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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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                                                                                                                                                                                           

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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." 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Thanks to Bruce Bain of Tyler for the referral to this article.  Lesson to be learned here for lawyers and litigants on Facebook... don't mention anything specific about any of your cases online.  Facebook is no different than a party, just a cyberspace social situation.  You wouldn't discuss the specifics of a case with a judge at a party.  Why would you post it on Facebook???

Judge Reprimanded for Friending Lawyer and Googling Litigant

A North Carolina judge has been reprimanded for “friending” a lawyer in a pending case, posting and reading messages about the litigation, and accessing the website of the opposing party.

Judge B. Carlton Terry Jr. and lawyer Charles Shieck both posted messages about the child custody and support case heard last September, the Lexington Dispatch reports. Terry also accessed the website of the opposing litigant and cited a poem she had posted there, according to the April 1 public reprimand (PDF) by the North Carolina Judicial Standards Commission.

The opinion says Terry and Shieck first discussed Facebook in chambers in the presence of the opposing lawyer in the case, Jessie Conley, who said she didn’t know what Facebook was and didn’t have time for it. After the discussion, Terry and Shieck friended each other. Shieck later posted a Facebook reference to the issue of whether his client had had an affair, saying “How do I prove a negative?” according to the opinion. Shieck also wrote, “I have a wise judge.”

Terry told Conley about Shieck’s posts the day after he read them. The same day during court proceedings he referenced the poem he found and posted a Facebook message that the case was in its last day of trial. After the hearing concluded, Terry disclosed to both parties that he had visited the website of Conley’s client, where he found the poem, and then disqualified himself at the request of Conley.

Terry told investigators the poem had suggested that Conley’s client was not as bitter as he first thought and had given him hope for the litigants’ children. He also cooperated in the investigation, the opinion says.

The opinion says the ex parte communications and the independent gathering of information indicated a disregard of the principles of judicial conduct.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A client asks, I’ve maintained a relationship with my former partner’s child after our relationship ended, but I’m afraid that she’s going to cut me off. Is there anyway I can sue to keep the relationship I have with the child even though I’m not the biological parent?

I have four cases in my office right now pending in Dallas County with this exact issue. The Texas Family Code allows a lawsuit to be filed by a person who has had “actual care, control, and possession” of a child for at least 6 months ending not less than 90 days prior to the lawsuit being filed. There is much discussion going on in the court system right now about what constitutes “actual care, control and possession”. It is clear that “possession” does not mean uninterrupted periods, and does include periodic, alternating periods of possession. The current state of the law is unclear as to the meaning of “control” and there is much debate among judges as to what it means.

The law requires 6 months of possession, but it is unclear whether it means 6 months between the first period of “actual care, control and possession” and the last period, or whether the total of the periods of possession by the non-parent must aggregate (add up) to a total of 180 days. Regardless, the last possession period must not be less than 90-days prior to the day the lawsuit is filed. This means that a person who wants to solidify the relationship through a court order must not delay in filing suit.

I’ve had several clients come in with these problems, and each one delayed in seeking legal help. If you have a relationship with the child of a former partner, please do not delay in seeking advice from a lawyer about your situation. Consider confirming your relationship in a court order while the relationship with the other partner is good. If you have any questions about your status, please schedule a private, confidential consultation today.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link