, the law presumes that the Standard Possession Order (Thursday nights and 1st, 3rd, and 5th weekends of each month, with shared holidays and 30 days in the summer for the non-custodial parent) is in the best interest of the children over three years of age. But what about children under three? The answer is not quite as simple.

For children under the age of three, the Standard Possession Order does not apply. The Texas legislature has declined to provide a set schedule for children this young, instead opting to provide us with a list of factors, including the caregiving provided to the child and the effect on the child that may result from separation from either party, the court should take into account when determining a possession. Texas Family Code 153.254 provides:

A)    The court shall render an order appropriate under the circumstances for possession of a child less than three years of age. In rendering the order, the court shall consider evidence of all relevant factors, including:

1.     the caregiving provided to the child before and during the current suit;

2.     the effect on the child that may result from separation from either party;

3.  the availability of the parties as caregivers and the willingness of the parties to personally care for the child;

4.     the physical, medical, behavioral, and developmental needs of the child;

5.     the physical, medical, emotional, economic, and social conditions of the parties;

6.     the impact and influence of individuals, other than the parties who will be present uring periods of possession;

7.     the presence of siblings during periods of possession;

8.     the child’s need to develop healthy attachments to both parents;

9.     the need for continuity of routine;

10. the location and proximity of the residences of the parties;

11. the need for temporary possession schedule that incrementally shifts to the schedule provided in the prospective order under Subsection (d)[The Standard Possession Order] based on:

a)     the age of the child; or

b)     minimal or inconsistent contact with the child by a party; 

12. the ability of the parties to share in the responsibilities, rights, and duties of parenting; and

13. any other evidence of the best interest of the child.

Keep these factors in mind when talking with your attorney about a possession schedule for your young child. These things will be what the court looks at in making a decision. Without a statutory schedule as a fall back, it is important to present evidence that gives the court as much information as possible about these factors. 

Stay tuned next week for sample possession schedules for children under three. If you want to learn more about the Standard Possession Order, see Sarah Darnell’s recent blogs on this subject.

 

Texas divorce and child custody FAQ: Can I take my children on vacation during my divorce or custody case?

Many counties in Texas have Standing Orders that contain specific injunctions regarding the removal of children beyond the state of Texas during the pendency of a divorce or child custody case. Many of these Standing Orders specifically prohibit anyone from removing the children beyond the state of Texas unless you have a written agreement of the parties and/or a specific court order that allows you to do so. Therefore, you can take your children on vacation, but you have to stay within the boundaries of the state of Texas, unless the other party agrees in writing and/or you obtain a court order that allows you to do so. 

Understanding the Texas Standard Possession Schedule: Part IV

With summer just around the corner it is important to understand what periods of possession that each parent is entitled to during the summer months.

If you are the non-primary parent and you reside within 100 miles of the primary residence of the children, then pursuant to the Texas Standard Possession Schedule, you are entitled to 30 days of uninterrupted extended summer possession with your children. You are required pursuant to the Texas Standard Possession Schedule to designate the 30 days of your choosing by April 1 in all years. If you fail to designate 30 days of possession by April 1 in any given year, then the default 30 days are July 1 – July 31.

If you are the primary parent, then pursuant to the Texas Standard Possession Schedule, you are entitled to have possession of the children on any 1 weekend during the non-primary parent’s 30 days of summer possession, if you provide written notice to the non-primary parent by April 15 of each year. In addition to this 1 weekend, you are also entitled to 1 additional weekend of possession during the summer that would otherwise have been the non-primary parent’s 1st, 3rd, or 5th weekend period of possession. You must designate this weekend by April 15 or provide at least 14 days’ prior written notice to the non-primary parent.   The weekends selected by the primary parent cannot interfere with the non-primary parent’s Father’s Day possession, if the non-primary parent is the father of the children.

It is important to remember/consider the following in order to maximize your extended summer possession with your children:  

·       You will continue to have possession of your children on the 1st, 3rd, and 5th weekends of the month during the summer in addition to the 30 days of extended summer possession;

·       You will not have Thursday possession during the summer as this possession occurs only during the regular school term;

·       If you are the mother of the children you are entitled to possession of the children on Mother’s Day weekend in addition to your 30 days in the summer;

·       If you are the father of the children you are entitled to possession of the children on Father’s Day weekend in addition to your 30 days in the summer;

·       Your 30 days of summer possession do not have to be exercised in 30 consecutive days. You can break it up into no more than 2 periods of at least 7 consecutive days;

·       Your extended summer possession cannot begin any earlier than the day after the children are released from school for summer vacation;

·       Your extended summer possession must end at least 7 days before school begins the following school year.

Tips for Understanding the Texas Standard Possession Schedule: Part III

 

The Children’s Birthdays 

Pursuant to the Texas Standard Possession Schedule, the parent that is not entitled to present possession of a child on the child’s birthday shall have possession of the child beginning at 6:00 p.m. on the child’s birthday and ending at 8:00 p.m. on that day. 

In order to determine if you are the parent entitled to present possession of the child on the child’s birthday in any given year, it is a good idea to look at the calendar at the beginning of each year and determine which parent is entitled to possession of the child on his or her birthday. If you are the parent that is not scheduled to have possession of the child on his or her birthday, then you have the right to have possession of the child on his or her birthday beginning at 6:00 p.m. on the child’s birthday and ending at 8:00 p.m. on that day for that year. 

If you intend to exercise your right to have possession of the child for his/her birthday in any year, it is a good idea to give the parent that is scheduled to have possession of the children notice that you intend to exercise your right to possession of the child on his/her birthday for that year as early as possible. This will allow both parents the ability to plan the child’s birthday celebrations accordingly.  

Father’s Day 

Pursuant to the Texas Standard Possession Schedule if the Father of the children is designated as a conservator of the children, then he is entitled to possession of the children beginning at 6:00 p.m. on the Friday preceding Father’s Day and ending at 6:00 p.m. on Father’s Day in all years. 

Mother’s Day 

Pursuant to the Texas Standard Possession Schedule if the Mother of the children is designated as a conservator of the children, then she is entitled to possession of the children beginning at 6:00 p.m. on the Friday preceding Mother’s Day and ending at 6:00 p.m. on Mother’s Day in all years. 

The following additional periods of possession and access to the children are specifically addressed by the Texas Standard Possession Schedule:

  • Spring Break/Spring Vacation; and
  • Summer Possession.

Spring Break / Summer Vacation 

Pursuant to the Texas Standard Possession Schedule, spring vacation is alternated between the parents each year in most cases. Spring vacation is similar to Thanksgiving holiday because it is not divided into a front-half and back-half like Christmas holiday. 

If you are the possessory conservator, you will have possession of the children for spring vacation in even-numbered years beginning at the time that the children are released from school for spring vacation and ending at 6:00 p.m. on the day before school resumes from spring vacation.   The managing conservator will have possession of the children for spring vacation in odd-numbered years beginning at the time that the children are released from school for spring vacation and ending at 6:00 p.m. on the day before school resumes from spring vacation.

If the parents of the children reside 100 miles or more apart, then the possessory conservator shall have possession of the children for spring vacation in all years beginning at the time that the children are released from school for spring vacation and ending at 6:00 p.m. on the day before school resumes from spring vacation. 

Next week I will discuss and provide tips for understanding how to designate and maximize your summer periods of possession of the children.

Co-parenting is the real custody, part 2 of 2

In part 1 of the co-parenting series

we looked at Deborah Serani’s “Do’s” of co-parenting from her article The Do's and Don'ts of Co-Parenting Well.

Remember that a divorce or break-up doesn’t end the parenting relationship with the other parent of your children.  You will be involved with that person for the rest of your children’s lives. Think of all the ballet recitals and softball games, graduations, weddings, and grandbabies that are in your child’s future. You and the other parent (and probably both of your future spouses and other children) will be in each other’s lives for a very long time. Here are Ms. Serani’s “Don''s” of co-parenting:

        Don't

  • Don't burden your child. Emotionally charged issues about your Ex should never be part of your parenting. Never sabotage your child's relationship with your Ex by trash talking. Never use your child to gain information about things going on or to sway your Ex about an issue. The main thing here is this: Don't expose children to conflict. Research shows that putting children in the middle of your adult issues promotes feelings of helplessness and insecurity, causing children to question their own strengths and abilities. 
  • Don't jump to conclusions or condemn your Ex. When you hear things from your children that make you bristle, take a breath and remain quiet. Remember that any negative comments your children make are often best taken with a grain of salt. It's always good to remain neutral when things like this happen. Research shows that your child can learn to resent and distrust you if you cheer them on.
  • Don't be an unbalanced parent. Resist being the fun guy or the cool mom when your children are with you. Doing so backfires once they return to your Ex - and sets into motion a cycle of resentment, hostility and a reluctance to follow rules for all involved. Remember that children develop best with a united front. Co-parenting with a healthy dose of fun, structure and predictability is a win-win for everyone.
  • Don't give into guilt. Divorce is a painful experience, and one that conjures up many emotions. Not being in your child's life on a full time basis can cause you to convert your guilt into overindulgence. Understand the psychology of parental guilt - and how to recognize that granting wishes without limits is never good. Research shows that children can become self-centered, lack empathy and believe in the need to get unrealistic entitlement from others. Confusion understanding the dynamics of need versus want, as well as taming impulsivity becomes troublesome for children to negotiate too.
  • Don't punish your Ex by allowing your child to wiggle out of responsibility. Loosening the reigns because you just want to be a thorn in your Ex's side is a big no-no. "I know Mommy likes you to get your homework done first, but you can do that later." "Don't tell Daddy I gave you the extra money to buy the video game you've been working towards." If you need to get your negative emotions out, find another outlet. Voodoo dolls, skeet shooting and kick boxing can yield the same results, but with less of a parenting mess. Remember, work before play is a golden rule - and one that will help your child throughout their lifetime. Making sure to be consistent helps your child transition back and forth from your Ex - and back and forth to you too. 
  • Don't accuse. Discuss. Never remain quiet if something about your Ex's co-parenting is troubling you. If you don't have a good personal relationship with your Ex, create a working business arrangement. Communication about co-parenting is extremely vital for your child's healthy development. No finger pointing or you-keep-doing-this kind of talk. The best approach when communicating is to make your child the focal point: "I see the kids doing this-and-that after they return home from their visit. Any ideas of what we can do?" Notice there's not one "you" word in there. No accusatory tone or finger-pointing either.

Co-parenting is the real custody, part 1 of 2

 

 

Co-parenting is the real custody, part 1 of 2

Whether you are filing a custody suit in Dallas, Texas or another county in Texas, rarely is the situation when one parent will get the children ALL of the time and the other parent NONE of the time. Thus, the vast majority of custody cases are really about two parents sharing a child according to a schedule that works for the child under the particular circumstances of that child’s life. Most frequently, the dispute is over whether one parent or the other will have the Texas Standard Possession Schedule (frequently seen as about 40% of the time) or more and whether the other parent will have the rest of the time.  Parenting in these situations can be challenging, especially when the parents have differing styles and beliefs regarding discipline.

Deborah Serani in her article The Do's and Don'ts of Co-Parenting Well provides some good pointers for handling co-parenting. Here are her “Do’s” for co-parenting. In the next part of my series on Co-parenting, I will provide her “Don’ts” for co-parenting.

