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 May 2, 2011

The United States Supreme Court long ago decided that matters concerning the management of the family were best handled by the states and their courts rather than the federal judiciary. For that reason, it is fairly rare for domestic relations cases to be decided by the Supreme Court of the United States. When it comes to family matters, only when questions affecting the U.S. Constitution arise does it warrant the highest court in our country getting involved.

Last week, this rare occurrence did happen in two separate matters, both in the state of Washington. The Supreme Court heard argument in two cases: Camreta v. Greene and Alford v. Greene, 588 F.3d 1011 (9th Cir 2009).  Both were heard in that state’s federal court and both cases were then appealed to the U.S. Court of Appeals for the 9^th Circuit which covers the western United States. The U.S. Supreme Court decided that these cases warranted attention because there were important constitutional issues involved, 131 S. Ct. Reptr 456,457 (2010).

It is a commonly known fact that we all have freedom from unreasonable search and seizure by government personnel. This usually applies to police investigating what they believe to be a crime, but is applicable to any government personnel. In the late 1890s the United States also adopted the view that people have the right to privacy. In addition, the U.S. Supreme Court has consistently held that people have the primary right to raise children in accordance with their wishes and that government interference in family matters will be subject to the highest scrutiny.

The two cases argued last week involve government investigations into allegations that children were being abused by a parent. There are few subjects more problematic than family child abuse. This is due to several factors, one of which is the issue that children are usually unreliable witnesses. But as these two cases properly observe; they are usually the only witnesses where parental abuse is alleged. Another issue is that the parent who is not the subject of the allegations faces the worst dilemma a human being can endure. We may not love, or even like our spouse anymore, but it is rare that an attitude would develop toward that person that would allow for the thought to be entertained of a parent actually being capable of physically abusing their own flesh and blood.  

In the Greene case it seems investigators were contacted by the school of a seven year old child. The school had information suggesting the Father might have sexually abused the child. Before any warrant was obtained and without notifying either of the child’sparents that an investigation was underway, a law enforcement official and an employee from the county agency designated to investigate such allegations went to the child’s school to interview the child.

Although the child gave conflicting statements as to what occurred, as is often the case, the state prosecuted anyway. Ultimately, the Father was acquitted. At that time the mother sued the state for invading her child’s privacy and conducting an unreasonable search of her daughter without permission of either parent.

The question for the Court to decide is whether government officials have the right to interview your child without your permission, a warrant, court order or other exigent circumstances where it would be impossible to get those forms of permission. In this case, the individuals who did the interviews were state welfare officials and police officers. In theory, however, teachers, principals and guidance counselors are government officials, as well, so the decision could have a far wider impact than just the law enforcement community. In the second case, it was the child welfare authorities who questioned the child, not the police.

There are difficult questions associated with these types of scenarios.  If a child witnessed an accident or was the victim of a crime not committed by a parent is parental permission or a warrant required to interview the child? The child is not the same person as the parent. Is there a higher level of due process required because the parent is an alleged perpetrator?  

We live in an age when any parent could find themselves in a situation where a child gets angry as a result of an altercation with their parent and complains to school officials. The school officials are required to report to law enforcement anything that they reasonably believe constitutes abuse. It puts school personnel in a precarious position as young children, in particular, are highly impressionable and not the best reporters of facts.

These allegations are very, very serious and have both custodial and criminal implications that are quite far-reaching. If you find yourself in this position, seek independent advice from an attorney before responding to any allegation that you have done harm to a child; even if you regard the allegation as frivolous.

Hat tip to Mark Ashton for his March 9, 2011 post

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Some of you may have heard about the tragic suicide death of Debie Hackett recently.  Her family drama has been played out in the local media over the past few months regarding the litigation between Ms. Hackett and her former lesbian partner Ms. Ferris. 

Ms. Ferris is the biological parent of the child.  Ms. Hackett sued Ms. Ferris for court-ordered access to the child when their romantic relationship ended.  The trial court initially held that Ms. Hackett had "standing to sue" because she had "actual care, control, and possession" of the child for at least 6 months ending in not less than 90 days before filing the lawsuit.  The Dallas Court of Appeals upheld that ruling.  (See article from The Dallas Voice here.)

But, standing is not the end of the battle, but only the beginning in a suit between a parent and nonparent for court-ordered access to a child.  Once granted standing, the nonparent still has to overcome the constitutionally-protected presumption in favor of a parent's right to make parenting decisions without interference from anyone, including a former romantic partner.  To overcome this high hurdle, the nonparent must prove that the parent's decisions will result in "significant impairment to the child's physical health or emotional development".

