Best Interest of the child standard in Texas family law cases

The best interest of the child is the overarching factor in deciding Texas family law custody cases. The specifics of how a judge should approach examining the best interest of the child was first set out by the Texas Supreme Court in 1976 in the case of Holley v. Adams. The non-exclusive list of factors from that case include:

(1) the desires of the child;

(2) the emotional and physical needs of the child now and in the future;

(3) the emotional and physical danger to the child now and in the future;

(4) the parental abilities of the individuals seeking custody;

(5) the programs available to assist these individuals to promote the best interest of the child;

(6) the plans for the child by these individuals or by the agency seeking custody;

(7) the stability of the home or proposed placement;

(8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and

(9) any excuse for the acts or omissions of the parent.

Holley v. Adams, 54 S.W.2d 367 (Tex. 1976).

In an article from the December edition of the Texas Bar Journal, Judge Donald Dowd of Cass County cites to a publication by the American Bar Association – A Judge’s Guide: Making Child-Centered Decisions in Custody Cases for a list of some questions that an attorney can ask a client based on the age and development of the child to establish the best interest of the child.

Infant (birth to 18 months)

  1. How can the parent respond to the child’s needs in eating, sleeping, and bathing?
  2. Is the parent aware of things that could endanger an infant?
  3. Has the parent shown capability in supplying basic needs?
  4. How is a parent’s physical and psychological health?
  5. Does a parent have a substance abuse issue or medical problem? If so, has the issue been addressed?

Toddler (18 months to 5 years)

  1. What kinds of learning opportunities does the parent create for the child to master both physical and mental tasks, including language development?
  2. lf the parent is working, are day care arrangements carefully selected and monitored to ensure that a safe and stimulating environment is provided for the child?
  3. Does the parent provide sufficient opportunities for the child to socialize with other children and supervise these activities in order to ensure safety?
  4. Does the parent set expectations and rules that promote self-control and safety?
  5. How does each parent support the child’s relationship with the other parent?

Early Elementary School-Aged Child (5 to 7 years)

  1. How is the parent involved in the child’s community, school, and religious activities?
  2. Does the parent provide the child with time and a place to do homework, as well as provide assistance when needed?
  3. Does the parent communicate with teachers, coaches, and leaders?
  4. How does the parent handle academic difficulties that may require assessment, intervention, financial resources, and individual help?
  5. Knowing a child of this age experiences loyalty conflicts, does the parent assure the child of a loving relationship with the other parent?

Older Elementary School-Aged Child (8 to 10 years)

  1. How does the parent encourage the child’s need for productivity and self-reliance by supporting and facilitating involvement in activities?
  2. Does the parent seem to recognize the importance of peer friendships and foster these relationships?
  3. Is the parent aware of the child’s academic progress, mastery of material, completion of homework, and any behavioral difficulties in school?
  4. How does the parent minimize loyalty conflicts or prevent the child from feeling compelled to take sides?
  5. Does the parent avoid dwelling on financial or legal concerns with the child or within the child’s earshot?

Middle School-Aged Child (11 to 13 years)

  1. Is the parent able to contain hostility and negative discussion about the separation in the presence of the child?
  2. Does the parent recognize the younger adolescent’s sensitivity to criticism at this stage of self-doubt?
  3. How flexible and supportive is the parent of peer relationships and activities?
  4. How does the parent help the child remain organized and have a predictable study area and time, particularly between households?
  5. Does the parent know the younger adolescent’s friends and their parents?

Adolescent or High School-Aged Child (14 to 18 years)

  1. Does the parent support the adolescent’s participation in age appropriate activities, including financial, transportation, and psychological support?
  2. Does the parent attend events that the adolescent wants the parent to attend?
  3. How well informed is the parent of the adolescent’s school attendance, standardized and special testing, and history of report cards?
  4. Does the parent help the adolescent evaluate and assess decisions about the adolescent’s future and help the child plan financially?
  5. How does the parent discuss sexuality, healthy relationships, and other factors that may impact the adolescent, such as substance abuse, sexually transmitted diseases, and gangs?

Depending upon the age of the child, the attorney who gives the judge the answers to these questions in close cases such as these may give the client the slight edge needed to win the case.

New TV Show Divorce with Sarah Jessica Parker

Divorce TV showHave you seen the previews of the new television show Divorce with Sarah Jessica Parker coming soon to HBO? Here’s how one website describes the show: “Taking a hard look at love and marriage through a darkly comedic lens, Divorce is raw and uncomfortable at times… but it’s also one of the best new comedies of the year.”