      Do's:

  • Commit to making co-parenting an open dialogue with your Ex. Arrange to do this through email, texting, voicemail, letters or face to face conversation. There are even websites where you can upload schedules, share information and communicate so you and your Ex don't have to directly touch base. 
  • Rules should be consistent and agreed upon at both households. As much as they fight it, children need routine and structure. Issues like meal time, bed time, and completing chores need to consistent. The same goes for school work and projects. Running a tight ship creates a sense of security and predictability for children. So no matter where your child is, he or she knows that certain rules will be enforced. "You know the deal, before we can go to the movies, you gotta get that bed made." 
  • Commit to positive talk around the house. Make it a rule to frown upon your children talking disrespectfully about your Ex even though it may be music to your ears. 
  • Agree on boundaries and behavioral guidelines for raising your children so that there's consistency in their lives, regardless of which parent they're with at any given time. Research shows that children in homes with a unified parenting approach have greater well-being.
  • Create an Extended Family Plan. Negotiate and agree on the role extended family members will play and the access they'll be granted while your child is in each other's charge. 
  • Recognize that co-parenting will challenge you - and the reason for making accommodations in your parenting style is NOT BECAUSE YOUR EX WANTS THIS OR THAT, but for the needs of your children. 
  • Be Aware of Slippery Slopes. Be aware that children will frequently test boundaries and rules, especially if there's a chance to get something they may not ordinarily be able to obtain. This is why a united front in co-parenting is recommended. 
  • Be boring. Research shows that children need time to do ordinary things with their less-seen parent, not just fun things. 
  • Update often. Although it may be emotionally painful, make sure that you and your Ex keep each other informed about all changes in your life, or circumstances that are challenging or difficult. It is important that your child is never, ever, ever the primary source of information.

Go for the high notes. Each of you has valuable strengths as a parent. Remember to recognize the different traits you and your Ex have - and reinforce this awareness with your children. Speaking positively about your Ex teaches children that despite your differences, you can still appreciate positive things about your Ex. "Mommy's really good at making you feel better when you're sick. I know, I'm not as good as she is." It also directs children to see the positive qualities in his or her parent too. "Daddy's much better at organizing things than I am."     

 

Tips for Understanding the Texas Standard Possession Schedule: Part II

 

Holidays are an important time of the year for most parents. In Texas, the Standard Possession Schedule provides specific dates/times for each parent to spend time with their children during the holidays. Not all holidays are addressed by the Texas Standard Possession Schedule. 

The Texas Standard Possession Schedule contains specific terms for possession of the children for both parents for some of the major holidays. Not all holidays are addressed by the Texas Standard Possession Schedule. Therefore, if there is a holiday that you would like to be addressed by the Court or by agreement, then you need to make sure that the terms of possession of the children for that particular holiday are addressed in any and all orders regarding possession of the children.

The following holidays are specified in the Texas Standard Possession Order and are not altered regardless of the distance that the parents reside from one another:

1.     Christmas;

2.     Thanksgiving;

3.     The Children’s birthdays;

4.     Father’s Day; and

5.     Mother’s Day.

In order to fully understand the Texas Standard Possession Schedule, it is important to know whether you are the “possessory conservator” or the “managing conservator.”

The managing conservator is also referred to as the “primary conservator” or the parent with the exclusive right to designate the primary residence of the children. The possessory conservator is commonly known as the parent that exercises their possession pursuant to the Standard Possession Schedule and/or the “non-primary conservator.”

Additionally, if you have children that are in daycare and/or are not yet of school age, then you need to review and obtain a copy of the school district calendar from the school district that the child would attend based upon his/her primary residence, if the child was attending school. This is the calendar that should be used in order to determine when your holiday periods of possession with the children should begin and end.

Christmas

Pursuant to the Texas Standard Possession Schedule Christmas is divided up between the parents into two separate parts, “a front-half and a back-half.” This allows each parent the opportunity to have possession of the children during the Christmas holiday in all years.

The front-half of Christmas in all years begins at 6:00 p.m. on the date that the children are released from school for the Christmas break and ends at noon on December 28. The back-half of Christmas in all years begins at noon on December 28 and ends at 6:00 p.m. on the day before the children return to school from Christmas break.

Pursuant to the Texas Standard Possession Schedule, the front-half and back-half of Christmas are rotated between the parents in even-numbered years and odd-numbered years.  If you are the possessory conservator, you will have possession of and access to the children for the front-half of Christmas in even-numbered years. The managing conservator will have possession of and access to the children for the back-half of Christmas in even-numbered years. If you are the managing conservator, you will have possession of and access to the children for the front-half of Christmas in odd-numbered years. The managing conservator will have possession of and access to the children for the back-half of Christmas in odd-numbered years. 

Thanksgiving

Pursuant to the Texas Standard Possession Schedule, Thanksgiving holiday is alternated between the parents each year. Thanksgiving holiday is not divided into a front-half and back-half like Christmas holiday. 

If you are the possessory conservator, you will have possession of the children for Thanksgiving holiday in odd-numbered years beginning at the time that the children are released from school for Thanksgiving holiday and ending at 6:00 p.m. on the Sunday following Thanksgiving.   The managing conservator will have possession of the children for Thanksgiving holiday in even-numbered years beginning at the time that the children are released from school for Thanksgiving holiday and ending at 6:00 p.m. on the Sunday following Thanksgiving.  

 

Tips for Understanding the Texas Standard Possession Schedule

 

There are times when parents get confused regarding which parent is entitled to possession of the children pursuant to a Texas Standard Possession Schedule. The key to eliminating the confusion is to understand how the Texas Standard Possession Schedule operates.  

Over the next several weeks, I will break down portions of the Texas Standard Possession Schedule and provide tips for understanding how it operates.

Weekend Periods of Possession:

The Texas Standard Possession Schedule states that the parent exercising possession pursuant to this schedule shall have possession of the children on the weekends as follows:           

“On weekends that occur throughout the year, beginning at 6:00 p.m., on the first, third, and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday.”

It is important to note that when you are determining which weekend is the first weekend of the month you should always look at Friday, not Saturday.  You look at Friday and not Saturday because Friday is the day that your weekend period of possession begins. For example, if the first day of the month falls on a Friday, then that is the first weekend of the month. However, if the first day of the month falls on a Saturday, then that is not the first weekend of the month. The following weekend would be the first weekend of that particular month. 

If you are the parent that is exercising standard possession, it is important to understand that the 1st, 3rd, and 5th weekends of the month are not the same thing as every other weekend. For example, if there is a month that contains a fifth weekend, then the parent exercising standard possession will have possession of the children for two consecutive weekends because the following weekend will be the first weekend of the month.

Weekday Periods of Possession:

The Texas Standard Possession Schedule states that the parent exercising possession pursuant to this schedule shall have possession of the children during the week as follows:                    

“On Thursday of each week during the regular school term, beginning at 6:00 p.m. and ending at 8:00 p.m.”

It is important to note that the Thursday periods of possession are only exercised during the regular school term and not throughout the year as are the weekend periods of possession.         

Additionally, during the regular school term, the parent exercising standard possession is entitled to possession of the children on Thursday of every week during the regular school term.

Final tip for the week:

It is helpful to plan ahead. Take a blank calendar and mark the days and times that are “your days” with your children. Then, send a courtesy copy to the other parent months in advance. This should assist both parents with minimizing any confusion regarding which parent is entitled to possession of the children on any given day or weekend.

Next week I will discuss holiday possession pursuant to the Texas Standard Possession Schedule.

 

Tips for Avoiding (or Minimizing) Summer Travel Woes

Summer is just around the corner and for many families this means fun travel plans and summer vacations.  But, if you have been through a divorce or are in the process of divorcing now, nothing can throw a wrench in your summer travel plans faster than an uncooperative ex with an ax to grind.  If your ex (or soon-to-be ex) is not the type to put their own sometimes questionable agenda aside for the good of the kids, planning and actually taking a summer vacation with your children can be a source of stress, anxiety, and tension for the entire family.

The most important thing you can do to avoid conflict and confusion that can surround your summer travel plans is to clearly designate your extended summer possession in accordance with your divorce decree and/or temporary orders.  Letting the other parent know that your designated days are off limits can help avoid disruption in your vacation plans and in any activities that you would like to schedule for your kids, like summer camp or swimming lessons.  Make sure that you provide the other parent with written notice of your summer designation, that your dates are clear, and that you send your notice in a manner that you can prove the other side received it later if need me (for example by certified mail or through your attorney).

Another good way to minimize the stress that can surround travel plans is to include provisions regarding passports and notice of international travel in your divorce decree and/or temporary orders.   Setting the procedure for international travel can bring comfort and security to both parents – bringing the traveling parent satisfaction in knowing that their travel plans will not be sabotaged at the last minute and allowing the non-traveling parent to take comfort in the fact that they know their child’s plans, flight numbers, destination, and contact information in case of an emergency.  Clearly establishing the ground rules for who will hold the child’s passport and how important travel documents will be exchanged can help avoid conflict and stress for everyone.

While it will be impossible to avoid every conflict about summer travel, advanced planning, clear divorce decrees or temporary orders, and proper notice to the other parent can go a long way.

Drug and Alcohol Use: What You Should Know Before Filing A Suit Affecting The Parent-Child Relationship In Texas

 

Over the past several weeks I have provided you with information regarding the most common methods of drug and/or alcohol testing used by courts in Texas in divorce and child custody matters. This week, I will discuss the method of drug testing known as “nail testing.” 

Nail testing is the newest form of drug testing being used by courts in Texas in divorce and child custody cases. Either fingernails and/or toenails can be tested to detect drug use. Like hair testing, nail testing has a longer detection period than a urinalysis drug screen.  Nail testing can detect drug use for a period of 3 months up to 8 months.  

When submitting to a nail test the nail is either clipped or shaved/scraped.   You must remove all nail polish and/or acrylic nails prior to submitting to a nail test.  Nail testing is generally used in cases where a person has no hair to test and/or if use of shampoos or other products that intend to alter hair or urinalysis test results are suspected. There are not many products on the market that claim to assist someone with passing a nail test. 

If you are considering filing for a divorce and/or a child custody matter in Texas, be sure that you could pass any method of drug testing commonly utilized by the Courts. Since hair testing and/or nail testing are the methods of testing used by courts in Texas that have the longest detection periods you should make sure that you could pass either a nail or hair test prior to filing a family law matter in Texas. Depending upon the drug consumed, the duration of use, and quantity consumed it could take as long as 9 to 12 months before you test clean on either a nail and/or hair test.

Testing positive on any kind of drug and/or alcohol test will have a negative impact on your divorce and/or child custody case in Texas. You will likely be awarded only supervised visitation with your children for an extended period of time. The Court will likely require your visitation to be supervised until you can demonstrate to the Court that any issues with substance abuse have been resolved. You could be required to submit to random alcohol and/or drug testing for an extended period of time.

Next week I will discuss some specific consequences associated with testing positive for drugs during the pendency of a divorce and/or child custody matter in Texas.

 

DRUG AND ALCOHOL USE: WHAT YOU SHOULD KNOW BEFORE FILING A SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP IN TEXAS: PART II

 

PART II 

HAIR TESTING  

Another common method of drug testing used by Texas courts during divorce matters and custody matters is hair testing. Generally, a 5-panel hair test is conducted by the testing facility unless other drugs are specifically requested to be tested. 

A 5-panel hair test will test for use of the following substances:

1.     Cocaine;

2.     Methamphetamines, amphetamines, ecstasy;

3.     Heroin, morphine, codeine;

4.     PCP; and

5.     Marijuana.

The main difference between a urinalysis drug test and a hair test is that a hair test can test for a longer period of use. Hair tests are generally used to test for use with someone that you believe has used drugs for a longer period of time rather than occasional use. Generally, a standard head hair test can detect use for 90 days or 1.5 inches of hair closest to the scalp. Therefore, there are people that can test negative on a urinalysis drug screen that generally tests for use up to 5 days for most illegal drugs and prescriptions and 30-40 days for marijuana, but will test positive on a hair test.   

Just like there are myths about how to “beat” a urinalysis drug test there are also myths regarding how to “beat” a hair test as well. A common method of attempting to avoid having to take a hair test is to shave off your head hair, cut your hair extremely short, and/or to color or bleach your hair prior to submitting to a hair test. It is important to be aware that if you shave and/or cut your head hair, then your body hair can be tested instead. Head hair generally tests for use for 3 months. The growth rate of the head hair is approximately ½ inch per month. Body hair however can test for use from 7 to 12 months because the rate of growth for body hair is much slower, and then the hair is dormant. So, it is not wise to cut or shave your head hair in an attempt to avoid a hair test because testing the body hair is likely the next alternative, which can detect use for a much longer time period.         

