In a previous post, I have written about what a modification is and what it does. But recently a reader asked me to write about how the process works and what is required to change primary custody. Changing primary custody is not something that the courts will do lightly and it requires clearing certain hurdles. This week, we’ll explore the essential steps and considerations involved in pursuing this type of modification action.

1. Material and Substantial Change in Circumstances:

First and foremost, to modify conservatorship the Texas Family Code requires a showing of a material and substantial change in circumstances of the child, a conservator, or other party affected by the order. What qualifies as a material and substantial change in circumstances varies and depends on the facts of the case. This change could include a parent’s relocation, a change in the child’s needs, or a shift in the parent’s ability to provide a stable environment, or the current primary conservator causing significant impairment to the child.

2. Documentation:

As with any case documentation is a must. Anyone can take the witness stand and say things are happening that are impairing their child. But if they cannot provide evidence to prove it, the likelihood of success diminishes rapidly. Photos, text messages, audio, and video recordings will all go a long way in proving your case to the Court.

3. Witnesses

Another way to help establish your case is to have a solid list of witnesses. You want people who will speak highly of you as a parent and/or people who will speak on the negative aspects of the other party. Additionally there may be situations where you may need expert testimony such as the child’s doctor, a psychiatrist, a police officer, or cps worker. The better the testimony of your witnesses the better your chances of success.

4. Best Interests of the Child:

As with any case involving a child, the primary factor the court will consider is the best interests of the child. This is why documentation and good testimony are so important. You will need to put on a good enough case to convince the judge to flip the previous ruling. Your case for a modification must convincingly demonstrate that the proposed change will better serve the child’s physical, emotional, and developmental needs. This could include evidence of a more stable living environment, improved quality of life for the child, or enhanced parental involvement.

5. Filing a Suit for Modification:

After you have your evidence documented and your witnesses ready to go, you will need to initiate the process of changing primary custody. You will be best served in hiring an experienced family law attorney who to draft and file a petition for modification with the appropriate family court. While it is possible to represent yourself in these matters, it is highly inadvisable. The vast majority of people do not understand each element of putting on a case, and choosing to proceed pro se greatly reduces the chance of success.

Getting the suit underway is just the beginning of the process. Next week we will discuss temporary orders, discovery, and everything else that comes after the modification has begun.

The holiday season is a time for joy, celebration, and creating lasting memories with loved ones. However, for families navigating the complexities of divorce or separation, the holidays can pose unique challenges, especially when it comes to determining possession schedules. Under the Texas Family Code, specific guidelines govern holiday possession schedules to ensure a fair and consistent approach for families in transition.

The Basics

The Texas Family Code outlines a standard possession order that addresses the possession and access rights of noncustodial parents. When it comes to holidays, section 153.314 of the Texas Family Code specifically includes provisions for both the managing conservator (the primary parent) and the possessory conservator (the non-primary parent). The holidays specifically named in this section are Christmas, Thanksgiving, the child’s birthday, Father’s Day, and Mother’s day.

Thanksgiving Break

Under the code, Thanksgiving break is given to the non-primary parent on odd-numbered years beginning at 6 p.m. the day the child is dismissed from school before Thanksgiving and ending at 6 p.m. on the following Sunday. Inversely, on even-numbered years the primary receives this possession time.

Christmas Break

Christmas possession is similar to Thanksgiving possession but is flipped. Meaning that the parent who receives Thanksgiving Day will not receive Christmas in the same year. However unlike Thanksgiving break, the Christmas possession schedule is divided into two parts due to the length of the break. In even-numbered years, the non-primary parent has possession from the day school is dismissed for the holiday until noon on December 28th. The primary parent has possession from noon on December 28th, until school resumes after the break. Also like Thanksgiving, the parent who actually receives Christmas flips depending on if it is an odd or even-numbered year.

Child’s Birthday

For the child’s birthday the family code states that the parent that is not entitled to possession of the child on their birthday shall have possession of the child starting at 6 p.m. and ending at 8 p.m. the same day. This requires that the parent pick up the child from the residence of the parent who is entitled to the possession as well as return them.

Father’s Day and Mother’s Day

Father’s Day and Mother’s work very much how you would expect them to. Father’s shall have possession of the child beginning at 6 p.m. on the Friday before Father’s Day until Father’s Day at 6 p.m. The same goes for mothers on Mother’s Day weekend.