Parker stars as Frances, a suburban wife and mother  of two teenagers,who finds herself increasingly irritated with everything her husband Robert (Thomas Haden Church) does. The way he hums along with Coldplay in the car. The way he repeats funny lines on TV instead of laughing at them. His mustache. And when their married friends Diane (Molly Shannon) and Nick (Tracy Letts) have a very public spat during a birthday party, that spurs Frances to make a decision that’s been years in the making: She wants a divorce. They proceed through a bitter, contested divorce.

Apparently, the storyline also has an element of class commentary with Frances and Robert clearly upper-middle-class. He’s a contractor and she’s an executive recruiter opening an art gallery, living in and idyllic, snow-covered neighborhood in upstate New York lined with beautiful homes. Insightfully, at one point, Frances asks in the aftermath of Diane and Nick’s fight, “How do you go from eight years of a happy marriage to wanting to blow someone’s head off?”

It will be interesting to see whether people are interested in watching other people go through a divorce. Most of the people that I know who go through it don’t want to relive it themselves or through the eyes of others. But maybe the writers and stars can make it relevant and not too depressing to make people want to watch it.

Divorce premieres on HBO on October 9th at 9:00 p.m. Here’s the link to the Divorce trailer.

What is adultery in Texas?


Adultery in a Texas divorce

This is another in my Super Simple FAQs series…

What is adultery in Texas?

Adultery is a legal term in Texas that means the voluntary sexual intercourse of a married person with one not the spouse. Texas Family Code § 6.003. Adultery does not have to occur pre-separation for it to be a ground for granting a divorce. In re Marriage of C.A.S. and D.P.S., 405 S.W.3d 373 (Tex. App. Dallas 2013). Even if a relationship with another person begun only after the separation of the spouses, that person may be found to have committed adultery.

Keep in mind that in Texas adultery requires sexual intercourse. Certain sexual encounters that are not specifically intercourse are not legally considered adultery. This marks the distinction between the legal term adultery versus the terms infidelity, cheating, or such. Exchanging sexually charged emails, photos, or texts with another person will not be adultery. Kissing, groping, petting, or even oral sex is not considered legally adultery.

And, adultery does not have to be prior to the separation of the parties, but can include relationships after separation but prior to divorce. In Texas, remember, you are married until you are divorced; there is no legal separation in Texas.

Adultery can cause a divorce to be granted in favor of one spouse or another, as opposed to being granted on no-fault grounds. Determining one party’s fault in the break-up of he marriage can then be used to support a disproportionate division of the community property between the parties. An adultery finding in Texas will not make a spouse eligible for alimony or spousal maintenance. An adultery finding alone will not change the outcome of child custody or conservatorship provisions either. As one judge put it, committing adultery may make you a bad spouse and give a reason for divorce, but it does not necessarily make you a bad parent.

What is visitation in Texas? What is the Texas Standard Possession Schedule?


Frequently Asked Questions

This is another post in my Super Simple FAQs series…

What is visitation in Texas?

Or What is the Texas Standard Possession Schedule?

In Texas, visitation is the loose term for the periods of possession of or access to children of parents who are no longer or never have been married to each other. Texas has certain guidelines in the law for visitation or periods of possession called the Texas Standard Possession Schedule. The first step in deciding who gets the children when is to look at who has been appointed the “primary parent” deciding the children’s primary residence. That person will have the child at all times not awarded to the secondary parent. The secondary parent will be presumed to have at least the Texas Standard Possession Schedule. A court may give more of less than the Texas Standard Possession Schedule based on the particular circumstances of the family.

There are three main categories within the Texas Standard Possession Schedule — possession for parents who live within 100 miles of each other, possession for parents who live more than 100 miles apart, and holiday possession periods that apply regardless of distance.

For parents who live within 100 miles of each other, the secondary parent will get the child every Thursday during the school year from 6 to 8 pm; every 1st, 3rd, and 5th weekend of a month from Friday to Sunday; 30 days during the summer; and every other Spring Break. For parents who live more than 100 miles apart, the secondary parent may choose to have every 1st, 3rd, and 5th weekend, or that parent may elect to have one weekend a month at his or her choice with notice to the other parent of which weekend is chosen each month. Additionally, when the parents live far apart, the secondary parent will get 45 days with the child each summer and every Spring Break. Parents who live far apart do not get Thursday periods, for obvious reasons.