A common method of attempting to “beat” a hair test is to use shampoos that claim to reduce or remove any signs of drug use from the hair and/or to bleach and/or color your hair prior to a test. It is important to note that some of the shampoos can reduce the level of drugs in your hair, but they generally do not reduce the level enough to test negative. Coloring and/or bleaching your hair can reduce the level of drugs in your hair, but will not reduce the level enough for you to pass a hair test.

Some interesting things to be aware of when facing a hair test:

  • On average it takes roughly 100-150 strands of head hair to perform a test.
  • Marijuana is more difficult, but not impossible to detect in a hair test.
  • If your hair does test positive in the initial test, the hair is tested again to confirm the initial positive by confirming with another methodology.

Next week I will discuss part III of a IV part series. Next week will focus on nail testing.

PART I: URINALYSIS

 

DRUG AND ALCOHOL USE: WHAT YOU SHOULD KNOW BEFORE FILING A SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP IN TEXAS

 

PART I

URINALYSIS DRUG TESTING  

          Urinalysis drug and/or alcohol testing is a form of testing that is frequently ordered by courts in Texas in cases involving children. Urinalysis drug and/or alcohol testing can detect a broad range of drugs. Urinalysis drug and/or alcohol testing can detect use from 3 days up to a week depending on the frequency and/or quantity of use. Also, the type of substance consumed can also impact the detection window. For example, if a person consumes marijuana on a daily or regular basis, a urinalysis drug and/or alcohol test could detect use up to 40 to 45 days. A person’s body type can also impact how long a substance remains detectible in a urine sample. For example, there are certain drugs, like marijuana that remain detectible for longer periods in individuals that weigh more because the THC in marijuana sticks to a person’s body fat.   A substance like cocaine is usually only detectible in a urine sample for a much shorter time period, generally 3 to 7 days.

There are many myths regarding how to “beat” a urinalysis test. There are many products on the market that purport to guarantee that you will “pass” a urinalysis drug and/or alcohol test. There are also some home remedies that also claim to help you “pass” a drug and/or alcohol test. It is important to be aware of that when you take measures to tamper with and/or alter the results of a urinalysis drug and/or alcohol test the test results themselves can illustrate that the test may not be accurate because of an attempt to alter the true results. The most common methods that many people attempt when it comes to urinalysis drug and/or alcohol testing is to consume excessive amounts of water, to mix household ingredients such as bleach with the water that is being consumed, or by consuming products that are sold by companies that claim to be able to assist you with “passing” your test. Some people even attempt to use someone else’s urine when submitting a sample for a test. 

Below are some points to be aware of prior to attempting to alter your urine sample:

  • Many drug and/or alcohol testing facilities used by courts in Texas have personnel that supervise the urinalysis testing. Therefore, attempting to use another person’s urine sample will likely not be successful and you will more than likely be “caught in the act.” 
  • Consuming excessive amounts of water and/or other products will more than likely cause your creatinine level to be extremely low.  Creatinine is metabolic waste found in urine.  When you consume excessive amounts of liquid your creatinine levels decrease drastically.  The normal range of a person’s creatintine level differs for men and women.  However, the general rule of thumb is that if the creatinine level is below 20 mg, then the sample is considered to be diluted.
  • Most courts in Texas consider a diluted sample as the equivalent of a “positive” result. 

The best way to test negative and “pass” a urinalysis drug and/or alcohol test is to stop using all substances that could be tested at least 45 to 60 days prior to filing for divorce and/or a suit affecting the parent-child relationship in Texas.

Over the next several weeks I continue to provide helpful information regarding the impact that illegal drug use and/or substance abuse issues may have on your case. Next week I will discuss part II of a IV part series. Next week will focus on hair follicle drug testing.

 

Tennessee Mom in Hot Water for Baptizing Children and What You Should Know About Religious Decisions in Texas

In a recent case out of Tennessee, a mother could face criminal contempt and jail time for baptizing her two children without the father’s knowledge or consent. The issue in this case centers on the mother’s violation of a court order requiring all major decisions regarding the religious upbringing of the children to be made jointly by agreement with the children’s father. If they could not agree, the order required them to attend mediation to resolve their dispute - which never happened.

Father believed that the children, 5 and 7 at the time, should be older when baptized. Mother disagreed and took matters into her own hands, baptizing the children without agreement or even notice to the father. After learning of the baptisms after the fact, father requested that mother be held in both civil and criminal contempt.   The trial court held mother in civil contempt, but dismissed the criminal contempt action. Mother appealed and the Court of Appeals reversed both order holding mother in civil contempt and the dismissal of the criminal contempt action, meaning mother still faces fines and jail time for her actions.

Mother argued on appeal that the parenting plan requiring agreement with the father on the religious upbringing of the children amounts to unconstitutional interference with the right that a divorced parent has to influence their children with their religion. Father and the Tennessee Court of Appeals disagree, maintaining that mother should face criminal contempt proceedings due to her violation of a court order.

In Texas unless otherwise limited by court order, unlike the Tennessee order requiring parents to agree, §153.074 of Family Code gives parents the right to direct the moral and religious training of the child during the period that a parent has possession of the child. This can open the door for unilateral action when it comes to religious decisions (like the baptisms in the Tennessee case), especially when parents disagree or have difficulty communicating. When divorcing parents are not on the same page as far as religion is concerned, it is wise to address the right to direct the moral and religious training of the children directly to avoid confusion or conflict should disagreements arise later on.

Please click on this link to review the Tennessee opinion.

DRUG AND ALCOHOL USE: WHAT YOU SHOULD KNOW BEFORE FILING A SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP IN TEXAS

 

INTRODUCTION

Deciding between two disputing parents as to who should have custody of a child can be a challenging undertaking for any judge. Although it may seem intrusive to people involved in the court system, it is important for the judge to have as much information about the parenting qualities of each person to make the best decision for the children. One issue that parents should be aware of that may come into play during their case is the issue of consumption of alcohol and other drugs.   In a large number of family law cases, one of the ways to differentiate between the capabilities of the parents is to present evidence that a parent is using illegal drugs or is excessive with their consumption of alcohol. 

It is very common in Texas for the Court, either on its own motion or the motion of either or both parties, to order drug and/or alcohol testing of one or both parents. Generally, an alcohol and/or drug test is requested at the time of the temporary orders hearing (typically the first hearing held) in a suit-affecting the parent-child relationship, which includes a divorce action. A motion for drug and/or alcohol testing can be requested instanter, which means that you may not have any advance notice that the Court or the other parent is requesting that you submit to a test prior to the temporary orders hearing. Therefore, whether or not you are the parent that may be using alcohol excessively/using illegal drugs there are things that you should know about this issue prior to filing a Petition or Counter-Petition in a suit affecting the parent-child relationship. 

The first point to be aware of regarding this issue is that if you are using illegal substances, you need to stop immediately and seek professional assistance if you believe that you have a substance abuse problem. You should not file for divorce until such time that you believe that you could pass a random drug/alcohol test because you could be ordered to submit to a random drug and/or alcohol test by close of business on the day of the initial temporary orders hearing.

There are many myths to drug/alcohol testing to be aware of no matter what side of this issue that you may fall. Over the next several weeks, I will be providing you with information regarding the common types of drug/alcohol testing that you may be ordered to submit to, including common methods to try to “beat” a test. 

Over the next several weeks I will be providing helpful information regarding the impact that illegal drug use and/or substance abuse issues may have on your case. Next week I will discuss part I of a 4 part series, which will include:

PART I

URINALYSIS DRUG TESTING

  • ·        ALCOHOL
  • ·        DRUGS

PART II

HAIR FOLLICLE DRUG TESTING

  • DRUGS 

o       HEAD HAIR

o       BODY HAIR

PART III

  • ·        FINGERNAIL SCRAPES/OTHER NAIL TESTING

PART IV

  • ·        FREQUENTLY ASKED QUESTIONS

CONCLUSION

Please feel free to contact us if you have questions for a Texas divorce or family law attorney.

 

April 1st is More than Just April Fools' Day: Missing the Deadline to Designate Extended Summer Possession in Texas is no Laughing Matter

 

All jokes aside, your failure to timely designate your period(s) of extended summer possession could impact your summer plans.   It is that time of year again for all divorced and/or separated parents to designate the dates that they wish to have possession of their children for summer 2012. So, before you start planning that well-deserved summer vacation with your children make sure that you have sent the proper notification to the other parent. 

The Texas standard possession order for summer visitation requires both parents to take action by either April 1st or April 15th of each year if they wish to select dates for summer visitation with their child/children. 

If you are the non-custodial parent/possessory conservator, then you must submit, in writing, the dates that you wish to have extended summer possession with the child/children by April 1, 2012. Failure to submit your desired dates on or before April 1, 2012 may result in you having no choice regarding your extended summer possession this year.   Most orders state that if the possessory conservator fails to designate his or her extended summer possession on or before April 1, then they shall exercise their extended summer possession for that year beginning on July 1 and ending on July 31.

If you are the custodial parent/primary conservator, then you must submit, in writing, the dates that you wish to have extended summer possession with the child/children by April 15, 2012. Most orders state that if the primary conservator fails to designate his or her extended summer possession on or before April 15, then they shall elect their extended summer possession for that year by providing the other parent conservator with fourteen days' written notice of the dates that they have selected.

Key Points to Remember when Selecting Dates for Summer Possession: 

 

  • If you are the mother do not select dates that interfere with Father’s Day Weekend, which is the weekend of June 15, 2012;
  • If you are the father do not select dates that interfere with Mother’s Day Weekend, which is the weekend of May 11, 2012;
  • Please remember that all summer possession must be completed within a specified time period. The time period for exercising summer possession begins on the day after the child's school is dismissed for the summer vacation and ends no later than seven days before school resumes at the end of the summer vacation. Be sure to look at your child’s/children’s school calendar to ensure that you comply with this requirement.
  • If you are the possessory conservator and you reside within 100 miles or less from the primary residence of the child, then you can select 30 days for extended summer possession. You do not have to select 30 days in a row. You can break up the days into no more than two separate periods of at least seven consecutive days each.
  • If you are the possessory conservator and you reside over 100 miles apart from the primary residence of the child, then you can select 42 days for extended summer possession. You do not have to select 42 days in a row. You can break up the days into no more than two separate periods of at least seven consecutive days each.

If you need help designating your summer access, contact one of our Texas custody lawyers for help.

 

Statutory Presumptions Don't Apply to Modification Proceedings

In a modification of orders regarding children following a Texas divorce, sometimes lawyers get confused about the application of presumptions like the presumption of the application of guideline child support or the presumption against joint conservatorship when there has been domestic violence. In fact, neither of these presumptions apply in a modification proceeding. Likewise, the parental presumption does not apply in a modification proceeding. So, if you have a case for modification of child support where the obligor makes more than the ceiling amount, the court is not bound by the strictures of the guidelines and the burden of proof required in a divorce or original proceeding to exceed the guidelines. The court may set any amount of child support that the court finds is in the best interest of the child based upon the evidence.

To read the Court of Appeals’ decision, click here: See In re S.E.K., 294 S.W.3d 926 (Tex. App. – Dallas 2009).

Temporary Orders in Modification Cannot Change Custody

 Ruling prohibiting moving the children as temporary order in modification had the effect of changing the primary custody designation so was improper.

When a suit for modification of issues related to conservatorship is filed, temporary orders may only be granted in certain situations provided by statute. For example, a court may not change custody (primary right to determine domicile in joint managing conservatorship) unless it is necessary to prevent some immediate danger to the child. If the underlying order gives the parent the right to determine the child’s domicile without restrictions, the court in a temporary hearing upon modification cannot impose new restrictions, like a domicile restriction, because such would have the effect of changing custody. Or, at least, that’s what the Fort Worth Court of Appeals said on January 17, 2012. In re Strickland, 2012 WL 117614 (Tex. App. – Ft. Worth 2012, orig. proceeding), click here for a full copy of the opinion.