While the Texas Family Code provides a framework for holiday possession schedules, it’s important for parents to maintain open communication and be flexible when necessary. Unforeseen circumstances may arise, and a cooperative attitude can go a long way in ensuring a positive holiday experience for your child.

There are times when a parent actively choose to disregard a court order. This is particularly problematic when the order being disregarded is one dealing with the right to possession and access of children. The usual scenario is that Parent B will pick up a child for their scheduled time of possession and simply won’t bring the child back to Parent A when that period ends. After multiple days or even weeks of not seeing their child this can cause panic for the Parent A. However, there is a legal remedy for this situation, a writ of habeas corpus.

The writ of habeas corpus, derived from Latin meaning “produce the body,” is a legal order that requires an individual to come to the court with the child to determine who has the right of possession to the child.

The process begins with the filing of a petition for writ of habeas corpus in the appropriate court. This petition should outline the specific facts and circumstances justifying the need for immediate intervention, such as a violation of an existing possession and access order.

Next the petition and writ need to be presented to a judge. Should it be established that the superior right of possession is being infringed, the judge will sign the writ and set a hearing to determine who is supposed to have the child. Once the hearing is set, both parties will have the opportunity to present evidence and arguments.

During the hearing there are four main elements that need to be proven. Firstly, there is a court order giving a parent the superior right of possession. Second, the child is being illegally kept from the parent with the superior right. Third, the parent with a superior right has not voluntarily given up possession of the child for six months before filing the petition for writ. And fourth, there is no serious question about the child’s welfare. Should this be done properly the court will compel the withholding parent to turn the child over.

The division of real estate is just one more thing to be considered in a divorce. If that divorce is highly contested it can be a challenging aspect to navigate as both parties want the property and will fight for it tooth and nail. On the other hand, in an amicable divorce neither party may want the property and aren’t sure what they want to do with it. In this blog post, we will discuss the potential options for dealing with community real estate during a divorce.

Community Property

As always, remember that Texas is a community property state. Meaning that in most cases, any property acquired during the marriage is considered community property and is subject to division between the spouses in a divorce. This includes real estate, whether it’s the family home, vacation properties, or investment properties. Even if the property was bought with just your checking account, if it was bought during the marriage, that home is presumed community property.

Options for Real Estate Division

When it comes to real estate in a divorce, several options are available to the divorcing spouses:

  • Sell the Property: One of the most straightforward options is to sell the property and divide the proceeds between the spouses. This approach can be particularly beneficial if neither spouse wants to keep the property or if selling is the most financially advantageous option. Of course, in a contentious divorce, then the fight will become about how much each spouse receives. In this situation, the judge will likely need to make the final decision.
  • Buyout: One spouse may choose to buy out the other spouse’s share of the property. This often involves refinancing the mortgage or making an arrangement where the buying spouse compensates the other for their share of the property’s equity. How much you’ll have to pay the other spouse to buy them out depends on several factors. A few of these factors are: how much the home is worth, how much is still left on the mortgage, and how much each spouse put towards the purchase of the home.
  • Co-Ownership: In some cases, the divorcing spouses may agree to continue co-owning the property after the divorce. This solution can arise in the event of a nesting agreement or if the property is a vacation home that isn’t occupied year round.
  • Deferred Sale: In certain situations, the court may order a deferred sale, allowing one spouse to stay in the property for a specified period (usually until the youngest child reaches a certain age) before selling it and dividing the proceeds.

There are many unique ways in which real estate can be dealt with in a divorce. Because many have their wealth tied up in equity due to real property, it is crucial that you have an attorney on your side to make sure you aren’t signing away more than you should in your divorce. It is never a good idea to let thousands if not millions of dollars go because you want to avoid a fight. Even if the divorce is amicable, at the very least an attorney should be retained to review the final decree, and make sure everything is as it should be.

Domestic violence is a pervasive issue that can have a profound impact on family law cases in Texas. In family law, the welfare and safety of the family members, particularly children, are paramount concerns. Understanding the ramifications of domestic violence in such cases is crucial for both attorneys and individuals involved. This week we will discuss the implications of domestic violence on family law cases in Texas.

First and foremost, the safety and well-being of victims take precedence in family law cases involving domestic violence. If you find yourself in a situation of domestic violence, document everything. Call the police, take photos, record audio, do whatever you have to do to preserve evidence of the abuse you have suffered. Next file a protective order. Provided you have the evidence to support your claim, courts may issue temporary restraining orders or protective orders to provide immediate relief from an abusive environment. These orders can prohibit the abusive party from contacting or approaching the victim and, in more severe cases, result in the removal of the perpetrator from the family home.