Holidays are shared between the parents, regardless of distance, with alternating periods for Thanksgiving, the first half of Christmas break, and the second half of Christmas break. One year, one parent will have Thanksgiving and the second half of Christmas break, which the other parent will have the first half of Christmas break. That will flip the next year. Each year, the  mother will have Mother’s Day weekend and the Father will have Father’s Day weekend. Other holidays such as Easter, July 4th, or Halloween are not addressed in the rules and therefore just follow with the other provisions of the schedule.

The secondary parent who lives within 100 miles has the right to choose certain expansions as to the Thursday and weekend periods of possession, requesting to pick up the child from school or return to school at the end of his or her period.

How to modify custody in Texas?


Frequently Asked Questions

This post is another in my Super Simple FAQs series….

How to modify custody in Texas?

Custody — or conservatorship — regarding a child in Texas can always by modified until the child turns 18. Once a court order has been entered regarding custody or conservatorship, a parent must prove that there has been a “material and substantial change of circumstances” regarding one of the parents or children that requires modification of the court order. And, the new order sought must be in the best interest of the child.

A  modification begins with the filing of a petition to modify the prior order. A modification proceeding generally follows the process for any other suit, including service of process, time to answer, and right to trial if an agreement cannot be reached.

The most common modification of custody or conservatorship orders involves a modification of child support. The “material change” may be the obligor parent getting a raise or better paying job, requiring an increase. Or, the obligor parent losing his or her job, requiring a decrease in the amount of child support. Other reasons to modify a conservatorship order in Texas may be to adjust the periods of each parent’s possession with the child to accommodate a changed work schedule or the child’s schedule. Sometimes one parent wishes to change the right to establish the primary residence of the child from one parent to the other.


How to get custody in Texas?


Frequently Asked Questions

This post is another in my Super Simple FAQs in Texas divorce laws.

How to get custody in Texas?

Custody in Texas is a loose term — the legal term is conservatorship. Conservatorship in Texas refers to the legal and physical relationship of each parent to a child. When parents have never married, the court can allocate the rights and duties regarding the child, as well as physical possession and financial support, between the parents. When parents are married to each other, this is unnecessary according to the law. But, when they get divorced  it becomes necessary to have the courts establish these parameters.

Texas Primary residence

In Texas, most parents are called “joint managing conservators”, meaning they have joint legal (but not necessarily physical) custody. They share in the decision-making regarding the child. However, Texas law requires that one of the joint conservators be given the “primary right to establish the child’s residence”. That parents is loosely termed the “primary parent” in Texas. Usually the parents agree to share the right to make other decisions, such as the right to make educational decisions or the right to make medical decisions regarding the child. If the parents show a tendency to disagree about decisions, these rights can be allocated exclusively to one parent.

Texas Possession periods

The physical custody of the child involves splitting up the time the child will spend with each parent. In Texas, this starts with the Texas Standard Possession Schedule, but the parents can agree to do something different. Or, if the Texas standard schedule does not work for a family, the court can craft a different schedule.

Texas Child support

Lastly, custody includes financial support of the child. One parent usually pays child support and provides health insurance for the child. Child support is determined in Texas based on a percentage of the paying parent’s net income up to the first $8550/month of income. The parents will also share the uninsured medical expenses between them.

What is conservatorship in Texas?


Frequently Asked Questions

This is another post in the Super Simple FAQ series…

What is conservatorship in Texas?

Conservatorship is the term used in Texas and most other states to address the legal and physical aspects of sharing children when the parties are no longer or have never been married. Some people say “custody” which is a loose term for conservatorship. The term “custody” actually does not exist in Texas law. The first part of conservatorship in Texas regarding children, the parents will have a title. In Texas, either both parents will have the title “joint managing conservators” or one parent will be called “sole managing conservator” and the other parent will be called “possessory conservator”. In Texas divorce and suits regarding children, the parents start with a presumption for joint conservatorship. Only when there are big negatives, such as domestic abuse, drug/alcohol use, or a pervasive inability to get along, will the sole/possessory titles apply.