In the Hackett v. Ferris case, a jury decided that Ms. Ferris, the parent, was a fit parent, precluding Ms. Hackett from seeking orders related to the child.  I am sure that Ms. Hackett was devastated by this ruling.

Ms. Hackett was, no doubt, bolstered by the judge's grant of standing letting her continue with her case.  But, that just set her up for greater disappointment when she ultimately failed to prevail.

Here's the op-ed piece that I wrote for The Dallas Voice today: 

Learning Lessons From a Tragedy

The death of Debie Hackett was a tragically shocking end to a family drama that has, to some extent, played out in the local Dallas media. Through her experience and even through her tragic death, she has provided an opportunity to educate many who are in similar situations. There seems to be quite a bit of misinformation about her family law case and the litigation that recently ended.

Many people live in families with children that they emotionally consider as “their children”. Knowledge of how the law applies to their relationship with the children in their lives gives power, so even in the midst of this tragedy there is something to be learned.

Texas law has a very specific definition of a “parent”. Texas Family Code defines a parent as:

·   the mother (biological);

·  a man presumed to be the father (because he was married to the mother when the child was born or at the time of conception);

·  a man legally determined to be the father;

·  a man who has been adjudicated to be the father by a court of competent jurisdiction;

·  a man who has acknowledged his paternity under applicable law; or,

·  an adoptive mother or father. 

 

No matter how much love, caring, or emotional bonding exists, if someone does not fall into one of these categories, then they are not a “parent” in the eyes of the Texas courts or legislature.

While a person may feel emotionally connected to a child, the law provides no status for a person who feels-like-a-parent. Even if a person is treated like a parent, or even considered a parent by the child, that person cannot be elevated to the legal status of a parent if she does not meet one of the statutory definitions.

So, you either are a “parent” under the law, entitled to the legal privileges and obligations of a parent, or you are not.

Parents have certain rights that are guaranteed under the United States Constitution as well as the laws of each state. The most fundamental of these rights is the right to make parenting decisions without questioning or interference from those outside the parenting relationship. In other words, as long as the parent makes decisions that are not harmful to the child, the parent has the sanctity to make decisions for the child. Only when a decision can bring harm to a child does the law provide a method of reviewing parental decision making.

The right to make parenting decisions includes the right to decide who the child can be around, spend the night with, and visit. 

This right is fundamental, like the freedom of speech or freedom of religion, and as a result is heavily protected by federal as well as state law, and highly regarded by most of our courts.

So, in Ms. Hackett’s situation, her former partner was the legal parent of the child and had the right to decide whether the child would associate with Ms. Hackett after their break-up. Only by proving that the former partner’s parenting decisions are harmful to the child in a court-at-law would Ms. Hackett have been able to have a court overrule the parent’s decision to exclude Ms. Hackett from the child’s life. The jury trial that Ms. Hackett and her former partner went through in December involved the question of the parent’s fitness in her decision-making. The trial was not about whether the parent versus Ms. Hackett should have custody, what time the child should spend with either of them, who should decide what school the child attends, or even an allocation of child support. 

The jury decided that the parent was a fit parent. That decision precluded Ms. Hackett from seeking any other orders regarding the child, such as the right to visitation over the parent’s objection.

Some believe that the law discriminated against Ms. Hackett because of the nature of their same-sex relationship. However, Ms. Hackett stood in the same position as a heterosexual person that does not meet the legal definition of a parent. The law applies equally to any person that is not a parent seeking to intervene in the parenting relationship.

For example, consider a heterosexual married couple where one member of the couple has a child from a prior relationship. When that couple breaks up, the partner who is not a parent would be in the same situation as Ms. Hackett, left to the parental decision-making of the parent to continue the relationship with the child. Barring proof that the parent is unfit – that her decisions as a parent are harmful to the child – the non-parent would have no right to interfere.

Grandparents often fall into this problem as well. Many grandparents assist in parenting their grandchildren yet cannot seek court ordered access to the grandchild absent proof of parental unfitness.

As a Dallas same-sex custody lawyer, I counsel many non-parents in situations like Ms. Hackett’s.  The most important piece of advice I give them is to adopt their partner’s child while the relationship is good and everyone is on the same page.  Adoption grants the legal status as a parent and the legal rights and constitutional protections that comes with it. This then allows — mandates — a relationship between the adoptive parent and the child after the romantic relationship with the other parent ends.  Without adoption, the law provides no relief from the high hurdle of the parental presumption over which a nonparent must cross to even have the chance of gaining court-ordered conservatorship, possession with and/or access to the child over the legal parent’s objection. 

The current state of Texas law draws no line regarding the gender of the parent or parents a child has. So, a child, by adoption, can have two moms or two dads, provided a judge finds such adoption to be in the child’s best interest. 