Courts take domestic violence in cases with children very seriously and will not hesitate to severely limit an abusers ability to be in the children’s lives. As with a protective order, it is imperative that you have adequate evidence to show the abuse has occurred, and has occurred either to or in front of the children. If you can show the other parent has a history of domestic violence, the court may order that they be limited to supervised visitation to ensure the child’s safety.

In divorce cases that don’t involve children, domestic violence will still have an effect. If there is a finding of domestic violence in a divorce case the court can grant spousal support without the need for the marriage to have lasted 10 years. The court may also award a larger share of the marital property to the victim, especially if the abuse has limited the victim’s earning capacity. Domestic violence has far-reaching implications on family law cases in Texas. The legal system is committed to protecting victims and ensuring the safety and well-being of all family members involved. If you or someone you know is dealing with domestic violence in a family law context, it is essential to seek legal counsel to navigate the complex legal process and secure the necessary protections.

There are times in a case when one parent doesn’t necessarily have it together. This can take many forms; whether they are struggling with addiction, involved with an abusive partner, or currently transient. In one way or another their current circumstances leave them unfit to have the children overnight or for more than a couple hours. However, you may not want to cut the children off from their other parent completely, but you understandably don’t feel comfortable leaving the children with them. So how do you navigate this situation? By implementing a step-up possession schedule.

What is a Step-Up Possession Schedule?

A step-up possession schedule, also known as a “tiered” or “progressive” schedule, is a child custody arrangement that can change as the child gets older and/or other parent meets certain requirements. They are particularly useful for when the other parent is working to clean up their act but needs time to do so. They are also useful for addressing the changing parental needs of children as they grow older.

How Do Step-Up Possession Schedules Work?

Like a standard possession schedule, a step-up possession schedule will be detailed in your court orders. The levels they describe are varied, as they depend on the facts of the case. For example lets say Parent A and Parent B are getting divorced. Parent B is an alcoholic. They love their kids and have never done anything to intentionally hurt them, but they are constantly drinking to a point that it could endanger the children. Parent B recognizes they have a problem and begins taking steps to get help and rectify it. The parents go to mediation and Parent A recognizes that Parent B is trying to fix their issues and agrees to a step-up possession schedule. In this scenario that schedule may look something like this:

  1. Supervised Possession: Parent B shall have one hour of supervised possession each week until Parent B completes an Alcoholics Anonymous program and passes a breathalyzer tests four times a day for three months.
  2. Unsupervised Saturday Possession: After completing Step 1, Parent B shall have unsupervised possession of the children every 1st, 3rd, and 5th Saturday from 12 pm to 8 pm provided that they pass a breathalyzer test four times a day for three months. If at anytime Parent B fails a test, Parent B will revert to step one.
  3. Non-Expanded Standard Possession: After completing Step 2, Parent B shall have possession of the children every 1st, 3rd, and 5th, Friday at 6 pm until to following Sunday at 6 pm. Parent B shall also have possession every Thursday from 6pm until 8pm. Parent B must pass a breathalyzer test four times a day when they have possession of the children for three months. If at anytime Parent B fails a test, Parent B will revert to step two.
  4. Expanded Standard Possession: After completing Step 3, shall have possession of the children every 1st, 3rd, and 5th, Friday from the time school releases until the following Monday when school resumes. Parent B shall also have possession every Thursday from the time school releases until the following Friday when school resumes. Parent B must pass a breathalyzer test four times a day when they have possession of the children. If at anytime Parent B fails a test, Parent B will revert to step three.

Now it is important to note that this is just a quick example of how a step-up schedule could work in this scenario. The provisions in a real order would be much more detailed and can be more or less restrictive to Parent B depending on the facts of the case. The takeaway is that each level of the schedule requires Parent B to stay on the straight and narrow path to gain more time with their children. It gives them the chance to clean up their act and be a substantial part of their children’s lives or stay exactly how they are risk losing what little time they have.

A couple weeks ago, we discussed five common pitfalls to avoid in a family law case. This week we’ll discuss five more mistakes that you will want to avoid should you find yourself embroiled in a family suit.

1. Venting on Social Media/Text Messages: I know, I know. I keep hammering this home but that is because it is so very important. If there is one thing you get from these posts, know that writings are evidence. I understand the need to vent pent up frustrations, but do it by talking to someone you can trust, not by posting it all over social media or by texting the opposing party. These writings, even if they were meant to be taken as a joke can and will be used against you. If you must use social media during your case, think not once but three times before you post.