Second, the rights and duties regarding the children will be allocated. There are certain rights which are inherent that every parent has regardless of conservatorship titles. Then there are certain rights that may be either shared or allocated to one parent or the other. The main example of a right that must be allocated is the “right to establish the child’s primary residence”. Under Texas law, this right must be given to one parent or another. In rare circumstances, parents may — only by agreement — designate a geographic area as the child’s residence. Sometimes this may be a specific school district or maybe more specifically a particular school feeder zone. Also, the right to receive child support on behalf of the child is usually allocated to one parent. Other examples of rights that may be allocated to one parent would be the right to make educational decisions, the right to make medical decisions involving invasive procedures, or the right to get mental health treatment for a child.

A third aspect of conservatorship is deciding what time the child will spend with each parent. In Texas, this discussion begins with the Texas Standard Possession Schedule, which is presumed to be in the best interest of a child. There are certain expansions that can be requested to the standard possession schedule in Texas, such as the right to pick up the child from school when the period of possession begins. A court can vary from the Texas standard possession schedule based on the circumstances of a particular family.

The fourth aspect of conservatorship is the financial support of the child. This includes regular child support as well as medical support. For child support, Texas has standard child support guidelines for a percentage of net income of the obligor to be paid with a cap on the amount of income considered at $8550/month. The court has some discretion to award in excess of the standard child support guidelines based on the circumstances of the child. For medical support, one parent will be required to provide health insurance for the child. Sometimes providing the health insurance is allocated to one parent, while reimbursement for the cost of the insurance may be allocated to the other parent. Then the uninsured expenses are split between the parents, usually 50/50 or alternatively based on earning capacity.

How do you file for divorce in Texas?


Frequently Asked Questions

This post is first in a series of super simple FAQs related to Texas divorce topics…

How do you file for divorce in Texas?

A Texas divorce follows basically the same process whether you have attorneys or represent yourself, whether you have children or not, whether you have a lot of assets or little.

  1. Step One: jurisdiction. If you have lived in Texas for more than 6 months, you can file for divorce in Texas.
  2. Step Two: venue. Determine what county either you/your spouse or your children live in for at least 90 days. If not the same for all, the county the children live in will control.
  3. Step Three: petition. Prepare a petition for divorce. This is the document that opens the court’s file and begins the process. The petition will tell the court what your position is regarding the issues in the divorce. This may include whether a no-fault divorce or fault-based divorce is alleged, who should have conservatorship of the children, and whether any separate property exists that should be confirmed to a spouse. The petition must remain on file at least 60 days before finalizing the divorce – called the “cooling off” period. A contested divorce may last much longer than 60 days.
  4. Step four: service. Notify your spouse of the filing of the petition. If it is an agreed divorce, then the spouse can sign a waiver of service. Otherwise, the spouse must be formally served with citation of the divorce. The clerk of the court will issue the citation and it should be served personally upon the opposing spouse by a constable or private process server.
  5. Step five: temporary orders. If the divorce is not agreed, temporary orders may be necessary to set out some operating rules while the divorce works through the process. This could include seeking temporary orders on conservatorship or custody of the children, temporary child support, temporary spousal support, determination of who will live in the marital residence, how the marital bills will be paid, and how the attorneys will be paid.
  6. Step six: discovery. Written discovery can be sent to the other spouse if information is needed prior to resolving the issues. This may include standard questions in a request for disclosure, written questions in interrogatories, request for document production, oral questioning in a deposition, or request documents or information from third parties. In most divorces, agreed or contested, the parties will exchange sworn inventories listing that spouse’s opinion about the nature, character, and value of the marital assets and debts.
  7. Step seven: settlement negotiations. The parties should make a good faith effort to settle their case prior to a contested trial. Settlement negotiations can be attempted either between the parties or through the attorneys. Some find success in holding a settlement conference with the parties and attorneys all in one room together. If that is not successful, the parties should attempt mediation. Mediation is required by most courts prior to having a final contested trial. Mediation is a process where the parties and attorneys meet with a neutral third party to try to reach a settlement. If settlement is reached, the parties will sign a mediated settlement agreement, which is irrevocable once signed.
  8. Step eight: final trial. Finally, if the parties cannot settle their differences between themselves then the case will be submitted to a judge for decision on the contested issues after presentation of evidence and trial.
  9. Step nine: divorce decree. The divorce is concluded with the entry of a final divorce decree, signed by the judge, which addresses all of the issues regarding the marriage, children, and property division.
  10. Step ten: closing documents. Certain closing documents may be necessary to complete the divorce process. The most common extra document is a child support withholding order so the child support amount is automatically withheld from the obligor’s paycheck. Other closing documents may be necessary to divide real property, retirement accounts, or cars, especially when such items are held jointly.