Michelle May O’Neil specializes in Texas family law cases and works specifically with gay parents regarding relationship and custody issues. She is the author of two books, All About Texas Law and Kids, published in 2010, and The Basics of Texas Divorce Law, published in 2011. Ms. O’Neil practices law with her firm O’Neil Attorneys in Dallas, Texas.

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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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Dallas Family Law attorney Michelle May O'Neil previewed her book All About Texas Law and Kids with her co-authors Bobbi Sheahan and Sharon Ramage at the Dallas Kids Expo on Saturday.  The audience submitted general questions which were answered by the authors based on the book. O'Neil provided copies of the book to give away to the first three audience members who asked questions.  Plano Children's Theater generously donated season tickets to give away for questioners.  O'Neil answered general questions about the law and children on topics such as child custody, child support, guardianship, grandparent rights, and age for marriage.  A portion of the Q&A is posted on youtube video and embedded below:

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As a Dallas divorce lawyer, I am often asked whether court's still presume that custody of a child should go to the mother as opposed to the father.  The short answer is no.  Courts are not permitted to consider the gender of the parent (or the child) in making decisions regarding custody.  Generally the best interests of the child are the primary considerations the court assesses in determining custody issues.  The best interests of the child are frequently referred to as the Holley factors because of the case they were set forth in.  See Holley v. Adams, 544 S.W.2d 367, 371-71 (Tex. 1976).  Since 1976 the best interest factors have been divided up into three broad factors: (1) the ability of the either parent to care for the child; (2) the ability to maintain a family relationship; and (3) parental fitness.

Historically, gender played a role in assessing parental fitness.  This role led to the development of the "tender years doctrine" which in essence stated a child should not be separated from his or her mother.  Early records of the tender years doctrine date back to the mid 1800's and needless to say there have been dramatic shifts in socio-political viewpoints since that time.  The trend towards moving away from the mommy presumption and tender years doctrine gradually made its way in to Texas Case law and eventually was codified in the Texas Family Code.  According to Section 153.003 of the Texas Family Code, the court cannot consider the marital status or gender of either parent in making decisions regarding custody.

This shift away from the tender years doctrine coincides with the shift towards parents sharing their rights and duties equally.  In fact, there is a possession schedule set forth in the Texas Family Code that applies in most cases (in the absence of a showing why it should not) which effectively gives parents equal rights, duties and almost possession periods of their children. 

Despite the shift away from the mommy presumption, there are some judges who retain an "old school" mentality and still believe that the child should remain with his or her mother.  This is where hiring an experienced divorce attorney is critical, because if your case happens to land in a conservative judge's court, then your attorney will have to clear the mommy presumption hurdle. 

In short, the tender years doctrine has been, for the most part, put to bed in Texas courts.  However, it still pays to know the judge's preferences your case is assigned to. 

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 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.

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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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As a Dallas divorce lawyer, I frequently have clients that come into my office wanting “sole custody.”  Custody is a term that means different things to different people.  In this series of blog posts, I’ll explain how “custody” is determined in Texas.  The first post in this series will define the words Texas courts use in determining custody issues. 

In Texas conservatorship is the term that equates with custody.  Chapter 153 of the Texas Family Code sets forth the framework for appointing individuals as conservators and granting rights of possession and access to a child. 

There are two types of conservators: managing and possessory.  Managing conservators are further divided into two sub-categories, sole and joint.  A sole managing conservator is a person that is granted exclusive rights to make decisions for the child.  A joint managing conservator is one of two people who share the rights and duties of a parent, even if the exclusive right to make certain decisions (for example, the place of the child’s primary residence) is awarded to only one person.  A possessory conservator is a person who is designated by the court as having a right to possession of a child under specified conditions, and who is authorized during their periods of possession to exercise certain rights of a parent.  A very common misconception regarding joint managing conservators is that each parent must have equal periods of possession.  Also, a possessory conservator can exercise his or her periods of possession to the exclusion of a managing conservator. 

Now that we have the basic definitions down, we’ll look at how a court determines the rights and duties of parents and the periods of visitation to the child.  From the get go, it’s important to understand that the best interests of the child is the most important factor the court looks at when deciding issues of conservatorship, possession and access.  To establish a child’s best interests, parents usually are required to present evidence showing who can better serve the child’s interests. 

Approximately 30 years ago, the Texas Supreme Court identified a non-exclusive list of factors the court will consider in determining what is in the child’s best interests.  These factors are commonly called the “Holly Factors” because of the name of the case they were identified in.  Generally, the Holly Factors fall into three categories: (1) caring for the child; (2) maintaining family relationships; and (3) parenting skills. 

