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

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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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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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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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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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 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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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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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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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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