2. Rushing Settlements: This is a mistake that is more likely to occur when a case has been pending for a long time. In the desire to conclude the case quickly or just get it over with, sometimes clients will want to settle for less than they deserve. Contested legal battles take time from several months to several years. I know the process can be draining in multiple ways but it’s important to take the time to negotiate a fair agreement, especially when it comes to property division and child custody arrangements.

3. Neglecting Child’s Best Interests: When children are involved, their best interests should always be the top priority. I’ve heard clients say “that’s not fair to me.” more times than I can count at this point. The truth of the matter is the Court doesn’t care about what’s fair to parents. If they did a 50/50 possession schedule would be the norm. The Court will always do what’s in the best interest of the child, which means you need to think that way too. Don’t use the kids as pawns or involve them in the details of the dispute. Instead, focus on their well-being and emotional stability. Your goal isn’t to punish the other parent, but to put the children in the best situation possible.

4. Disregarding Alternative Dispute Resolution: Mediation and collaborative law can be effective alternatives to litigation. Failing to explore these options might result in a lengthy and costly court battle. If you are in a situation where you believe that you can come to a settlement but you need a little help to get there, consider these options.

5. Forgetting About Post-Divorce Modifications: Life circumstances change, and post-divorce modifications may become necessary. Don’t overlook the possibility of modifying child custody, support, or visitation agreements when necessary. Though your decree or order says final, it is not necessarily set in stone. Do everything you can to keep the peace and cordially co-parent after divorce, or else you may find yourself right back in court.

In Texas family law, few legal actions are as serious and consequential as the termination of parental rights. Termination is the process of permanently severing the legal relationship between a parent and their child. Courts only grant such orders in the most extreme circumstances, prioritizing the best interests and safety of the child above all else.

Termination of parental rights can occur voluntarily or involuntarily. Involuntary termination of parental rights can only be done by an order of the court. In the Texas Family Code there are 25 possible grounds for the involuntary termination of parental rights. These typically arises in situations of abuse, neglect, abandonment, incarceration, or extreme endangerment to the child’s physical or emotional well-being. When one of these grounds has been met, the party seeking the involuntary termination must file a petition to the court. Once the process has started it must be proven by clear and convincing evidence that one of the grounds has been satisfied and that termination is in the best interest of the children.

Parents can also voluntarily terminate their rights. This typically happens when a parent recognizes that they cannot provide a safe and stable environment for the child. Like involuntary termination it can only be done by a court order, the difference is no additional grounds are needed. It is usually done by filing a signed affidavit of voluntary relinquishment of parental rights. But much like involuntary termination the court will carefully examine the facts of the case to ensure that the termination is in the child’s best interest. The court will also want to be certain that the decision is free from coercion or duress.

Like in every other matter involving the parent-child relationship, the child’s best interests serve as the guiding principle. The court considers factors such as the child’s safety, physical and emotional needs, the stability of the proposed home, and the parent’s ability and willingness to provide for the child’s well-being. Should the court find that whatever reason termination would be detrimental for the children involved, the termination will not be granted regardless of if it is involuntary or voluntary.

And of course, the most important thing to consider when it comes to termination is that when parental rights are terminated, the parent loses all legal rights and responsibilities for the child. This includes the right to visitation and decision-making authority, not just the financial support obligations.

Navigating the complexities of family law in Texas can be challenging, emotionally taxing, and legally intricate. However, for the sake of your case and at times your children it is imperative that you think through everything you do. There are situations where just one mistake can leave your case dead in the water. This week I want to touch on five of these potential mistakes and how best to avoid them.

1. Not Hiring an Attorney: While sitting in the gallery of multiple family law courts, I’ve seen my fair share of pro se litigants. Unless it is something extremely simple, it never fails that they eventually anger the judge and/or fumble their case. It’s usually a mixture of not understanding the law, telling the judge half-truths, and simply not knowing when to stop talking. The practice of law is very nuanced, this is why it takes so much dedication and preparation to become an attorney. I never give anyone the advice to represent themselves, because it can lead to a horrendous outcome.

2. Allowing Emotions to Rule: As I’ve said before, family law matters are by nature emotionally charged situations. Hurt, anger, resentment, and sadness all come to the surface, but it is crucial not to let these emotions guide your decision making. I’ve seen situations where a party is so angry and wanting to punish the other side that they refuse to settle a case, only to have everything stripped away from them at final trial.

3. