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

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

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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

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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.

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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 81^st 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.

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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                                                                                                                                                                                           

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

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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.

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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 9^th 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

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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

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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 1^st and April 15^th 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 1^st 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 1^st, then they will have extended summer possession beginning at 6 pm on July 1^st and ending a 6 pm on July 31^st (June 15^th – July 27^th 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 15^th (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 1^st and April 15^th in mind and happy planning!      

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

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

Co-Parenting: The Toughest Job in The World

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

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

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

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

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

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

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

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

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

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

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

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

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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.

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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?

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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.

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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.

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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.

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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.

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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.

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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.
 

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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.

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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.

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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. 

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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.

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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

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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. 

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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:

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I recently came across an article on Time Magazine's website that was pretty interesting.  According to a study completed by the Pew Research Center, married men have a 60% higher income than they did in 1970, whereas unmarried men only experienced an increase of 16% in income. 

According to the study, one of the reasons that married men experienced a higher increase in income is because the percentage of men marrying women who earn as much, if not more, than they do has also increased since 1970.  Coupled with this is the fact that there has been a dramatic increase in the number of white collar women.

Another interesting point was that there is a decrease in divorce among college educated couples, and an increase in divorce between non-college educated couples.  Apart from the homogamy aspect of the studies, it was interesting to learn about correlation between income and duration of marriage. 

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I wanted to share with our readers a very special song I heard today by the Zac Brown Band called Highway 20 Ride about a father's visitation with his son.  Here's the video and lyrics.  Hope this is as meaningful to you and it was to me:

Highway 20 Ride:

I ride east every other Friday
But if I had it my way
A day would not be wasted on this drive
And I want so bad to hold you
Son, there’s things I haven't told you
Your mom and me couldn't get along

So I drive and I think about my life
And wonder why that I slowly die inside
Every time I turn that truck around
Right at the Georgia line
And I count the days
And the miles back home to you
On that Highway 20 ride

A day might come you'll realize
That if you see through my eyes
There was no other way to work it out
And a part of you might hate me
But son, please don’t mistake me
For a man that didn’t care at all

And I drive and I think about my life
And wonder why that I slowly die inside
Every time I turn that truck around
Right at the Georgia line
And I count the days
And the miles back home to you
On that Highway 20 ride

So when you drive
And the years go flying by
I hope you smile
If I ever cross your mind
It was the pleasure of my life
And I cherished every time
And my whole world
It begins and ends with you
On that Highway 20 ride....
 

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While it can be a sensitive subject, if a husband has doubts about his paternity of a child born to his wife during their marriage, it is critical that this issue be considered in the divorce proceeding and addressed as soon as possible. When paternity is at issue, time is of the essence both in the interest of stability for the child, as well as protecting the presumed father’s rights.  

In addition to biological and legal fathers, the Texas Family Code identifies several other types of fathers, including "presumed" fathers. If a man is married to the mother at the time the child is born, or was married to the mother less than 301 days before the child’s birth, he is considered a presumed father. Tex. Fam. Code §160.204(a)(1),(2). This status as a presumed father carries with it many legal implications.

The laws impacting presumed fathers can become particularly important in divorce proceedings involving adultery or infidelity by the child’s mother where paternity of one or more children of the marriage could be at issue. Under the Texas Family Code, while there is no time limitation for a suit to adjudicate parentage if the child has no presumed, alleged, or adjudicated father; yet a suit adjudicate parentage of a child with a presumed father must be brought within four years of the anniversary of the child’s birth. Tex. Fam. Code §160.607(a). In order to overcome this four year limitation, a presumed father must not have lived with the mother or engaged in sexual intercourse with her during the probable time of conception. Tex. Fam. Code §160.607(b)(1). The presumed father also must never have represented to others that the child was his own. Tex. Fam. Code §160.607(b)(2).

When two people live together as husband and wife, with a child born during their marriage, the requirements of Texas Family Code 160.607(b) are very often impossible to overcome. So, if there is a question as to the paternity of a child, genetic testing should be requested as early as possible and the suit to adjudicate parentage of the child should be brought before the child’s fourth birthday. This is important to ensure stability for the child involved. Here, as is the case with the rest of the Texas Family Code, the best interest of the child is the priority.

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A New Generation of Fathers is Fighting for Custody -- And A Fair Shake In Court from Working Mothers Magazine.

By: Philip Lerman

“Yes, but who’s going to cook them dinner?” When Ben Oshman got that question from a judge hearing his request for custody of his three kids, he was furious. Because whatever new challenges moms have these days, when it comes to custody, things haven’t changed much for dads—especially the gender-based stereotypes that render them the second most important parent.

But now, dads are fighting back, demanding custody where custody’s due. Their motivation is simple: “I wanted to have kids. I wanted to have the family,” says Oshman, who ended up getting joint custody of his three girls. To him, divorce “didn’t mean I should have to give up my family.”

A groundswell of support is rising up for dads seeking custody, as evidenced by the increasing number of groups like dads rights (dadsrights.org), Custody Warriors (custodywarriors.com) and dadsdivorce.com. “Fathers increasingly want to be more deeply involved with their children”—a desire that doesn’t disappear after divorce, says Danny Guspie, executive director of Fathers resources international, a group that advises divorced dads. “When you see some dads have success, it encourages others.”

Thirty years ago, dads never litigated for custody, says Jeffery M. Leving, a Chicago lawyer at the forefront of the fathers’ rights movement. “Men didn’t place fatherhood at the top of their priorities. Now, if they face a divorce, their children are their main priority, and they will fight to avoid being kicked to the curb.”

Bottom line: dads say they’ve become better parents, so they deserve a better chance. “They’re demanding more fairness,” says Leving, “and sometimes they’re getting it.”
 

Philip Lerman is the author of Dadditude: How a Real Man Became a Real Dad.
 

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Are you dreading Christmas? Will it be your first special holiday since your separation or divorce? Are you depressed about not having your children for that special day this year? Whatever the holiday, you are not alone. Here are some survival tips to make it through:

1.  Ensure the Children’s Schedule Is Specific.

Confirm the children’s schedule with your ex as far in advance as you can. If you don’t already have a specific schedule set out, then negotiate those days/times as possible. Your children will appreciate knowing in advance where they will be, especially if they need to let Santa know where to deliver their presents!

2.  Don't Fight Over Which Days You Have Your Children.

Make whatever days your have with your children special. Most children of divorce will tell you that it’s not the quantity of time that is important, it is the quality of time – the memories created – during the time you have. If you really need particular days due to work or visiting relatives, offer to trade days with your ex or give your ex those special days next year. Remember the golden rule: treat your ex they way you would like to be treated, even if it isn't reciprocated.

3.  Do Something Special For Yourself.

Enjoy a day by yourself. Open a bottle of wine, watch basketball on television, take a bubble bath, wrap presents -- do whatever you want to do to relax for one day. That way you'll be ready when the kids get there.

4.  Support The Children's Relationship With The Other Parent.

If you need to speak to someone about your sad feelings, talk to a friend or therapist - not your kids. The children don't need to hear it. They need to hear that it is okay to have fun with their other parent too.

5.  Create New Traditions.

This is a new beginning for you and your children so don't try to replicate the past. Find new ways to celebrate the event. You can preserve some of the past traditions but find new ways of celebrating too.   Make the time you have with your children meaningful and something they will always remember.

6.  Get Outside.

Go for a walk or ski or snowshoe. There is nothing more rejuvenating than being outside with nature and your family. When your kids are with you, take them outside too. A good snowball fight can really build up an appetite. Or, the kids will always remember the time they tackled you in a game of football.

7.  Give of Your Heart.

Most people are tight on money this year, and that is likely worsened if you are recently separated. Do something special for the people you love. Maybe you can write a special little poem for each of them or list twenty ways you appreciate them. Gifts often don't have lasting meaning. Can you even list five gifts you received last year or the year before? It is the feelings of love and appreciation that last forever.

8.  Stay Sober.

If you over-drink, you run the risk of crumbling into a pile of self-pity and depression. Nobody wants to see that and certainly your kids don't need to see it. Have fun but be careful so can keep it together emotionally, especially during your first Christmas since your separation.

9.  Surround Yourself With Positive, Supportive People.

If your family or friends are negative, remind them the season is all about gratitude, love and appreciation. Park you own negativity and search for the positive in everything and everyone, even your ex.

10.  Relax.

Know that in time the holidays will become easier to get through and more fun. Just take a deep breath and get through your first set of holidays. Next year, it will be better.

(Adapted from Brian Galbraith of the Ontario Family Law Blog.)

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 The Amarillo Court of Appeals recently issued an opinion, styled In re A.S., upholding the trial court’s imposition of a geographical restriction on the child’s primary residence in a case where the mother was appointed sole managing conservator.

When parents are appointed joint managing conservators, geographical restrictions on a child’s primary residence (for example Dallas and contiguous counties) by courts are more common than not in Dallas divorce and custody cases, as well as divorce and custody cases throughout Texas. In fact, the Texas Family Code specifically provides that the court may impose a geographical restriction on a child’s residence when the parents are appointed joint managing conservators. Tex. Fam. Code §153.134(b)(1)(A). In contrast, the provision of the section Texas Family Code that provides for a sole managing conservator’s right to designate the primary residence of their child does not even reference geographical restrictions, stating instead that a sole managing conservator’s right is subject to limitation by the court. Tex. Fam. Code §151.132(1).

The Amarillo Court in In re A.S. cited the public policy of Texas, in assuring that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children, in support of its decision. Further, the Court noted that nothing in the Family Code prevents imposition of a geographical restriction in cases where one parent is appointed sole managing conservator.

This is an important case to keep in mind if you are a parent who may be appointed possessory conservator, or if you are an attorney representing the party who may be appointed a possessory conservator. Cite to the argument provided in In re A.S., and ask the court to impose a geographical restriction on the child’s residence. If you are the sole managing conservator, or the Texas custody attorney representing them, be prepared to address this issue if you wish to have the freedom to move wherever you choose with your child.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jay Gormley, CBS 11 10/09/2009

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

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

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

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

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

As the writer Sally Abrahms describes it:

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

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

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

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

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

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

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

 REEWY2Z2WP33

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

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

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

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

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

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

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

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

That's how OurFamilyWizard.com began.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The duties of a PC or PF include: 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Today, channel KDTX featured Michelle May O'Neil on the television show Joy In Our Town to discuss challenges in paying and receiving child support in a down economy.  O'Neil gave pointers to obligors (paying support) who have lost their jobs and find it difficult to make the payments, as well as to obligees (receiving support) who need to collect and enforce the payment.

UPDATE:  Unfortunately, the show's airing has been delayed until November 13, 2009 at noon.  But you can see it below!

To watch the video, click here: www.youtube.com/watch

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Although it may seem like common sense, there are a number of things parent shouldn't tell their kids during and after their divorce.  A common them among some of these things is the assignment of blame for the divorce (be it blaming the other parent or the child).  Another common theme involves the delivery of the message.  Communication experts have routinely pointed out that approximately 80% of communication is in the delivery.  Also, these communication tips not only apply to divorce cases in Dallas but across the country too.

Examples of things not to say that fall in the "not my fault" category are:

1. I don't want a divorce, but your [mom/dad] does;
2. You can thank your [mom/dad] for us splitting up; and
3. Because of what you did, we're getting a divorce.

Examples relating to the delivery of the message include: 

1. Yelling at the other parent in front of the children; and
2. Expressing apathy/frustration about the other parent's rules.

Sometimes parents "sugar coat" the issues which results in their children having unrealistic expectations.  Although the level of explanation to provide a child varies by age, intellect and maturity, parents do themselves a disservice by trying to shield their children from truths surrounding their divorce. 

Bottom line: Parents should remember to avoid blame assignment and pay attention to how they communicate with their children when discussing their divorce.  Hat tips to Dick Price's blog and Wolfgang at Singleparentgossip.com for the motivation behind this post. 

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In my previous two posts I defined the terms commonly used in custody determinations and the factors courts consider in determining custody.  Now that we have these housekeeping issues taken care of, I'll discuss the presumptions that apply in conservatorship determinations and the hurdles parents have to overcome in getting "sole custody."

 It is presumed that appointment of both parents as joint managing conservators is in the best interest of the child.  The rationale behind this is that the appointment of both parents as the child's conservator provides the child with the best care and opportunities, as well as the best environment for the child's mental, moral and emotional development.  Texas courts should also, but are not required to do so, consider Texas public policy which aims to: (1) ensure that children have frequent and continuing contact with both parents; (2) provide children with a safe and stable environment; and (3) encourage parents to share in the rights and obligations in raising their children after their divorce. 

If a parent seeks appointment as the sole managing conservator against the other parent then that parent must overcome the presumption that appointment of joint managing conservators is not in the best interests of the child.  Note that if there are allegations of domestic violence, the parent seeking appointment as sole managing conservator is not required to rebut the joint managing conservator presumption. 

In order to rebut the joint managing conservator presumption, the parent seeking appointment as sole managing conservator is required to present evidence that appointing joint managing conservators is not in the child's best interest.  This is done by looking to the Holley factors I discussed in part two of this series of posts.  If the parent is successful in overcoming the joint managing conservator presumption, the other parent must be appointed as a possessory conservator unless the court finds that doing so would not be in the child's best interest and allowing that parent to have possession or access to the child would endanger the child's physical or emotional welfare. 

If, however, there are allegations of domestic violence, then it is somewhat easier to rebut the joint managing conservator presumption.  The Texas Family Code prohibits the appointment of parents as joint managing conservators if credible evidence of domestic violence is presented.  Credible evidence of domestic violence is evidence that a parent has a history of past or present child neglect or a history of abuse that was directed to the other parent, a spouse or the child. 

Because the burden of overcoming the joint managing conservator presumption is so great, the majority of the time the court appoints parents as joint managing conservators.  When appointing joint managing conservators, the court must appoint one parent as the "primary" joint managing conservator.  The primary joint managing conservator is the parent that is granted the exclusive right to designate the child's primary residence.  In determining the who to appoint as the primary joint managing conservator, the best interests of the child control. 

In sum, it is difficult to overcome the joint managing conservator presumption and to obtain "sole custody" of a child.  Of course, the issues presented in this series of posts pertain only to the determination of conservatorship.  Once conservatorship is determined, the court must then allocate periods of possession and access to the children.  Thus, even if a parent is designated as the sole managing conservator, it is likely that the other parent will be granted as a possessory conservator and have some periods of possession and access to the child. 

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To Show Intentional Underemployment for Purposes of Calculating Child Support, Must Show Intent, Not Just Reduction of Income

Facts: Trial court found Father’s monthly net resources were $4,779.90 in 2006, and $3,393.40 in 2007. Trial court further found Father obligated to support 2 children, one before the court and another from a previous marriage. Divorce decree shows family code guidelines direct child support payments of $593.77/month based upon Father’s 2007 monthly net resources. Trial court, however, found that “testimony shows that the obligor [Father] was voluntarily underemployed during 2007” and set child support payments at $825/month.

Held: Affirmed final decree of divorce as modified.

Opinion: To begin the voluntary underemployment analysis, trial court contemplates obligor’s proof of cur-rent wages. Once obligor’s wages are established, burden shifts to obligee to demonstrate obligor’s intent to decrease income for purpose of reducing child support payments. Evidence of intent, such as circumstances of obligor’s education, economic adversities, business reversals, business background, and earning potential, gives rise to an inference of voluntary  underemployment. These factors, however, are not exhaustive.

Father’s employer stated that by agreement Father set his own schedule and did not work every day. Employ-er further testified that he assigned Father’s projects, and Father received a 40% commission from the profits.

Employer told trial court that Father earned $62,730 in 2005, $76,900 in 2006, & $54,300 in 2007. When asked about the earnings decline between 2006 and 2007, Employer indicated that he reduced Father’s work-load based on Father’s emotional state and that his business decreased overall because of adverse economic conditions. Employer testified Father did not ask for a reduction of his workload, and that he subsequently asked Employer to increase it. Father told trial court that in 2007 his income decreased more than the income of the business overall because Employer would assign more work in the downturn to those employees with lower commission percentages. There is no evidence to the contrary.

