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 July 25, 2011

Like the gay rights ("Marriage Equality") movement, black civil rights movement, and feminist movement, the Fathers' Rights movement is grounded in constitutional rights and imperatives. It has grown out of the very real changes in men's traditional roles in Western society, and the current generation's more egalitarian attitude towards shared parenting, which has resulted in gender neutral custody laws in virtually every state of the United States. Despite the changing laws on the books, there is still a perception that there is a gender bias in family law, and that fathers are discriminated against in custody decisions.

As family law attorneys in Dallas, TX, we regularly see custody disputes first hand. Although we represent mothers and fathers in equal number, we are no longer surprised when fathers are awarded custody rights. Sole custody agreements are a vanishing breed in the family law practice. Today, most fathers we meet with are seeking at least some form of joint custody, whether it is decision making or shared parenting.

A semi-typical case where a change of custody to the father may happen could be when a teenager declares that he/she'd rather live with Dad. (Those cases are usually resolved pretty quickly -- in most courtrooms, teenagers get what they want.) Judges, law guardians, and forensic psychologists are more enlightened these days about the rights of fathers, and the rights of children to be raised by their fathers. The fact is that fathers who are active and involved in raising their children are almost always given the opportunity to continue that role post divorce.

The value of fathers cannot be denied. But neither can the economic incentives that play a major role in custody disputes. For every father that has a good faith motivation for seeking primary custody (he is more bonded to the children, or the mother is mentally ill or drug addicted), there is a father who hasn't seen his children in months but declares upon being served with divorce papers that he should have custody. After all, he can do as good a job as the mother, and so why shouldn't he receive child support?

Recently, Jacqueline Harounian, Partner at The Law Firm of Wisselman, Harounian & Associates, did a radio program about fathers' rights. Many of the callers were men who felt victimized by high child support payments, and harsh child support enforcement measures, including wage garnishments, and incarceration. While the Family Court can grant relief in limited cases, the truth is that the government is unyielding and unsympathetic to so called "deadbeat dads" who owe child support. The sad reality is that many of these fathers do not even have a relationship with their children. Statistics show a strong correlation between active and involved fathers and those who willingly pay child support. (It must be mentioned that the system is just as punitive to mothers who owe child support, and more and more, mothers are being jailed for contempt for violating custody orders.)

Advice to those fathers who are concerned about child support? If you are seeking financial relief from your child support obligations due to a change of circumstances (such as job loss, or illness) run -- don't walk -- to Family Court. Do not let arrears accumulate, because there is very little that can be done to address it retroactively. But more importantly, be an active and involved father for your children. Children need mothers and fathers. They need financial and emotional support from both parents. Raising children costs money --- lots of it. But the non-monetary rewards to both children and their fathers are incalculable.

Hat tip to Jacqueline Harounian for her May 13, 2011 post                                                                                                                                                                                           

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Dallas Family Law attorney Michelle May O'Neil discussed a few common misconceptions about Texas Family Law in her presentation at the Dallas Kids Expo featuring her book All About Texas Law and Kids. 

Misconception #1:  Children over age 12 can choose who they want to live with (who their conservator will be after a divorce or modification in Texas).  False!  (See the video below for the true state of the law.)

Misconception #2:  Joint custody means equal time for both parents with the kids.  False!  (See the video below for the true state of the law.)

Misconception #3: The age when a child can get married.  (See the video below for the true state of the law.)

See the youtube video here:  Michelle May O'Neil discusses misconceptions about Texas family law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

-- MMO

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See the text of the bill by clicking here.

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

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

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

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

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

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A client referred me to the website www.colage.org as a resource for LGBT parents.  COLAGE is a national movement of children, youth, and adults with one or more lesbian, gay, bisexual, transgender and/or queer (LGBTQ) parents. I found the website very insightful and wanted to share it with our readers.  Check out this custody resource sheet called Protecting Families: Standards for Child Custody in Same-Sex Relationships.  Also, check out this suggested reading list for LGBT parents.  Issues involving same-sex couples, and especially same-sex couples with children, are increasing in the Dallas, Texas area.  These can be invaluable to anyone with questions about their rights. 

Also see this article in the Dallas Voice about one of my cases: Lesbian Moms in Custody fight.  This case is currently pending in the Dallas Court of Appeals.  Hopefully when it is decided, it will provide additional guidance as to the rights of same-sex partners who decide to have a child.

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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.
 

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