How does premarital cohabitation affect division of marital property

premarital cohabitationThe New Hampshire Supreme Court ruled that a court must consider time that a couple lives together prior to marriage as a factor in division of assets. The ruling, a landmark decision in New Hampshire, does not require a court to alter the division that the court seems fair in a divorce, but asks the trial judges to consider time that a couple, in this case a same-sex couple, lives together prior to getting married. In the case before the court, two women began living together in 1993 and were formally married in 2011 when same-sex marriage became legal in New Hampshire. One spouse filed for divorce, arguing that the marriage was a short-term one, but the relationship was a lengthy 21-year ordeal. This factor, the spouse argued, should be considered in reaching an equitable distribution. (New Hampshire has equitable distribution laws regarding marital property compared to Texas community property laws.) The Supreme Court stated that the New Hampshire law permits the court to consider “any other factor it deems relevant”, which in this circumstance should include the premarital cohabitation; however, the Supreme Court fell short of holding that the division or property or alimony awarded must change. The Supreme Court’s decision is not limited to same-sex couples, but any couple who had a lengthy premarital cohabitation.

Texas laws differ from New Hampshire in that we operate under a community property system. However, under the Texas standard, the court must make a division of property that the court deems “just and right”. Within that standard, the court can consider any number of factors to determine the appropriate division of the community property (property gathered together during the marriage). In this vague, nebulous standard could be the length of premarital cohabitation. Much as the New Hampshire Supreme Court points out, the vague standard allows for such consideration even if the consideration does not cause a change in the actual division of property.


Read: N.H. Supreme Court says divorce courts should consider premarital cohabitation

O’Neil and Wysocki recognized among best divorce lawyers in Dallas area and Texas

Michelle O'Neil and Michael Wysocki Super Lawyers

O’Neil and Wysocki — 2016 Texas Super Lawyers

Michelle O’Neil and Michael D. Wysocki, Shareholders of O’Neil Wysocki, P.C., have been named to the 2016 Texas Super Lawyers List for family law. Only 5% of lawyers statewide are recognized. O’Neil was also named as one of the Top 50 Women Super Lawyers in Texas for all practice areas, Top 100 Texas Super Lawyers for all any practice areas, and one of Top 100 D/FW Super Lawyers for all practice areas, recognizing her as one of the best lawyers of any kind in the State of Texas. This is the 5th year of recognition for O’Neil and the 6th year of recognition for Wysocki.

Super Lawyers is one of the most prominent and respected rating services in the industry. Each year the organization’s patented selection process is used to identify the most accomplished and trusted legal counselors in every state and major region in the country.

The Super Lawyers selection process includes:

  • Nominations from peers or the Super Lawyers research team
  • Independent research on candidates by the Super Lawyers team
  • Peer evaluation by a blue ribbon panel of notable attorneys
  • Final selections based on these findings

Ultimately, the Super Lawyers lists represent a mere 5% of all licensed attorneys practicing in each state. Attorney O’Neil’s additional honors mean that Super Lawyers has determined she is among the best of the best lawyers in Texas.

For both Attorney O’Neil and Attorney Wysocki, this is not the first recognition from Super Lawyers. Attorney O’Neil has been chosen for the Texas Super Lawyers list each year since 2011 – five years straight – and has been named to the Top 50 Women Texas Super Lawyers, Top 100 Texas Super Lawyers, and Top 100 D/FW Super Lawyers lists for three years in a row.

Attorney Wysocki has received recognition from Texas Super Lawyers organization for six years, three on the Texas Rising Star list in family law by Texas Super Lawyers, and three additional years as a part of the Texas Super Lawyer list in family law. The Rising Star list only recognizes about 2.5% of young lawyers statewide.

These are not the only accolades for the O’Neil Wysocki firm. Attorney O’Neil has also been named among the Best Lawyers in America for 2016 and 2017. Attorneys Eric Navarrette, Ashley Russell, and Chrysandra Bowen have been named to the 2016 Texas Super Lawyers Rising Star in family law list, which is given to only about 2.5% of young lawyers in the state. (Note: Of the 2.5% of young lawyers recognized statewide this year, 3 work at our firm!) Navarrette has maintained this honor since 2013, Russell since 2011, and Bowen since 2015. Attorney Jere Hight has previously been named to the Texas Super Lawyers Rising Star in family law list as well.