Mother had the burden at trial to present evidence of underemployment as a specific basis for departing from child support guidelines applied to Father’s 2007 income. Such evidence must be of a “substantive and proba-tive character” giving rise to an inference of intentional underemployment. She did not meet this burden. Therefore, final decree of divorce modified in part by substituting $593.77 for $825 as the amount of Father’s monthly CS obligation.

Comment: Given current economic conditions, in our practices we are likely to be on one side or the other of a situation in which the child support obligor loses their job or suffers a decrease in income. Naturally, the obligor is going to want to reduce their child support payments accordingly. It is also likely the obligee is going to be unhappy that there is less money coming in. Although the obligee might be unhappy and might be used to higher child support payments, in this economy, decreased income for many is a reality, and, as this opinion illustrates, does not form the basis for a claim of intentional underemployment. The moral of this case – you have to show some intent to prevail on a claim of intentional underemployment. M.M.O.

In re J.G.L., ___ S.W.3d ___, 2009 WL 2648401 (Tex. App. – Dallas 2009, no pet. h.) (08/28/09).

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 Divorce Court Cannot Order a Parent to Take Meds or Go To Treatment

Facts: Father and mother married 09/06/05. They had child on 5/22/06. On 4/17/07, father filed for divorce.  Both mother and father sought joint custody, but only mother sought designation as the conservator with right to designate child’s primary residence. Evidence at trial showed that father had suffered from bipolar disorder and drug abuse since he was a teenager. Father had a history of starting and terminating treatment. At the time of marriage, father was not taking medication or attending counseling. In 12/05/07, father relapsed and used methamphetamine twice. Father restarted therapy and medication but did not take his medication consistently. On 05/29/08, trial court divorce decree appointing father and mother JMC and giving mother the right to establish the child’s primary residence. The decree required father to continue taking his medication, going to counseling, and attending AA meetings. Father appealed.

The court of appeals found the divorce judge committed error and reversed the decision.

Opinion: Although trial court had discretion to require father to continue treatment as a condition of possession and access, it could not simply issue stand-alone orders to father. Because complying with the orders was not a requirement for father to maintain his parental rights, the orders were not related in any matter to the child. They were, therefore, an abuse of trial court’s discretion.

Comment: Here, the court order failed to provide any link between the father’s access to the child and the requirement of continued medication and counseling. The father argued that the requirements pro-vided in the decree violated his rights as an “incapacitated person” under the Texas Probate Code. The Amarillo Court agreed. Another argument that father could have made here is that the court’s order requir-ing him to take medications violates his constitutional rights. Under Washington v. Harper, 494 U.S. 210 (1990), a person has a significant constitutionally protected liberty interest in avoiding the unwanted admin-istration of antipsychotic drugs. In order for the government to require someone to take medication against their will, there has to be a finding, by clear and convincing evidence, that the person is a danger to himself or others and the treatment is in the patient’s best interest. See Tex. Health & Safety Code §574.106(a-1). So, although a judge can enter orders affecting the child based on the parent’s decision to take or not take medication, the court cannot order the parent to take the medication outside of an involuntary suit under the Texas Health and Safety Code. M.M.O.

In re Marriage of Swim, __ S.W.3d __, 2009 WL 1940877 (Tex. App. -- Amarillo 2009, no pet. h.)

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In my previous post I talked about the various terms used in Texas courts regarding child custody.  I also stated that the best interest of the child is the first priority for any Texas court presented in a conservatorship and/or possession determination.  In this post, I'll continue our discussion by looking at the factors courts consider in determining what is in the best interest of a child (i.e., the Holly Factors). 

The first main category a court will assess is the parent's ability to care for the child.  Generally speaking the following seven factors are frequently considered:

• Which parent will best provide for the child's physical, psychological, and emotional needs now and in the future?
• Does either parent pose any physical or emotional danger to the child now or in the future?
• Which parent will present the most stability for the child?
• What are the parents' plans for the child?
• What level of cooperation exists between the parents? 
• What are the parenting skills of each parent?
• Which parent was the child's primary caregiver before the divorce was filed?

The second main category to be assessed is maintaining family relationships.  Generally, the following six factors are considered:

• The child's desires (if the child is 12 years of age or greater)
• The geographic proximity of the parents and other family members
• If divided or split conservatorship is requested, the court can consider what effect separation would have on the siblings
• The extent to which each parent can encourage and accept a positive relationship between the child and the other parent
• Whether any parent ever knowingly made a false report of child abuse
• Whether there is a need for measures to protect the child from being abducted to a foreign country. 

The last main category deals with parental fitness.  In this category there are mandatory factors and optional factors the court considers.  The three mandatory factors are: 

• Whether there is any credible evidence of a history or pattern of past or present child neglect or physical or sexual abuse by one parent against the other, a spouse, or a child
• Whether there is any evidence of the intentional use of of abusive physical force by a parent against the other or any person under 18 years of age that is committed while the suit is pending or in the two years before the suit was filed
• Whether there has been a commission of family violence

The following are optional factors for the court to consider as they relate to the parties to the suit:

• Each parent's present fitness to care for the child (including recent past conduct that is a reasonable predictor of current fitness)
• Whether either parent has a drug or alcohol problem
• Whether either parent's sexual conduct renders that parent unfit to act as a parent (for example, if a parent has pornography that is accessible to the child)

It is also a comfort to a lot of our clients that the court can NOT consider the following factors: 

• Martial status (although a parent's marital status cannot be used by itself to determine who should be appointed as the child's conservator, court's can consider a parent's marital stability)
• Gender
• Race
• Religion (except if the religion requires the parent to engage in illegal, immoral or harmful activities).

Although this may seem like a short list of factors, there are several nuances to each factor listed.  Now that we have the basic terms down and an understanding of what the Holly Factors are, in my next post I'll discuss the presumptions that apply is conservatorship determination and how they impact a party's desire for "sole custody." 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Consider this news item I read about today:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Source:
Claire Kamp Dush
Ohio State University
 

Read this article on the Medical News Today website.

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

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

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

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

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

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

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

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Shout out to winning lawyer Kirk Pittard, a Dallas lawyer who handles civil appeals!  He tells me that this appeal was a companion to a civil lawsuit over the same matter.  Looks like a good result to me. 

-- MMO

In a recent decision by the Dallas Court of Appeals, the rights of a biological father were vindicated.  In the case of In the Matter of B.B.M, a child's biological father appealed the trial court's determination appointing the child's non-parents as joint managing conservators.  In the Matter of B.B.M., -- S.W.3d --, No. 05-08-00501-CV, 2009 WL 1801035 (Tex. App. - Dallas, June 24, 2009). 

The facts of B.B.M. are very interesting.  Biological father and mother live together as boyfriend and girlfriend.  Mother and biological father break up and mother moves out of the couple's home.  After a few months, mother moves in with her new boyfriend.  Shortly after mother moves in with her new boyfriend, she discovers she is pregnant.  New boyfriend and mother believe that new boyfriend is the father (turns out he wasn't) and decide to place the child up for adoption. 

Biological father later learns of mother's pregnancy and becomes concerned the child might be his.  Mother continues to work with an adoption agency to place the child with adoptive parents in Idaho.  Biological father learns that mother is about to give the child up for adoption, contacts the adoption agency, informs it of his concerns that he is the child's father and that he objects to the pending adoption.  Adoption agency proceeded with the adoption, the and Idaho parents took the baby home from the hospital after executing an acknowledgment they understood there was a risk the biological father (still disputed at this point) would not relinquish his rights to the child.

Approximately three weeks after the child's birth, biological father filed notice of his intent to claim paternity of the child.  In response, the adoption agency filed suit requesting the termination of biological father and mother's parental rights.  Biological father counter sued to establish paternity, to which the court ordered a paternity test which confirmed mother's current boyfriend was NOT the father. 

After a trial by jury, the court awarded managing conservatorship of the child to the adoptive parents.  Biological father then appealed this determination. 

The court noted the strong presumption that the best interest of a child is served by appointing a natural parent as managing conservator is deeply embedded in Texas law.  (citing Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990)).  To overcome this presumption, a nonparent must prove by a preponderance of the evidence that appointment of the parent as managing conservator would significantly impair the child's physical health or emotional development.  See Tex. Fam. Code Sect. 153.131(a).  The evidence required to do so must support the logical inference that some specific, identifiable behavior or conduct of the parent will probably harm the child.  Further, mere speculation that a nonparent would be a "better" custodian of the child is wholly inadequate to meet this burden.  

In reviewing the evidence presented at trial, the court noted the adoptive parents primarily related to the potential impairment of the child's emotional development resulting from his removal from the adoptive parent's home.  The court also noted that the proper focus of inquiry is solely whether the placement of the child with the natural parent would significantly impair the child's physical or emotional health. 

In reversing the trial court, the court held there was no evidence presented that the child suffered from any ill effects from time spent with his biological father and that when a nonparent and a parent are both seeking managing conservatorship, close calls go to the parent.

The rights of a parent have been characterized as essential and far more precious than any property right.  As a Dallas Divorce Lawyer, I am ready, willing and able to help protect these precious rights.

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In a July 31, 2009 opinion by the Dallas Court of Appeals, it was confirmed that Federal law trumps Texas law when it comes to income tax issues.  In In re S.L.M., the mother brought child custody proceedings against father.  The district court appointed mother and father as joint managing conservators and awarded mother the right to claim the children as exemptions on her federal income tax return. On appeal, father contended the district court erred in awarding mother the right to claim the two children as tax exemptions.  In re S.L.M., ___ S.W.3d ___, No. 05-08-01277-CV, 2009 WL 2343264 (Tex. App. - Dallas July 31, 2009, no pet. h.).

The Dallas Court of Appeals held the district court erred in awarding mother the exemption rights and examined tax exemptions under the United States Internal Revenue Code.  In computing taxable income, a taxpayer is permitted to claim dependents as exemptions.  29 U.S.C. Sect. 151(a) & (c).  The Internal Revenue Code provides that for divorced parents the custodial parent is the party entitled to the dependent exemption.  Id. at Sect. 152(e)(1).  The Internal Revenue Code defines a custodial parent as the parent having custody of the child for the greater portion of the calendar year.  Id. at Sect. 152(e)(4).

In applying the relevant provisions of the Internal Revenue Code to the facts, the court held that on any given week the father had possession of the children for approximately 100 hours as compared to 68 hours a week for the mother.  Accordingly, the trial court erred in awarding mother the dependent exemptions and reversed its ruling. 