In Strickland, the mother was appointed joint managing conservator with the right to establish the primary residence of the children without restriction on the domicile. Father filed for modification, stating that the mother intended to move to Florida and seeking a temporary order preventing the move. The trial court judge restricted the mother’s residence to Denton County, Texas and counties contiguous to Denton County while the modification was pending. Mother sought mandamus relief from the Fort Worth Court of Appeals, which was granted.

The problem with Mr. Strickland’s situation was that he didn’t insist on a geographic restriction in the divorce decree. If he had, this whole dispute would have turned out differently. Take-away lesson: think of the possible consequences of the wording of the order before you agree to it, so you don’t regret it later.

 

Father's Winning Custody More

 

The Increase in Custody Wins for Dads Shows Embrace of New Family Roles

Divorce lawyers in Dallas and Texas generally have commented recently on a growing trend toward a more even viewing of single dads winning primary custody. Fathers are more involved in their children’s lives and mothers have increasingly entered the workforce, making is more common for fathers to seek and gain primary care of their children. Although Texas law doesn’t provide for an equal split of time with parents, more judges are willing to consider a 50/50 arrangement in the right fact situations. (Texas law provides a standard possession schedule that accommodates the splitting of weekend, but leaves the children in one parent’s house during the week.) This trend bears out nationwide, according to an article by Bloomberg. Single fathers now account for 8% of all American households with children. Between 1965 and 2000, men more than doubled the time they spent playing with and teaching their children, from 2.5 to 6.5 hours per week, according to a 2007 study by the Russell Sage Foundation, a New York based social science research organization. Mothers spent 12.9 hours per week in 2000.

Read source article: Single-Dad Courtroom Wins Show Greater Embrace of New Families

 

Popular Myths About Shared Parenting

Sometimes separated or divorced parents are keen to work out a good shared parenting arrangement but are discouraged by the prejudices of friends or professionals. We will unravel some common myths about shared parenting in order to help those parents get past such objections.

MYTH: Kids need to spend most of their time in one home

Reality: This is an understandable leftover from hopes that our marriage would thrive and our kids would be in one happy home and an unquestioned presumption of many lawyers and counselors. It’s a view that seriously underestimates the adaptability of children and fails to appreciate what is really important for them. The stability that children need is more than geographical. It is emotional stability the stability of meaningful, continuing relationships. The emotional stability that’s critical for a child’s healthy development comes not only from ongoing relationships with parents, but also from their community. The child’s world is those relationships that arise from associations and the sense of belonging that these important connections bring.

MYTH: Kids need to know where they live and not be going back and forth

Reality: A clear, simple parenting plan plus goodwill from both parents will quickly get children into a routine. Breaking up a week into smaller chunks may mean that parents don’t go long without seeing their children, but it may also mean children are constantly changing over. Changeovers are often the hardest time, so lean toward a pattern that has the fewest changeovers, except for very small children.

Q: No sooner are my children settled with me than they have to gear up to change again. Is it better if the children stay in one place and the parents rotate?

A: It needs a dependable communication system to assist with smooth changeovers and a high degree of dedication and positive spirit. If they are staying in the family home where they have been living, this may only be possible for a time as the home may have to be sold for your financial settlement. Maybe you should initially consider two- or three-week blocks of time to allow for a proper settling-in before the children have to uproot themselves again.

MYTH: Infants under three shouldn’t spend nights away from Mom

Reality: This view was based on outdated theory and is contrary to recent research. Attachment theory tended to emphasize the exclusivity of the maternal bond and its continuity as being crucial to healthy development. There is no consistent evidence that a night with their father is going to cause harm. If children are well attached to the other caretaker (Dad), they should soon become used to him coming at night if needed, for example. There is growing evidence that overnight stays in infancy form a meaningful basis for parent child relations.

At times, Mom’s own attachment to her child interferes with developing a suitable parenting arrangement. Maternal anxiety is a very powerful protector of young infants and therefore deserves respect. Overnight contact with babies and infants (approximately up to eighteen months) is not crucial for cementing parent– child bonds; daytime contact periods are the building blocks.

MYTH: The more homey, hands-on parent is better equipped for childcare

Reality: Not necessarily, though this parent will have confidence and experience. Emotional bonds are created and strengthened by parents being available and doing things with and for children, but it’s not just this. It’s listening and talking empathically with your children, hanging out together, sharing parts of your life with them, and helping them learn to discover independently that creates bonds.

Q: It can’t be right for our twelve-month-old to be away from me for long periods even though he knows his dad?

A: If he has had time with Dad, then he will have an attachment, meaning he’s okay for increasingly long periods without you in Dad’s care. Keep Dad informed about established routines so he can have a settled baby to bring back to you, which will enhance your confidence in his care. Some dads aren’t that good with babies on their own--let his relatives help if they’re local.

A silver lining to the disappointment of separating is children get the chance to develop a closer relationship with parents who are committed to shared parenting but who weren’t very available before, and who can therefore develop their parenting skills more effectively. A parent who appeared to contribute little to family life deserves the chance to become a more involved parent.

MYTH: Where there’s conflict between parents, there should be little or no contact

Reality: Lawyers and counselors sometimes suggest that the only solutions to conflict between separated parents are: to reduce or eliminate contact between the parents or between father and children, or to have supervised pick-ups and drop-offs. This is inconsistent with research, which shows that good contact results in reduced conflict between parents. Rather than seeing hostility as a disincentive to shared parenting, it’s better to view it as an indicator of needing a better parenting plan.

In the face of parental tensions, children tend to align themselves with one parent, implying that the other parent is at fault. This is a potentially misguided assumption as to what the child’s behavior means: it confuses the picture for parents and their advisers, and should not be the basis for alterations in the arrangement.

KEY MESSAGES

  • Myths need challenging and realities need facing.
  • Children need two homes when they have two separated parents.
  • Organize the program to suit your circumstances, not vice versa.
  • Infants require special consideration when part of a shared parenting arrangement.
  • Shared parenting allows both parents to be hands on.
  • Both quality and quantity are important in parenting.

This article was edited and excerpted with permission from Shared Parenting: Raising Your Children Cooperatively After Separation by Jill Burrett and Michael Green

A Family Friendly Approach to Resolving Child Access

Posted by Michelle May O'Neil on August 22, 2011

When it comes to establishing each parent’s individual roles and their levels of involvement, influence, and time spent with the children, the terms most discussed and debated are joint custody, sole custody, and visitation. Generally, physical child custody (whether sole, shared, or split) really comes down to the amount of time spent with one’s children. Custody in the legal sense (that is, legal custody) governs who will make what types of decisions affecting the health, education, and general welfare of the children and under what circumstances such decisions will be made.

Parent and child un-friendly terms

Basically, without further definition or limitation, a parent with sole legal custody calls all the significant shots with or without the other parent’s “consent” or input. The term custody often provokes anger and resentment between bickering parents. The word custody in its basic and primary sense suggests possession and control.

In moderate to highly contentious cases, the initial fight for control is often a key catalyst to a perpetual battle. The children’s feelings and emotional well-being often get lost in all the posturing that accompanies one’s desire to show the other parent who is in the driver’s seat.

The counterpart to custody is visitation. I “visit” clients in jail. Priests “visit” the dying in hospitals and nursing homes. Doesn’t “visitation” suggest a short stay? Generally, we visit people or places that we don’t see too often. When we are young we shouldn’t be “visiting” our parents, we should be spending time with them. A parent’s perception of terms like custody and visitation often fosters power-based and position-oriented discussions. This is usually not productive when the lives of our children are at stake.

Changing words for the better

In recognizing the power of suggestion and influence that can be derived from legal terms and principles in the area of family law, legal wizards have made significant efforts in the last decade or so to use more appropriate terms when discussing how to govern the lives of our children and the parent-child relationships that are affected by separation and divorce. These days, custody and visitation are more appropriately discussed in terms of child access and parental involvement.

Parents who are caught up in “child access disputes” should take special care to focus their respective and combined efforts in arriving at a fair and reasonable “parenting plan” and a “residential schedule” that works best for their children.

No schedule = no stability

When there is an ongoing fight over child access, it is important to realize that the term stability, in the context of fighting over the division of parental time, is an oxymoron if there is no agreed-upon schedule. When there is an ongoing power struggle to maximize or minimize parental time, the life of the child is anything but “stable.”

Children adapt. The theories or justifications of years past, the “traditional visitation schedule” if you will, that subscribed to the notion that a child needs to only regard one parent’s house as “home” and that he must sleep in the same bed every night is far less important than often proclaimed.

A 50-50 schedule works

While it is not presumed that 50-50 is best for all children in all situations, it sure seems like a fair place to start. Furthermore, I have found that if the parents truly opt to act in accordance with the children’s best interests and if each parent operates from such a position of theoretical and practical equality, it is far more likely that one parent will voluntarily, if, when, and as needed, make the sacrifice of diminished time if it is truly beneficial to the children’s schedule.

Once the power struggle for control and the claim for the overwhelming majority of time are abandoned, it simply will not be as important when compared to what may genuinely be in the children’s best interests.

Court orders must be precise

If the division of time is not mutually satisfactory, or if it is not otherwise possible to arrange a basic schedule with a certain amount of predictability (along with situational flexibility, respect, and cooperation), a court ordered schedule will ultimately be forced upon you. In such situations, any written document or court order must leave nothing open to interpretation. This is still far easier and far less damaging to the children than the constant tug of war that often will occur in parental skirmishes.

How to create a schedule

There are many ways to approach the development of a residential and access schedule. Rather than explain or justify any of them, let’s start with a few basic principles.

  • There is no moral entitlement to anything more than equally dividing the time the children spend with each parent.
  • There is no legal entitlement to equal parenting time.
  • If you and the other parent were both completely committed to working out a schedule that maximizes each parent’s time with the children, you could do it.
  • The children’s best interests are usually served when measured within the reasonable and practical limits of life in general and balanced in particular with the parenting styles and attributes of each parent.
  • If each parent felt secure that they would truly have reasonable and liberal time and access with their children, without being unreasonably rebuffed, the counting of overnights would become less important and a more stable schedule (whatever the percentage of time comes to be) would be more likely to develop on its own.
  • The best schedule is one that minimizes conflict and maximizes the children’s time with each parent.

Although maximizing parental time is very important, it should yield to the best interests of the children. And obviously, each parent’s differing views about what is or is not in the children’s best interests is one of the many contributors to child custody chaos. The desire for power and control are other major contributors.


This article was excerpted for Divorce Magazine with permission from the book Stop Fighting Over the Kids by Mike A. Mastracci

Myth: 12-Year-Old Children Get to Choose Where They Live

This is an excerpt from the book I co-authored, “All About Texas Law and Kids.”

People frequently ask, “When my child turns 12 can’t she decide to come live with me?”  This is probably the biggest myth in all of family law.

When a child turns 12, she is entitled to express an opinion about with who she wants to live. The judge still makes the final decision based on the child’s best interest. Before the age of 12, the child has no right to express an opinion in the court proceedings.

A child who is at least 12 years old begins to have opinions, and sometimes strong opinions, about her living environment. The judge remains the final authority on where the child lives so the judge can examine the basis of the child’s choice and her motivations. For example, if the child is being defiant in Mom’s house because she doesn’t like Mom’s rules, and Dad lets the child run wild, the judge will not likely listen to the child’s desire to live with Dad. Or, if Dad promised the child a car if he “picked Dad,” again, the judge will not likely listen to the child’s desire. However, if the child wants to go live with Dad because Dad’s house is within walking distance of the natatorium and the child is a competitive swimmer, then the judge might well listen to the child’s wishes.

