Mister Rogers talked about divorce

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

Hat Tip: Huff Post Divorce
 

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

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

 

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

 

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

 

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

Sandra Bullock and Step-Moms

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

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

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

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

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

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

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

 

 

Presumed Fathers: Time is of the Essence (When Paternity is at Issue in Divorce)

 

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.

Affirmed: Geographical Restriction on Sole Managing Conservator's Right to Designate Primary Residence

 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.

Dallas Court of Appeals grants mandamus: trial court imposed greater burden for relocation than law allows

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.

If you're gonna divorce in Dallas, you better plan to stay here!

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.

Standing for Step-father to Sue for Custody

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.
 

Geographic Restriction of Child's Residence New Law

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.