The S.L.M. ruling shows that notwithstanding the power of the district court, Federal law trumps Texas law when it comes to tax issues.  As a Dallas divorce lawyer it is important to stay on top of not only family law developments but developments in other areas that impact family law, including (although sometimes mind numbing) tax law. 

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House Bill 1012, passed by the Texas Legislature and awaiting Governor Perry's signature, changes the Texas Family Code provisions regarding access by a grandparent to a grandchild over the objections of a parent.  The statute allows a court to grant access over a parent's objection by a grandparent to a grandchild.  This changes the prior law that required a court to grant access upon meeting the terms of the statute.  Now, a court may or may not grant the access.  If the court does grant access over a parent's objection, the court must enter certain findings about whether the grandparent has overcome the presumption that a fit parent acts in the best interest of that parent's child by proving that the denial of access to the child would significanly impair the child's physical health or emotional well-being. 

Click here to see the text of HB 1012.

This new law further erodes grandparents' access to grandchildren, particularly in circumstances where one parent has passed away and the other parent refuses to maintain a relationship with the deceased parent's family.  Instead of requiring the court to award access upon meeting the already high standard of proof set out by the US Supreme Court in Troxel v. Granville, the new law allows a court to either grant access or not grant it, even in the face of the required proof.

As a Dallas family law attorney, I have found the Dallas County family court judges to be very amenable to grandparent access to grandchildren.  I have had a couple of cases where one parent passed away and the other parent denied a relationship between the deceased parent's family.  In those cases, the judges have all been very empathetic to the grandparent's situation and wanted to encourage that relationship.  But, I'm sure some judges are not so inclined.

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San Antonio Court of Appeals holds that a trial court erred in dismissing suit for lack of standing when there was conflicting testimony. In re Y.B., ___ S.W.3d ___, 2009 WL 1405166 (Tex. App.—San Antonio 2009, no pet. h.) (5/20/09)

Facts: Wife adopted children in 12/04 before husband was in the picture. On 4/22/07, husband and wife married. On1/21/08, husband moved out of wife’s house. Husband filed a SAPCR seeking to be appointed MC of wife's children on 3/10/08. Wife filed a motion to dismiss and a plea to the jurisdiction. Trial court held a hearing with conflicting testimony about the extent of husband’s involvement with the children and granted the motion to dismiss. Trial court also awarded attorney’s fees to wife under T.R.C.P. 13.

Held: Reversed and remanded.

Opinion: TFC §102.003(a)(9) grants standing to any person who cares, controls and possesses a child for at least six months prior to and not more than 90 days before the date of filing of a petition. Witnesses gave conflicting evidence as to husband’s involvement with the children. Since there was a question of fact regarding husband’s standing, trial court erred in dismissing husband’s petition. Therefore, husband’s pleadings were not groundless, and trial court erred in awarding attorney’s fees.

Section 102.003(a)(9) is probably THE most litigated section of the code right now. I currently have several cases pending in Dallas County family law courts which are testing the limits of this section. Look for more cases to come out on how far the courts of appeals, and maybe ultimately the Texas Supreme Court, will extend this vague section.

This commentary originally appeared in the June 2009 Section Report of the Texas Family Law Section newsletter, where I serve as a guest editor.
 

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New case out of Dallas Court of Appeals holds trial court did not abuse its discretion by reversing sanction imposed by associate judge.  In Re F.A.V., ___ S.W.3d ___, 2009 WL 1314165 (Tex. App.—Dallas 2009, no pet. h.) (5/13/09)

Facts: Father and mother filed for divorce. On 6/23/06, associate judge appointed a parenting coordinator and ordered father and mother to pay part of his fee. On 8/24/06, associate ordered father and mother to pay for 12 more hours of work. On 10/4/06, associate judge ordered mother to pay $375 by 10/6/06 or face sanctions, including striking her pleadings under TRCP §215.2(b)(5). On 10/12/06, father moved for sanctions for mother’s failure to pay. On 11/15/06, associate judge granted father’s motions and struck mother’s pleadings. Mother requested a de novo hearing before trial court on the sanctions. At the de novo hearing, the district 27
court found that mother had paid the coordinator and reversed the associate judge’s ruling. Father appealed the final ruling on the sole issue that trial court abused its discretion by reversing the associate judge’s order.

Held:  Affirmed.

COA Opinion:  District courts review associate judge’s orders de novo. A district court’s decision to grant or not grant sanctions is reviewed on an abuse of discretion basis. There are no cases where an appellate court found a trial court abused its discretion by not striking a party’s pleadings. Striking pleadings is an extreme measure and rarely appropriate in suits affecting the parent-child relationship. Therefore, trial court did not abuse its discretion.

In my experience as a divorce lawyer in Dallas, Texas, the best interest of the child is the overriding concern in any SAPCR proceeding. This requires the trial court to prioritize the child’s best interest over sanctionable conduct of the parties. To limit a party’s proof at trial as a sanction also necessitates a limitation on the evidence to be presented regarding the child’s best interest. For the trial court to make a fair determination on the best interest of the child, both parties must be allowed to present evidence. Thus, a trial court must weigh the best interest of the child in a fair trial when considering sanctions against a party.

I serve as a guest editor for the State Bar of Texas Family Law Section newsletter.  This commentary originally appeared in the June 2009 edition.