Prior to September 1, 2009, the law allowed the child to file a written preference as to where she wants to live. Many judges disfavored this law and the practice of some lawyers representing a parent in obtaining the child’s signature on the written preference. Due to the disfavor and frequent abuses in that system, the Legislature eliminated the written preference statements effective September 1, 2009. HB 1151 81st Legislature, S3. A child may now express his or her preference, but not in writing. Upon request of a party at a trial hearing, a judge must interview in chambers a child 12 years or older. As one judge astutely noted, the law may require the judge to talk to the child in chambers, but the law does not tell him what to ask. For a judge who disfavors “putting kids in the middle,” even making such a request may harm a parent’s request for conservatorship.

Fathers Really Do Have Rights

Posted by Michelle May O'Neil on July 25, 2011

Like the gay rights ("Marriage Equality") movement, black civil rights movement, and feminist movement, the Fathers' Rights movement is grounded in constitutional rights and imperatives. It has grown out of the very real changes in men's traditional roles in Western society, and the current generation's more egalitarian attitude towards shared parenting, which has resulted in gender neutral custody laws in virtually every state of the United States. Despite the changing laws on the books, there is still a perception that there is a gender bias in family law, and that fathers are discriminated against in custody decisions.

As family law attorneys in Dallas, TX, we regularly see custody disputes first hand. Although we represent mothers and fathers in equal number, we are no longer surprised when fathers are awarded custody rights. Sole custody agreements are a vanishing breed in the family law practice. Today, most fathers we meet with are seeking at least some form of joint custody, whether it is decision making or shared parenting.

A semi-typical case where a change of custody to the father may happen could be when a teenager declares that he/she'd rather live with Dad. (Those cases are usually resolved pretty quickly -- in most courtrooms, teenagers get what they want.) Judges, law guardians, and forensic psychologists are more enlightened these days about the rights of fathers, and the rights of children to be raised by their fathers. The fact is that fathers who are active and involved in raising their children are almost always given the opportunity to continue that role post divorce.

The value of fathers cannot be denied. But neither can the economic incentives that play a major role in custody disputes. For every father that has a good faith motivation for seeking primary custody (he is more bonded to the children, or the mother is mentally ill or drug addicted), there is a father who hasn't seen his children in months but declares upon being served with divorce papers that he should have custody. After all, he can do as good a job as the mother, and so why shouldn't he receive child support?

Recently, Jacqueline Harounian, Partner at The Law Firm of Wisselman, Harounian & Associates, did a radio program about fathers' rights. Many of the callers were men who felt victimized by high child support payments, and harsh child support enforcement measures, including wage garnishments, and incarceration. While the Family Court can grant relief in limited cases, the truth is that the government is unyielding and unsympathetic to so called "deadbeat dads" who owe child support. The sad reality is that many of these fathers do not even have a relationship with their children. Statistics show a strong correlation between active and involved fathers and those who willingly pay child support. (It must be mentioned that the system is just as punitive to mothers who owe child support, and more and more, mothers are being jailed for contempt for violating custody orders.)

Advice to those fathers who are concerned about child support? If you are seeking financial relief from your child support obligations due to a change of circumstances (such as job loss, or illness) run -- don't walk -- to Family Court. Do not let arrears accumulate, because there is very little that can be done to address it retroactively. But more importantly, be an active and involved father for your children. Children need mothers and fathers. They need financial and emotional support from both parents. Raising children costs money --- lots of it. But the non-monetary rewards to both children and their fathers are incalculable.

Hat tip to Jacqueline Harounian for her May 13, 2011 post                                                                                                                                                                                           

Supreme Court Finds No Automatic Right to Counsel in Child Support Contempt Proceedings

The U.S. Supreme Court has found no automatic right to counsel for indigent civil defendants facing jail time, though it ruled on behalf of a father who served a year in prison for failing to pay child support.

The father, Michael Turner, was deprived of his 14th Amendment right to due process, the Supreme Court ruled in a 5-4 decision.

Free lawyers aren't required in such situations, but states must have procedural safeguards in place to help determine whether the parent is able to comply with the support order, according to the majority opinion (PDF) by Justice Stephen G. Breyer.

Turner had told the trial judge who sentenced him to prison that he was unable to pay because “dope had a hold to me” until he broke his back and was laid up for two months. “And, now I’m off the dope and everything,” he told the court. “I just hope that you give me a chance.”

The judge sentenced Turner to a year in jail without making an express finding about his ability to pay. Turner's appeal, brought with the help of a pro bono lawyer, argued he had the right to counsel at his contempt hearing.

Breyer's opinion found that Turner did not get due process in his case, but said a lawyer was not an automatic requirement.

The 14th Amendment’s due process clause allows a state to provide fewer procedural protections to civil contempt defendants than in a criminal case, which is governed by the Sixth Amendment, Breyer said. He noted that both parties in a child support case are often unrepresented by lawyers, and providing a lawyer to just the noncustodial parent “could create an asymmetry of representation” altering significantly the nature of the proceeding.

He also noted the argument of the Solicitor General that alternate procedural safeguards can help reduce the risk of wrongful incarceration. They include: notice that ability to pay is a critical issue, the use of a form to elicit financial information, an opportunity for the defendant to answer questions about his financial status, and an express finding by the court on ability to pay.

Breyer said his opinion does not address a situation where child support is owed to the state, possibly as reimbursement of welfare payments to the parent with custody. Nor does the opinion address the due-process requirement for counsel in a particularly complex case.

Four dissenting justices agreed there is no right to appointed counsel for indigent defendants facing incarceration in civil contempt proceedings. They would not have reached the issue of the need for alternative procedural safeguards.

The ABA had argued in an amicus brief that poor people should have the right to a lawyer in civil contempt proceedings carrying a threat of jail time. The case is Turner v. Rogers.

 

Hat tip to Debra Cassens Weiss for this June 20, 2011 post to the ABA Journal

 

Information Concerning Kids and Cars from "The Car Seat Lady"

Posted by Michelle May O'Neil on May 16, 2011

          I came across an informative video clip today by Dr. Alisa Baer, also known as The Car Seat Lady. Dr. Alisa Baer explains the 5 key steps outlined in the new American Academy of Pediatrics (AAP) Car Seat Recommendations. These new guidelines were published on March 21, 2011.  It is important that you have the most up to date information to keep your child as safe as possible in the car.

The basic break down of these new guidelines is a 5 step tier system. Step one is “Rear-facing.” This tier is the safest for infants and toddlers in a car seat because it best protects from brain and spinal injury in the event of a crash.  This step is recommended until a child reaches the age of at least 2 years old. Note that children 12 years or younger should always ride in the back seat of a car. Step two is “Forward-facing” in a car seat. Step three is a “Booster Seat.” Step four is forward facing in the back seat with a “Shoulder/Lap Belt.” Step five is the “Front Seat” with a shoulder/lap belt. This fifth step is the least safe for your child and should not be rushed into.

In this video, Dr. Baer explains all of the new recommended steps and their safety aspects, including proper car seat and seat belt placement and car seat harnessing, along with helpful graphics.

To watch the video click this link: http://vimeo.com/21282791. You can also get more information from The Car Seat Lady at www.thecarseatlady.com.

WHO GETS TO INTERVIEW YOUR CHILD?

Posted by Michelle May O’Neil on May 2, 2011

The United States Supreme Court long ago decided that matters concerning the management of the family were best handled by the states and their courts rather than the federal judiciary. For that reason, it is fairly rare for domestic relations cases to be decided by the Supreme Court of the United States. When it comes to family matters, only when questions affecting the U.S. Constitution arise does it warrant the highest court in our country getting involved.

Last week, this rare occurrence did happen in two separate matters, both in the state of Washington. The Supreme Court heard argument in two cases: Camreta v. Greene and Alford v. Greene, 588 F.3d 1011 (9th Cir 2009).  Both were heard in that state’s federal court and both cases were then appealed to the U.S. Court of Appeals for the 9th Circuit which covers the western United States. The U.S. Supreme Court decided that these cases warranted attention because there were important constitutional issues involved, 131 S. Ct. Reptr 456,457 (2010).

 

It is a commonly known fact that we all have freedom from unreasonable search and seizure by government personnel. This usually applies to police investigating what they believe to be a crime, but is applicable to any government personnel. In the late 1890s the United States also adopted the view that people have the right to privacy. In addition, the U.S. Supreme Court has consistently held that people have the primary right to raise children in accordance with their wishes and that government interference in family matters will be subject to the highest scrutiny.

 

The two cases argued last week involve government investigations into allegations that children were being abused by a parent. There are few subjects more problematic than family child abuse. This is due to several factors, one of which is the issue that children are usually unreliable witnesses. But as these two cases properly observe; they are usually the only witnesses where parental abuse is alleged. Another issue is that the parent who is not the subject of the allegations faces the worst dilemma a human being can endure. We may not love, or even like our spouse anymore, but it is rare that an attitude would develop toward that person that would allow for the thought to be entertained of a parent actually being capable of physically abusing their own flesh and blood.  

 

In the Greene case it seems investigators were contacted by the school of a seven year old child. The school had information suggesting the Father might have sexually abused the child. Before any warrant was obtained and without notifying either of the child’sparents that an investigation was underway, a law enforcement official and an employee from the county agency designated to investigate such allegations went to the child’s school to interview the child.

 

Although the child gave conflicting statements as to what occurred, as is often the case, the state prosecuted anyway. Ultimately, the Father was acquitted. At that time the mother sued the state for invading her child’s privacy and conducting an unreasonable search of her daughter without permission of either parent.

 

The question for the Court to decide is whether government officials have the right to interview your child without your permission, a warrant, court order or other exigent circumstances where it would be impossible to get those forms of permission. In this case, the individuals who did the interviews were state welfare officials and police officers. In theory, however, teachers, principals and guidance counselors are government officials, as well, so the decision could have a far wider impact than just the law enforcement community. In the second case, it was the child welfare authorities who questioned the child, not the police.

 

There are difficult questions associated with these types of scenarios.  If a child witnessed an accident or was the victim of a crime not committed by a parent is parental permission or a warrant required to interview the child? The child is not the same person as the parent. Is there a higher level of due process required because the parent is an alleged perpetrator?  

 

We live in an age when any parent could find themselves in a situation where a child gets angry as a result of an altercation with their parent and complains to school officials. The school officials are required to report to law enforcement anything that they reasonably believe constitutes abuse. It puts school personnel in a precarious position as young children, in particular, are highly impressionable and not the best reporters of facts.

 

These allegations are very, very serious and have both custodial and criminal implications that are quite far-reaching. If you find yourself in this position, seek independent advice from an attorney before responding to any allegation that you have done harm to a child; even if you regard the allegation as frivolous.

 

 

Hat tip to Mark Ashton for his March 9, 2011 post

10 Positive Steps for Better Parenting

 

1. Be actively involved with your kids' activities. Spend your time with them in their element. Be a coach or a leader for their sports or other activities. Attend their performances and games. Volunteer. Cheer for them. Help with their homework. Read to and with them. Play with them! You can do different things with kids at each age.

2. Appropriately compliment kids for their good effort or results. You don't have to say nice things only if they "win". Give them positive support for their effort and encourage them to keep trying. Winning is great, but it's also fun just to play. Make sure the kids know that you are proud of them whether they win or loose.

3. Appropriately compliment the other parent. Make nice comments to the other parent and around the kids.  You don’t have to lie or be insincere, but there's always something nice you can say. If you can't think of something nice to say, don't say anything.

4. Focus on the good. Whether it is your child’s grades, an art project, effort in cleaning their rooms, riding a bike, playing well with others, etc. let them know that you are pleased with them. At any age, you can find something a child is doing well and show appreciation. If you reinforce good behavior by complimenting it you are more likely to see it more often. Don't dwell on what a child is doing wrong all the time. Give them something to remember that you praised them for and they will strive for it.

5. Encourage kids to volunteer and serve others. Making a spirit of volunteerism and helping a part of the kids' upbringing, so that it seems a natural and normal part of life, is one of the best things you can do for kids. Everyone, at some time, will need help from others. It's a good idea to "pay it forward" --donate help in advance.