In the next post, I’ll write about the specific items courts consider in assessing the three main Holly Factors.

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Stars and Stripes reports that family law attorneys are seeing an increase in cases in which troops finishing combat rotations return home to angry custody battles and unsympathetic judges, who see long tours overseas as an obstacle to providing a stable home for children.  Members of Congress have been fighting for years for better protection of military parents who are deployed and again this summer passed legislation to prohibit courts from making custody changes while a servicemember is overseas.

Hat tip to Eric Beal of the Beal Law Firm for pointing to this article.

This year, the Texas Legislature passed new laws affecting military parents. Senate Bill 279 became effective September 1, 2009. Read a copy of the enrolled bill here.  It provides:

• A parent who is deployed a significant distance from the child such that his or her conservatorship will be affected, the parent may seek a temporary modification of the court's orders during the period of deployment.
• Temporary orders granted under this section terminate at the end of the deployment.
• If the conservator with the exclusive right to designate the primary residence of the child is ordered to military deployment, the court may render a temporary order to appoint a designated person to exercise the exclusive right to designate the primary residence of the child during the military deployment, military mobilization, or temporary military duty in the following order of preference:
  (1) the conservator who does not have the exclusive right to designate the primary residence of the child;
  (2) if appointing the conservator described by Subdivision (1) is not in the child's best interest, a designated person chosen by the conservator with the exclusive right to designate the primary residence of the child; or
  (3) if appointing the conservator described by Subdivision (1) or the person chosen under Subdivision (2) is not in the child's best interest, another person chosen by the court.
• For a parent without the exclusive right to designate the primary residence of the child is ordered to military deployment, the court may render a temporary order to appoint a designated person to exercise the right of possession of and access to the child in place of the deployed parent.  The periods of possession will be the same as the parent had under the court's orders. 
• Such orders must be in the best interest of the child, obviously.
• Such motion for temporary modification may be eligible for an expedited hearing if it is required due to the military deployment.
• Not later than the 90th day after the date a military parent without the exclusive right to designate the primary residence of the child concludes the parent's military deployment, the parent may petition the court to:
  (1) compute the periods of possession of or access to the child to which the parent would have otherwise been entitled during the conservator's deployment; and
  (2) award the parent additional periods of possession of or access to the child to compensate for the periods described by Subdivision (1).
   

Read the Stars and Stripes article after the jump....

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Pet Custody Dispute Leads to Mounting Legal Bills

Legal bills in a custody dispute involving a couple’s pet dog have topped $40,000, according to media reports. The mounting attorneys’ fees come after a landmark decision by a Pennsylvania appellate court that held a trial judge should have weighed the subjective value of the pug in determining custody and compensation for the couple. An attorney for one of the parties conceded that the protracted dispute could be a slippery slope for the legal community. Martha Neil, American Bar Association Journal 07/30/2009
 

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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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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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Recently I came across a blog discussing tips to surviving a divorce.  Interestingly, the blog wasn't written by an attorney but the divorce survival tips all come back to one thing - the importance of hiring a good lawyer.  The blog has some good tips that apply to a divorce in Dallas Texas which I will outline in the order they were presented.

1. Hire a good divorce lawyer.  Hiring an attorney that is compatible with your personality is absolutely critical in protecting your rights and best interests during such a troubling time.  The right attorney serves not only as a mediator but also as an advocate of your interests.
2. Keep written records of everything.  Keeping a journal of who said what and when often shows which of the parties is more organized.  Also, written records of conversations are helpful during the division of community property.
3. Keep your cool.  Although this is a stressful time, keep in mind that everything you say or do is going to be looked at under a microscope.  If you lose your cool, you can stand to lose a lot.  Not only in terms of property, but also in custody determinations. 
4. Read everything.  Obviously, a good attorney will ensure that you understand everything relating to the division of property and custody issues.  However, never assume that just because your attorney reads everything that you are not responsible for doing the same.
5. No guilt trips.  This ties in closely with number three.  Remember, nobody likes a sneaky, passive aggressive person.  Communicate your concerns to your attorney in a direct manner.  Address any problems as they arise - not after everything has built up and is coming to a head.
6. Never use children as leverage.  All to often we see clients who put their interests (i.e. revenge) before those of their kids.  Remember that the divorce is not their fault, and that you have absolutely nothing to gain (but very much to lose) by using your children as a bargaining tool.

Although these may seem like common sense, it is easy to forget them during a divorce proceeding.  A good divorce attorney who clicks with your personality will help you remember them.

Our firm would like to help you with your divorce.  We represent people getting a divorce in Dallas, Collin, Denton, and Tarrant Counties in Texas.

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