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Dallas Divorce Lawyer Michelle May O'Neil was quoted in the July 2nd, 2009 edition of Dallas Morning News in Emily Ramshaw's article Child Support Suffers As Economy Suffers.  The story lead Thursday's edition with Ms. O'Neil's picture appearing on page 14A.  

Here's the excerpt from the article pertaining to Ms. O'Neil:

Michelle May O'Neil, a family law attorney with clients in Dallas and Collin counties, said Crouse's case is common. She's seen a steady uptick in child support-paying parents who have either lost their jobs or had their hours reduced.

O'Neil said family court judges, who traditionally have issued permanent rulings, are giving these financially strapped parents temporary relief instead.

If someone is unemployed, she said, a judge generally will temporarily reduce child support, and then call a review hearing a few months later.

"A kiddo's expenses don't go away just because the economy is tight," O'Neil said. "Judges are giving people a Band-Aid so they can find another job."

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Effective September 1, 2009, an agreed parenting plan may either designate the conservator who has the exclusive right to designate the primary residence of the child  or provide that the child's primary residence is required to be within a specified geographic area.  The Texas Legislature passes HB 1012 amending Texas Family Code section 153.133. 

See the text of HB 1012 by clicking here.

Comment:  The law has shifted back and forth over the years as to wehther the parties may agree to a geographic restriction instead of awarding one party or another the right to establish the primary residence.  This has usually arisen as an issue between two very involved parents who want to share custody of their children and who want to live in a small defined area.  Although many divorce lawyer in Dallas and other parts of Texas entered into these agreements when settling cases, the law did not specifically authorize such.  This new law expands the authorized possibilities in fashioning an agreement between parties to raise their children and requires a court to approve such an agreement when reached.  Usually this right is important only when there is a question as to which public school the child must attend within a school district.  Otherwise, the remainder of a typical family law court order sets out each parent's respective periods of possession of a child (aka parenting time) and otherwise delegates decision-making authority.

Note, however, that the new law only makes this provision for no geographic restriction when dealing with agreements between parties.  In a contested trial, a court may only render an order that designates the conservator who has the exclusive right to determine the primary residence of the child and the geographic area in which the residence shall be maintained.  The law does not change this.  A judge cannot, after a contested trial, only designate a geographic restriction on the children's residence without designating a primary parent. 

This will encourage settlement of disputes because the parties will be able to fashion a remedy that the court cannot award at a contested trial.

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It is easy to get lost in your emotions amidst a divorce.  During such an emotional time it is easy to forget that divorce may be the end of a marriage but not the end of a family.  Sections 153.311 through 153.317 of the Texas Family Code sets forth the standard possession order promulgated by the legislature to encourage frequent contact between a child and each parent for periods of possession that optimize the development of a close and continuing relationship between each parent and child.  Consequently, co-parenting is viewed as a necessary means to achieve the legislature's intent.  Couples who separate but continue to work cooperatively as parents give their children the best chances for a smooth adjustment to living in two separate households and continued growth.

I recently came across a South Carolina Family Law Blog posting discussing five tips for effective co-parenting.  Although much of the advice is common sense, it must be remembered that sometimes our emotions override our "common sense."  Here are the five tips:

1. Keep emotions in check. There may be some lingering anger, sadness and resentment among you, but your kids have already been [sic] enough. Give them the benefit of parents that work together instead of yelling, fighting and name-calling.
2. Think about the kids. At the end of the day, your children are what really matter, not your own personal feelings towards your former spouse. No matter what kind of disputes come up – from where to spend holidays to disputes over money – put aside what you want or need and take the time to consider your children’s desires and best interests.
3. Communicate. It will be very difficult for either of you to be effective parents if you do not communicate information to one another. Whether it’s sharing news about school events or updates on your child’s health, make sure you share all important information with the other parent.
4. Be businesslike. You are no longer married, but you still have to interact with your ex for the sake of your kids. It can sometimes be helpful to stop thinking about your relationship in personal terms and start thinking about it in more professional ones, seeing your ex as a partner in the business of raising happy, healthy children.
5. Don’t badmouth. You have little to gain and a lot to lose when you choose to say hurtful things about your ex in front of your children. Your children may be well aware of the reasons why you and your former spouse do not get along, but that doesn’t mean you have to keep dragging them out. Even if you no longer love your ex, your children still do, and they deserve an environment that doesn’t attempt to manipulate or deride those feelings.

In addition to basic parenting issues, the couple must somehow find a way to do what was probably a challenge in their relationship: communicate clearly and effectively with each other. Working together is essential to the success of a co-parenting arrangement. It may be hard to work through your communication issues, but everyone will benefit if you do.

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House Bill 1012, which has been passed by the Texas Legislature and is awaiting the Governor's approval, eliminates the provisions for a written designation by a child over the age of 12 years to choose with whom he or she wants to reside primarily.  Instead, a child over the age of 12 years has a right to express a preference to the judge in chambers as to the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child. The new law will take effect September 1, 2009 and will apply to any pending or newly filed suit.

See the text of the bill by clicking here.

Comment:  As a Dallas divorce attorney, I have found that judges rarely appreciate parents who involved their children in the legal matters by having a child sign a written preference.  I have also found that judges rarely appreciate parents who involved their children in the legal matters by requesting the judge to interview the child in chambers.  Judges are more tolerant with an older teenager than a younger one, as older teenagers are more prone to strong preferences and to act out if their voice is not considered.

See related blog entry Changes to the Texas Standard Possession Schedule.