6. Talk about the best part of the day with your kids. It helps them (and you) focus on the good things that happen. You and your children will feel better if you think about the positive things, rather than just dwelling on what went wrong during the day. Developing this habit can help elevate everyone's mood.

7. Remember that kids see what you do and hear what you say. They really pay attention to what you do and say (and how you say it). You will probably see some of your actions and habits in their behavior. You certainly want to see your children doing good things, so you need to set an appropriate example. Try to be a good role model in the things you say and do.

8. Learn to appreciate kids' music, books and games. Not everything they like is going to be worth while, but it is too easy for parents to overlook or downplay kids' culture. Parents should look for what matters in their kids' lives. If you show a genuine interest in your kids' activities and interests, you can be more of a factor in their lives. You will be better able to relate to them and enjoy time with them.

9. Encourage friendships and sharing. This can be done in part by setting a good example, but you may have to explain things to children periodically about sharing as they get older. Do what you can to make it possible for them to do things with their peers so they can develop friendships. Equally as important, don't put up barriers that inhibit the kids from being able to participate in activities with friends who are important to them.


10. Be a good host. When your kids want to have friends over, make it possible. You may need to have a supervisory role, which will vary according to the age of the children, but help your children out when you can. Get to know their friends and welcome them to your home. It's always better to have them hanging out at your house as apposed to roaming the streets.

 

Hat tip to Dick Price for his December 1, 2008 post

Spring is in the Air and the Deadline to Designate Summer Possession is Just Around the Corner

Posted by Ashley Russell on March 24, 2011          

           Spring is in the air and summer is right around the corner.  Sun, baseball, vacations, and extended summer possession are just two months away. And, for parents operating under the Texas Family Code’s Standard Possession Order, the April 1st and April 15th deadlines for parents to designate extended summer possession and summer trump weekends are fast approaching.   

          In addition to normal weekend possession during the summer, under the Standard Possession Order a parent without the right to designate the primary residence of the child shall have extended summer possession for 30 days (if that parent lives within 100 miles of the child’s primary residence) or for 42 days (if that parent lives more than 100 miles away from the child’s primary residence). This extended summer possession must be exercised in no more than two separate periods of no less than seven consecutive days each.  Provided the parent gives the primary conservator written notice on or before April 1st each year, they can designate any time for their possession from the time school is dismissed for summer until seven days before the child’s school resumes after summer vacation. If the non-primary parent fails to provide notice of their extended summer possession dates by April 1st, then they will have extended summer possession beginning at 6 pm on July 1st and ending a 6 pm on July 31st (June 15th – July 27th for parents who reside more than 100 miles from their child’s primary residence).

           Similarly, under the Standard Possession Order, primary parents can designate one weekend during the non-primary parent’s extended summer possession during which the primary parent will have possession of the child.  In order to exercise this “trump” weekend, the primary parent must pick up and return the child to the non-primary parent and must give the non-primary parent written notice of their weekend by April 15th.  Likewise, primary parents have another deadline of April 15th (or 14 days in advance) to provide the non-primary parent with written notice of one weekend during the child’s summer vacation during which an otherwise scheduled weekend period of possession by the non-primary parent will not take place.  This second “trump” weekend cannot interfere with Father’s day (if the father is the non-primary parent) or with the non-primary parent’s extended summer possession.  

          As a Texas family law attorney, I understand the importance of summer time possession for “primary” and “non-primary” parents alike.  Complying with the notice provisions of your child custody order can help summer time planning go more smoothly for everyone, including your children, and helps minimize (to the extent possible) friction and misunderstandings between you and your ex.  So, keep April 1st and April 15th in mind and happy planning!      

CoParenting is Tough But Worth It

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.

 

US Supreme Court Set to Hear Child Support Contempt Case

From The Nerve blog:

The nation’s top court will hear the appeal of an indigent father who contends his rights were violated because he wasn’t provided an attorney before being jailed for failing to pay child support.

The U.S. Supreme Court announced it accepted the case of Michael D. Turner v. Rebecca Price and the S.C. Department of Social Services. Oral arguments could be heard as early as March, with a ruling by the nine-member court likely by the end of June 2011, based on the court's past practice, Greenville lawyer Derek Enderlin, one of Turner’s appellate attorneys, told The Nerve on Monday.

Having an appeal accepted by the top court is a rare legal feat: Out of about 10,000 petitions the justices receive annually, only about 100 are heard during a term, which started last month.

South Carolina is one of only five states in the nation – along with Georgia, Florida, Maine and Ohio – that don’t guarantee indigent parents who owe child support the right to an attorney in civil contempt hearings that can result in jail time, according to Turner’s U.S. Supreme Court petition. That situation creates modern-day debtors’ prisons, as judges are more likely to jail indigent parents without attorneys for contempt, Turner and his supporters say in court papers.

In Texas child support courts, obligors (the person owing the child support) is generally not entitled to a court appointed lawyer if the potential punishment is "petty" -- less than 6 months total in jail and less than $500 fine total. But, if the obligor could be jailed for more than 6 months total or be ordered to pay an aggregate fine over $500, then the punishment is considered "serious" and invokes the right to an attorney.

This will be an interesting case to watch and evaluate how it will impact child support collection laws and procedures across the country.

Hat Tip to the Family Law Prof Blog for the lead on this story.

 

Can Sally have too many mommies?

Traditionally, the family was defined as a mommy, a daddy, and 2.5 kids. In our modern times, the traditional notions of how to define a family continues to be challenged. As divorces have become commonplace, the traditional notion of a family unit as having a mommy and daddy has flown out the window to a more common situation of a mommy in one house and a daddy in another house, with stepparents in each place.  Increasingly, the spotlight is shining on same-sex parenting units as a family. 

In many states, including Texas, the law remains archaic in addressing the needs of non-traditional family units.  Obtaining the right to seek relief from a court (called standing to sue) remains difficult for a non-biological or non-adoptive "parent" who has maintained a significant relationship with a child (whether same-sex or hetrosexual in nature).  And, the Troxel case out of the United States Supreme Court vitiates the right of most people to invade the biological or adoptive parent's decision-making (as to what people should have a relationship with a child) unless there is some question of parental fitness.  This is true even when the non-biological or non-adoptive "parent" overcomes the initial hurdle of standing.

The Boston Globe this week illuminates the new appearance of a family in its article Johnny Has Two Mommies -- And Four Dads.  The article discusses a summer movie called "The Kids Are All Right" where a man learns that he is the father of two teenagers by sperm donation with two lesbian mothers. (I never heard about this movie.  Did you?)

The article points out:

"In the age of assisted reproductive technology, the increasing acceptance of same-sex partnerships, and a steady growth in 'blended' families, more parents and more children are finding that traditional notions of the nuclear family don’t accurately reflect their lives and relationships.

"Still, even in a time of changing attitudes about who can be a parent, the legal and social definition of a family still has certain rules — a family can be run by a single mom or a single dad and, increasingly, by two moms or two dads, but it can’t have three parents, or four. For a long, long time — going back to when the English common law first started codifying such things — the law has set the maximum number of parents a child can have as two. Only two people, in other words, can enjoy the unique set of rights to determine a child’s life — and the unique set of responsibilities for the child’s welfare — that legal parenthood entails. That matches how most people think about parenthood: Two people, after all, are how many it usually takes to make a baby in the first place.

"Now a few family-law scholars have begun to argue that there is nothing special about the number two — if three or four or five adults have a parental relationship with a child, the law should recognize them all as parents. Going beyond two, these scholars argue, would better reflect the dynamics of the modern family, and also protect the children in such families. It would ensure that, even in the event of a split or major disagreement between the adults in question, the children would not be deprived of the affection, care, and financial resources of any of the people they have grown up regarding as their mothers and fathers.

" 'The law needs to adapt to the reality of children’s lives, and if children are being raised by three parents, the law should not arbitrarily select two of them and say these are the legal parents, this other person is a stranger,' says Nancy Polikoff, a family-law professor at American University’s Washington College of Law.

In a few recent cases, courts seem to have agreed with the calls for multiple parents. But critics argue that tinkering with the definition of parenthood in this way threatens to dilute the sense of obligation that being a parent has always carried, and that increasing the number of legal parents only raises the likelihood that family disputes will arise and get messy and find their way into court. Not to mention that having judges routinely declare that Heather has two mommies and three daddies would represent a radical cultural shift, and one that, like gay marriage, many will find threatening.

Ultimately, the legal definition of parenthood is part of a broader philosophical question: What is a family? And what is it for? While some scholars have focused on expanding the number of parents, others argue that the law needs to do more to recognize the social context in which families exist, and the extent to which child care is actually performed by people who aren’t part of the nuclear family at all.

And as supporters of revising the definition of parenthood point out, there’s nothing tidy or biologically preordained about today’s prevailing notion of parentage, one that often has to shoehorn families jumbled and reassembled by divorce, adoption, and reproductive technology into one standard model, in ways that can prove disruptive to the families in question.

" 'The law determines what makes someone a legal parent, not marriage, not biology. Those things don’t determine who is a parent, the law does,' says Polikoff.

In California, a three-party adoption has been recognized.  When asked why that was important, the parents replied that there is a perceived difference between being a "parent" under the law versus a friend or "uncle". Third-parent adoptions remain extremely rare, and only a handful have been done, mostly in Massachusetts and California. But some legal scholars see in them the seeds of a larger shift in how the law defines parenthood. These advocates point to a few recent court decisions that suggest a willingness to recognize more than two parents.

It would not be unheard of for the law to redefine parenthood.  For example, under English common law, children born outside of marriage had no parents at all under the law.  But, during the 20th century, the law erased the difference between legitimate versus illegitimate children in recognizing parenthood.  And, court decisions in the 1960's and 1970's, the Supreme Court struck down laws penalizing children born to unmarried women.

I have always maintained that a child cannot have too many people love him or her. That being said, I think it may be polyanna to think that multiple parenting families can work in reality.  As a Divorce Lawyer in Dallas, Texas who deals with parenting time agreements in Texas and court orders for possession schedules, it sounds like a nightmare to draft a co-parenting agreement with 2 moms and 1 dad, or 2 dads, 2 stepmoms, and a grandparent. all considered as parents!  Can you imagine the back and forth a child will suffer through in such a situation?

Basic Elements of a Parenting Plan

Basic Elements of a Parenting Plan:

Here’s a list of issues that must be addressed to form the basis of a parenting plan:

 

  • Which house is identified as “home base” for the children?
  • When will the children be with each parent during the school year?
  • When will the children be with each parent during holiday breaks?
  • How will the summer break period be handled?
  • What arrangements will be made for exchanging the children at the beginning of each parent’s time?
  • Who will decide which extracurricular activities the children will participate in? How will these activities be paid for? What happens if an activity falls during the other parent’s time?
  • How will the children’s religious upbringing be handled?
  • Who will make decisions for the medical and mental health needs of the children? How will these needs be paid for?
  • Who will have the right to represent the children in legal action and make other legal decisions for the children?
  • How will the children’s access to the internet be handled?
  • Who will carry the children on health insurance? Who will pay for the coverage? How will the uninsured medical expenses be handled?
  • Who will make decisions regarding the children’s education? How will private schooling be handled? What happens if the children need additional educational assistance such as tutoring? How will those expenses be handled?
  • What plans are being made for the children’s future college education?
  • Will the children talk on the telephone to the parent not in possession of them?
  • Will the children be allowed to travel outside the country with each parent? How will the passports be handled?