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The Lege has adjourned and left us with a bunch of new laws to sort out.  One of those that applies to Dallas divorce cases involves changes to the Texas Standard Possession Schedule, scheduled to be effective on September 1st. 

House Bill 1012 (click here to see text of enrolled bill) provides that the new default time for the beginning and ending of a possession period will be 6:00 p.m. This time will apply automatically unless a different time is elected by a conservator at the time the order is rendered.  The parent opposed to the new time selected by the other parent must show the time change is not in the best interest of the child.

Under the old law, a parent could elect to have weekends begin at the time school is regularly dismissed, but other parts of the schedule were unclear as to the beginning and ending times of the possession period.  Now, all of these times begin and end at 6:00 p.m., unless otherwise specifically stated.

Upon request, the court must alter the standard possession order unless the court finds that alteration is not in the best interest of the child to allow the possession to begin or end when school lets out or resumes for the following periods of possession:  weekends, Thursdays, Spring Break, Christmas, Thanksgiving, and Mother's Day/Father's Day.  In most districts, Father's Day occurs during the summer when school is not in session, but it can be extended to another time upon request.

Comment:  As a Dallas Divorce Lawyer, who is Board Certified in Family Law, I think this law may be somewhat confusing in application.  Our current standards provide that the Texas Standard Possession Schedule automatically applies unless a party shows a reason why it should not, making the Texas Standard Possession Schedule the presumption and placing the burden on the party opposed to it.  This new law makes the changes to the Texas Standard Possession Schedule the presumption, which may cause confusion in figuring out who has the burden of proof regarding the changes.  MMO

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Recently I came across a blog discussing tips to surviving a divorce.  Interestingly, the blog wasn't written by an attorney but the divorce survival tips all come back to one thing - the importance of hiring a good lawyer.  The blog has some good tips that apply to a divorce in Dallas Texas which I will outline in the order they were presented.

1. Hire a good divorce lawyer.  Hiring an attorney that is compatible with your personality is absolutely critical in protecting your rights and best interests during such a troubling time.  The right attorney serves not only as a mediator but also as an advocate of your interests.
2. Keep written records of everything.  Keeping a journal of who said what and when often shows which of the parties is more organized.  Also, written records of conversations are helpful during the division of community property.
3. Keep your cool.  Although this is a stressful time, keep in mind that everything you say or do is going to be looked at under a microscope.  If you lose your cool, you can stand to lose a lot.  Not only in terms of property, but also in custody determinations. 
4. Read everything.  Obviously, a good attorney will ensure that you understand everything relating to the division of property and custody issues.  However, never assume that just because your attorney reads everything that you are not responsible for doing the same.
5. No guilt trips.  This ties in closely with number three.  Remember, nobody likes a sneaky, passive aggressive person.  Communicate your concerns to your attorney in a direct manner.  Address any problems as they arise - not after everything has built up and is coming to a head.
6. Never use children as leverage.  All to often we see clients who put their interests (i.e. revenge) before those of their kids.  Remember that the divorce is not their fault, and that you have absolutely nothing to gain (but very much to lose) by using your children as a bargaining tool.

Although these may seem like common sense, it is easy to forget them during a divorce proceeding.  A good divorce attorney who clicks with your personality will help you remember them.

Our firm would like to help you with your divorce.  We represent people getting a divorce in Dallas, Collin, Denton, and Tarrant Counties in Texas.

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In a family law case where conservatorship or possession (aka parenting time) of children is at issue, the custody evaluation or social study can make-it-or-break-it.  I've often referred clients to the Separated Parenting Access & Resource Center website and specifically their Guide to the Parenting Evaluation Process.  This guide provides insight, aimed at nonprimary parents, for all parts of the process, such as the initial interview, importance of documentation, psychological testing, parent/child joint session, use of collateral contacts, and other aspects of the process.

Some custody evaluations are performed by a social worker, maybe one employed by the county where the case is pending.  These are often less-expensive than other versions of the evaluation.  If the parties can afford it, the better option is to use a private professional to conduct the custody evaluation.  A private professional can be a social worker that works in private industry.  Or, if mental health issues are a contested topic in the case, another option is to use a forensic psychologist to conduct the custody evaluation so that psychological evaluations will be a part of the process.  Often a court-appointed social study conducted by the county-paid workers will not involve a home study, whereas a private paid evaluation will.

The resulting report of the evaluation will be relied upon heavily by the judge and/or jury in deciding the conservatorship or possession issues.  That's not to say that you can't challenge an evaluation that goes against you, but it does make your case more difficult.

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Children are the innocent victims of divorce.  Sometimes they blame themselves for the family's breakup and try to "fix" it.  Children need to be reminded that, just because mom and dad are getting a divorce, that does not mean that they don't both love the children.  Also, they need to be reassured that just because one of the parents is leaving the household, does not mean they are leaving the child.

A Kid's Guide to Divorce is a website that I found from a post from Michael Sherman of AlabamaFamilyLawBlog.  This website is a wonderful resource aimed at children of divorce.  The website says, "Sometimes the feelings kids have about their parents' divorce are so strong that kids have a hard time concentrating on anything else.  When kids are very sad, mad, or worried, they may have trouble paying attention in class..."  Not only is this website insightful, it is especially important because it is aimed at kids on their level.  There's also an article on Living With A Stepparent, Being Adopted, What Should I Do If My Family Fights, and Why Am I So Sad.  For every parent going through a divorce with kids, this webiste is a must read for both the parents and the children.

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