Unless the courts have ordered something different, both parents have the right to:

 

  • Receive information concerning the health, education and welfare of the kids;
  • Talk with the other parent before making a decision concerning the health, education and welfare of the kids;
  • Access their children’s medical, dental, psychological and educational records;
  • Consult with the kids’ doctors;
  • Consult with the school concerning the kids’ welfare and educational status;
  • Attend school activities;
  • Be listed as an emergency contact on the kids’ records;
  • Consent to medical treatment during an emergency involving an immediate danger to the health and safety of the kids;
  • Be offered the chance to take care of the kids during the other parent’s time if the other parent has something that keeps them from the kids;

There are some extra things that parents going through a split should keep in mind:

 

  • Alcohol consumption – limit the amount of alcohol you consume during your time with your kids, especially if alcohol has been a problem before. Never drive with your children if you’ve been drinking.
  • New romantic partners – take care to introduce your new boyfriend or girlfriend to your kids slowly, so they don’t feel as though their other parent is being  replaced.
  • Travel – when planning trips for business or pleasure, with or without your kids, keep your kids’ schedules and your parenting plan in mind.

What Is A Parenting Plan in Texas?

What Is a Parenting Plan in Texas?

A Texas parenting plan involves either an agreement or court order between parents that allocates the time the children will spend with each parent, how decisions will be made and how parenting responsibilities will be shared. This type of agreement allows parents to avoid future conflicts as a result of a lack of guidelines for handing situations. Some parents are able to agree as to the distribution of the various considerations among the parents, but others may disagree as to how to handle the issues regarding the children. When parents disagree as to the best interest of the children, the Texas divorce courts will make the final decision. 

The basic elements of a parenting plan include:

 

  • A schedule for when the children will spend time with each parent on a regular basis;
  • How holidays will be shared by the parents;
  • How to handle changes and adjustments that arise from time to time;
  • Who will make day-to-day decisions regarding the children;
  • How to share making important decisions regarding the children;
  • Arrange for the exchange of the children for each parent’s time;
  • Decide how to provide for the daily support of the child with each parent;
  • Arrange for the extra financial expenses of the children, such as medical expenses, and extracurricular activities.

It can also be helpful to determine a method of resolving future conflicts or disagreements that may arise. Some parents have the court appoint a parenting coordinator to assist in dispute resolution. Others may agree to attend mediation or counseling to resolve future disputes.

New Law Puts Credit Card Debt Before Single Moms

In July, Congress approved the overhaul of financial regulations protecting borrowers against abuses in credit card, mortgage, and other types of lending. However, the new law failed to reform a 2005 bankruptcy law that hurts single mothers and benefits the credit card industry. This law makes it easier for delinquent dads to avoid paying child support and alimony.

Until 2005, bankruptcy wiped out credit card debts while leaving child support and alimony obligations intact. This helped women because their ex-husbands had more funds available to fulfill their support obligations after bankruptcy. Now the credit card debts can't be discharged, so women find themselves competing with Visa and MasterCard for a share of their ex-husband's paychecks. And, women don't have the sophisticated collection departments credit card companies do.

The bankruptcy law provides a means test to determine how much income a debtor has available to pay creditors after they pay their basic living expenses. People who earn more than the median income in their states and can pay their creditors at least $6,000 spread out over 5 years are put in Chapter 13 bankruptcy rather than the traditional Chapter 7 category. Chapter 7 allows full discharge of all debts. On the other hand, Chapter 13 requires debtors to pay a portion of their credit card balances, medical bills, and other debts for 3-5 years.

The result is that divorced women are getting hit two ways by the new law -- by the new hurdles it places in the way of collecting their child support payments and by their own exposure to the provisions that make it harder to completely discharge their debts.

Special hat tip to Scott David Stewart for the lead on this important issue.

Even Non-Primary Custody Prevents International Kidnapping

Case Law Friday -- US Supreme Court interprets child custody order in terms of international kidnapping:

The United State Supreme Court has held that an order prohibiting a parent from taking a child out of the country without the other parent's consent is enforceable under international child abduction laws.

In Abbott v. Abbott, the parents divorced in Chile where the mother was granted custody of the son and the father had visitation rights. The Chilean court granted the mother a ne exeat order which prohibited either parent from removing the child from Chile without the agreement of the other parent. The mother then moved from Chile to the United States. When the father located the mother and child in Texas, the father moved to enforce the ne exeat order.

The United States Supreme Court held that the Chilean order conferred a right of custody on the noncustodial father under the international laws pertaining to child abduction (Hague Convention on the Civil Aspects of International Child Abduction), permitting enforcement by the father to compel return of the child to Chile.  The Court compared the custody order to that of "joint custody".

Moreover, the Court explained, the only remedy for the violation of a ne exeat right is an order of return. Any other result, it emphasized, would “render the Convention meaningless in many cases where it is most needed.” In the Court ‘s eyes, its conclusion was further bolstered by the persuasive views of the State Department “that ne exeat rights are rights of custody” – which, the Court continued, are significant under the longstanding rule “that the Executive Branch’s interpretation of a treaty ‘is entitled to great weight.’”

Despite this ruling, the United States Supreme Court did not order the child automatically returned. Instead, the Court remanded the case to the trial court to consider whether any of the exceptions to return would apply. For example, the international child abduction laws provide exceptions for return based on a grave risk of physical or psychological harm to the child.

Hat tip to SCOTUS Wiki for their analysis of the Abbott opinion.

Read the full opinion in Abbott or read the transcript of the Abbott oral arguments.

 

 

Parenting Over The Miles - Ten Ways to Bond With Your Child From A Distance

It is easier than ever before to stay in touch with your child, even from a distance. Learn 10 ways to use technology to communicate and bridge the distance when you cannot be in person.

The recent case out of New York where, according to Fox News, the Judge allowed a mother to move with her child from New York to Florida, but court-ordered access by the father through Skype, sheds light on the challenges of parenting in this new time of mobility. The good news is that modern technology provides valuable ways for parents to stay in touch, even over the miles, and Skype is not the only option.

 

Texas was the third state in the US to mandate frequent contact between parents and children via electronic communication. “The law usually lags behind in keeping up with technology, but in Texas, parents have options available to request electronic access to their children in the right situation, says Dallas Divorce Lawyer Michelle May O’Neil, a Texas board certified family law specialist.

  1. The Telephone. Agree or disagree, most kids these days have cell phones. This can be a benefit in staying in touch over a distance because it gives the parent and child the flexibility to make contact directly. The parent does not have to go through the other parent to reach the child, therefore reducing the potential for conflict. And, the child can be at home or anywhere else to be reached.
  2. Text messaging. It’s all around us. People are texting while driving and cities are passing laws prohibiting it. Teenagers are being banned from having cell phones in school because they are distracted by texting. Many teens conduct full relationships over text without ever speaking in person. A parent can get in on this act by communicating with the child via text message and sharing short ideas back and forth even over great distances.
  3. E-mail. E-mail remains the number one method of communicating over the internet. In parenting, it allows the child and parent to exchange private conversations. One benefit of using e-mail is that the e-mail can be created and sent when the parent is available and read by the child when the child is available, allowing for flexibility in scheduling.
  4. Instant messaging. Many instant messaging programs exists that allow people to exchange messages in real time over the internet without picking up the phone. Yahoo messenger or Windows Messenger or other similar programs provide a way for parents to have a quick exchange with their child in a forum that will be familiar to the child.
  5. Skype or other video conferencing. The internet provides options for free or inexpensive conferencing over the internet, including video conferencing. Skype seems to be the most talked about service, with some judges getting into the act by ordering Skype access. Video conferencing allows the parent and child to see each other and make face-to-face contact. “I have one client who lives in the U.K. and her son lives in Texas. They use Skype to keep in touch weekly,” offers O’Neil.
  6. Facebook. Teenagers and others use Facebook to keep in touch with friends, but parents can also stay up on the activities of the child by reading the posts and responding. If the child posts about a bad day or negative event, the parent can use the opportunity to cheer up the child. As a side benefit, a parent can also keep up with the child’s friends on Facebook.
  7. Twitter. Like a combination of texting and Facebook, Twitter is a forum that allows users to post very short status updates about their thoughts and activities. A parent can subscribe to the child’s posts and read or comment on what is going through the child’s mind at the moment.
  8. You Tube. You Tube provides a way for users to post videos of their observations. Parents can use this in keeping involved in the child’s life by, for example, posting a video to share with the child of some event going on at the parent’s home while the child is with the other parent. Bringing a new puppy home? Make your long-distance child a part of the event by recording it and sharing the video on You Tube.
  9. Flickr. Much like You Tube, a parent can use Flickr to post photos of events and share with the child. If the child is involved in a school play but the parent cannot attend, have the child or other parent take pictures and share on Flickr.
  10. Whiteboard. Whiteboarding is similar to instant messaging in that the communication occurs in real time. But, whiteboarding stands apart in the ability to draw, use shapes, collaborate over images, and use voice chat while doing it. A parent can use whiteboarding to help a child with homework. “One client I have bought the same math book the child uses in school and then uses a whiteboard website to help the child understand his homework, even when the parent is across the country,” offers O’Neil. Scriblink.com is one example of a free whiteboard website.

Time and effort, says O’Neil, are the important factors in maintaining a relationship over a long-distance between a parent and child. The internet provides many tools that can help a parent and child creatively stay in touch.

Internet Parenting -- Skype Style

Skype, Facebook, Twitter, You Tube, whiteboard, Flickr, e-mail, texting, instant messaging – these are only a few of the ways that people stay in touch via the internet. It seems like the telephone has become old-fashioned and outdated. In long distance parenting relationships, it is easier than ever before to stay involved in the day-to-day activity of the child.

Brian and Kathy are the parents of Larry but they have never been married to each other. Brian lives in the Great Britain but Kathy and Larry moved back to Texas a year ago. Brian visits with Larry weekly using Skype. Since Brian is a math-whiz and Kathy dislikes the math homework, Brian often helps Larry do his math homework using a whiteboard website during his Skype visits. Brian gets to see Larry in person in the summer and on holidays. But, without electronic visitation, his relationship with Larry would be much more tenuous.

Electronic communication gives parents and children a way to creatively structure parenting time when face-to-face meetings will not work. It allows for flexibility in accounting for busy schedules. Using Skype, a long-distance parent can see a child’s condition in real time. Using whiteboard or instant messaging, a parent can help with homework. You Tube, Flickr, and Facebook allow for almost instant exchange of pictures or video of a child’s activities. Teenagers might post frequent short updates as to their activities or feelings via Twitter.

The Texas Legislature saw the value in electronic visitation, endorsing frequent contact between parents and children by telephone, electronic mail, instant messaging, videoconferencing, or webcam as early as 2007. At the time, Texas was only the third state to move to the age of the internet. Texas Family Code provision entitled “Electronic Communication with Child by Conservator” sets out the specifics for electronic visitation. Tex. Fam. Code 153.015. Divorcing parents can agree, or, under this section of the Family Code, courts can order “reasonable periods of electronic communication with the child to supplement the parent’s period of possession.

In determining whether to order an electronic communication schedule, including a schedule for telephone access, courts consider three things:
1. whether electronic communication is in the best interest of the child;
2. whether equipment necessary to facilitate the electronic communication is reasonably available to all parties subject to the order; and
3. any other factor the court considers appropriate.

If the court awards a conservator periods of electronic communication with the child, the parents will be required to provide each other with the children’s e-mail address and other information necessary for electronic access; notify each other within 24 hours when the child’s e-mail address of other information changes; and accommodate electronic visitation with the child at reasonable times with the same privacy, respect, and dignity accorded to all form of access, including physical possession.

Practically, the electronic communication schedule could allow the long-distance parent to communicate with the child via e-mail, then designate a period during which the parent would have access to the child via webcam or Skype. Telephone access schedules are also very common, designating a set time or range of time during which the parent not in possession will be allowed to call the child. It is important to consider the child’s schedule when setting a telephone access or electronic visitation schedule.

"Internet communication fosters a meaningful opportunity for communication between parent and child, when traditional means of access would not," says Michelle May O'Neil, . "But, the law requires the long-distance parent to be given that time without interference or hovering by the other parent."

"I have one case where the father travels on business a great deal and misses out on some of the important parenting time with his daughter," recounts O'Neil. "He visits with her via Skype from almost anywhere, airport, hotel room, even dinner meetings."

A New York judge last week permitted a mother to move from New York to Florida with her children, over the father's objection, but the judge required the mother to provide, at her expense, the necessary equipment to allow the father to Skype with the children at least 3 days per week. (Debra Baker v. James Baker, 29610-2007, NYLJ 1202464436957, at *1 (Suffolk Cty. Sup., August 4, 2010.)

While convenient and potentially cost-efficient, it is clear that electronic visitation and/or telephone access are not intended as a substitute for actual physical possession of the child. Telephone access and electronic visitation are instead a means of supplementing physical possession, facilitating the connection between the child and the long-distance parent.
 

Inheritance Is Net Resources For Child Support Calculation

The Dallas Court of Appeals issued an opinion today in a Dallas child support case and held that an inheritance should be included as income for the purposes of calculating child support.  The father received a one-time inheritance of approximately $400,000 and, because he was going through a hard financial time, used that money to live on.  He argued that although his “net worth has increased by virtue of his inheritance,” his income has diminished materially and substantially since the time of the divorce. Tmother contended that his inheritance should be considered part of his income for calculating child support.  Thus, the mother sought an increase in child support based on the inheritance.

Texas Family Code 154.062 defines Resources to include:

  1. 100 percent of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses);
  2. interest, dividends, and royalty income;
  3. self-employment income;
  4. net rental income (defined as rent after deducting operating expenses and mortgage payments, but not including noncash items such as depreciation); and
  5. all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits other than supplemental security income, unemployment benefits, disability and workers' compensation benefits, interest income from notes regardless of the source, gifts and prizes, spousal maintenance, and alimony.

The court of appeals held that the inheritance amounts to "all other income" under number 5 of the statute.

However, one justice of the three judge panel disagreed.  She stated that an inheritance is not considered income in any definition.  In her opinion, the court could consider the inheritance as a factor in calculating child support over the State of Texas guidelines under Texas Family Code section 154.123.

I agree with the dissent here.  An inheritance is not "income" -- a party does not pay income taxes on an inheritance.  This is important because the court must apply the guideline percentages for figuring the amount of child support to the income numbers.  So, an unexpected inheritance could result in a dramatic and improper increase in child support based on the percentage.  However, a court can consider all of the relevant factors, such as an inheritance, in deciding whether applying the guideline percentages to a case are fair and equitable in that particular circumstance.  It seems like the more reasoned and logical approach to consideration of an inheritance would be to consider it an "other factor" rather than applying the guideline percentage to that amount.

Speaking of Step-Moms...

I posted about Sandra Bullock and her role as step-mom to Jesse's kids here.  I read a GREAT post about the role of step-moms on the blog The Psycho Ex Wife.  As a step-mom myself, I can really relate to the important and sometimes thankless job that step-moms perform.

I’m “just” a stepmother.

I’m a stepmother that helps my stepchildren, in some way, every day:

◦I helped try to teach them to ride a bike
◦I helped teach them how to tie their shoes
◦I help them get exercise and learn about health and fitness
◦I pick out books for them
◦I take them fishing, sometimes even when Dad can’t
◦I take them on walks and hikes
◦I sign them up for sports, on my time and with my money
◦I teach them how to make and try new foods
◦I introduce them to different cities and cultures, my time, my money
◦I teach them how to speak with respect
◦I help them with homework
◦I buy them new clothes
◦I buy them Christmas presents
◦I made an area in the woods for them to play behind our house, decorated it with  them
◦I play board games with them
◦I introduce them to new music
◦I keep the craft cabinet stocked so they can continue to make art
◦I make sure they brush their teeth appropriately
◦I make sure they wipe the toilet seat off when their aim sucks
◦I help take care of them when they are sick
◦I help clean up their vomit
◦I cut their hair
◦I come up with events like SmoresFest and outdoor movie night so they can have fun
◦I help teach them about respect for themselves and others
◦I help teach them the importance of education
◦I do this with no desire nor intent to replace their biological mother
◦I do this because I care about them and love them
◦I treat their father with care, love, respect, and dignity so they may experience what a healthy relationship really looks like

(That’s the short list) AND YET:

◦I get no consideration on how custody changes will affect me or my children
◦I get no consideration on how child support will affect me or my children
◦I get no consideration for activities I believe they should or should not participate in
◦I have no say in their medical care
◦I have no say in their education
◦There may be more…
 

And… you can bet your last dollar I’m dragged into nearly every court proceeding to answer questions that affect me every single day, while no one gives a crap how the outcome will affect me or my children.

Abbott v. Abbott: New Supreme Court Opinion on International Child Abduction

With the ease and speed of international travel and communication constantly evolving and with the globalization of many areas of the economy, it is no surprise that issues of international abduction and child custody are hot topics in the area of family law.

 

The U.S. Supreme Court recently had the opportunity to address the issue of international abduction in Abbott v. Abbott. The parties in Abbott divorced in Chile. Mother received custody, Father was granted visitation. The Court also entered a ne exeat order, preventing either party from leaving Chile with the child unless both parties agreed. Mother then brought the child to Texas, without Father’s consent. Once Father was able to locate Mother and child, he moved to enforce the ne exeat order, leading to the issue before the Supreme Court.

 

In  the opinion authored by Justice Anthony Kennedy, the Supreme Court examined the applicability of the Hague Convention on Civil Aspects of International Child Abduction in the context of a custodial parent’s violation of a ne exeat order. The Court determined that the otherwise noncustodial Father’s shared authority in determining the child’s residence, conferred by the ne exeat order, was a right of custody under the Hague Convention, thereby sufficient to evoke applicability of the Hague Convention’s enforcement procedures.  Although the Supreme Court determined that the Hague Convention’s procedures were applicable, the Supreme Court did not automatically order the child return to Chile. Instead the Court ordered the case remanded for determination by the trial court. We will be watching the Abbott case on remand and post again with the outcome.  

 

As a practical matter, this case underscores the importance in a divorce or modification case of the provisions regarding the child’s passport and the requirements for which parent gets to keep the child’s passport. 

Sandra Bullock and Step-Moms

No doubt everyone out there has heard about Sandra Bullock and Jesse James are getting a divorce.  The question that burns in my mind... how could anyone cheat on someone as wonderful as Sandra Bullock?  But, that begs the question for today.

Bullock, 44, married TV host and motorcycle builder Jesse James in July 2005. The couple met the previous year when Bullock arranged for her then ten-year-old godson to meet James, who hosted Discovery's Monster Garage. James has two daughters and a son from previous marriages: 14-year-old Chandler, 11-year-old Jesse Jr., and five-year-old Sunny.

The couple won temporary full-time custody of Sunny in 2009, after James' ex-wife, adult-movie star and former Penthouse model Janine Lindemulder, was sentenced to six months in prison for income-tax evasion.

Interestingly, in her recent Oscar acceptance speech for her role in the movie Blind Side, she said the award is “… for the moms that take care of the babies and children no matter where they come from. These moms and parents never get thanks.” Maybe she included herself and her step children in that message.

There has been a lot written about how much Sandra Bullock relishes her roles as step-mother.  But, what happens if she wants to continue a relationship with Jesse's children after the divorce?

Unfortunately, the law doesn't favor step-parents' relationship with step-children.  In most states, including under Texas divorce laws, the biological parent will determine whether and when a step-parent can see the kids after the divorce.  Much like grandparents, no  matter how much money and love has been put into helping raise the children, the step parent is out in the cold when the relationship with the biological parent ends. 

Thanks to Blogs On Divorce for the backdrop for this post.

 

 

Common Misconceptions about Texas Family Law

Dallas Family Law attorney Michelle May O'Neil discussed a few common misconceptions about Texas Family Law in her presentation at the Dallas Kids Expo featuring her book All About Texas Law and Kids

Misconception #1:  Children over age 12 can choose who they want to live with (who their conservator will be after a divorce or modification in Texas).  False!  (See the video below for the true state of the law.)

Misconception #2:  Joint custody means equal time for both parents with the kids.  False!  (See the video below for the true state of the law.)

Misconception #3: The age when a child can get married.  (See the video below for the true state of the law.)

See the youtube video here:  Michelle May O'Neil discusses misconceptions about Texas family law

 

No Mommy Presumption for Custody in Texas.

As a Dallas divorce lawyer, I am often asked whether court's still presume that custody of a child should go to the mother as opposed to the father.  The short answer is no.  Courts are not permitted to consider the gender of the parent (or the child) in making decisions regarding custody.  Generally the best interests of the child are the primary considerations the court assesses in determining custody issues.  The best interests of the child are frequently referred to as the Holley factors because of the case they were set forth in.  See Holley v. Adams, 544 S.W.2d 367, 371-71 (Tex. 1976).  Since 1976 the best interest factors have been divided up into three broad factors: (1) the ability of the either parent to care for the child; (2) the ability to maintain a family relationship; and (3) parental fitness.

Historically, gender played a role in assessing parental fitness.  This role led to the development of the "tender years doctrine" which in essence stated a child should not be separated from his or her mother.  Early records of the tender years doctrine date back to the mid 1800's and needless to say there have been dramatic shifts in socio-political viewpoints since that time.  The trend towards moving away from the mommy presumption and tender years doctrine gradually made its way in to Texas Case law and eventually was codified in the Texas Family Code.  According to Section 153.003 of the Texas Family Code, the court cannot consider the marital status or gender of either parent in making decisions regarding custody.

This shift away from the tender years doctrine coincides with the shift towards parents sharing their rights and duties equally.  In fact, there is a possession schedule set forth in the Texas Family Code that applies in most cases (in the absence of a showing why it should not) which effectively gives parents equal rights, duties and almost possession periods of their children. 

Despite the shift away from the mommy presumption, there are some judges who retain an "old school" mentality and still believe that the child should remain with his or her mother.  This is where hiring an experienced divorce attorney is critical, because if your case happens to land in a conservative judge's court, then your attorney will have to clear the mommy presumption hurdle. 

In short, the tender years doctrine has been, for the most part, put to bed in Texas courts.  However, it still pays to know the judge's preferences your case is assigned to. 

Long Distance Visitation -- Airline Policies

Many parents have long distances to bear between their children and themselves.  On Fridays and Sundays at the ariport, one can see many parents escorting kids to and from flights.  Airlines have regulations addressing flights for minor children flying without an adult -- called Unaccompanied Minors.  The regulations and fees charged vary between the airlines.  Here's a summary of the various airlines policies:

Airline

Kids Flying Solo Age 5-7

Kids Flying Solo Age 8-11

Kids Flying Solo Age 12-14

Kids Flying Solo Age 15-17

Kids Flying Internationally

AirTran

$39 (nonstop or direct only)

$39 (nonstop or direct only)

$39-$59 (optional)

Call airline for options

N/A

Air Canada

Not Allowed

$100

$100

$100 (optional)

$100

Alaska

$75 (nonstop only)

$75 (no codeshare flights)

$75 (optional)

$75 (optional)

$100

American

$100 (nonstop only)

$100 (no codeshare flights)

$100 (no codeshare flights)

$100 (optional)

$100

Continental

$75 (nonstop only)

$75 (nonstop) or $100 (connecting)

 $75 (nonstop) or $100 (connecting)

Not Offered

$75 (nonstop) or $100 (connecting)

Delta

$100 (nonstop or direct only)

$100 (nonstop or connecting, no codeshares)

$100 (nonstop or connecting, no codeshares)

$100 (optional)

$100

Frontier

$50

$50

$50

Not Offered

N/A

Hawaiian Air

$35 inter island Hawaii and $100 mainland nonstop only

$35 inter island Hawaii and $100 mainland nonstop and connecting

$35 inter island Hawaii and $100 mainland nonstop and connecting

Optional $35 inter island Hawaii and $100 mainland nonstop and connecting

$100

JetBlue

$75 (nonstop or direct only)

$75 (nonstop or direct only)

$75 (nonstop or direct only)

Optional $75 (nonstop or direct only)

$100

Northwest

$100 (nonstop or direct only)

$100 (nonstop or connecting)

$100 (nonstop or connecting)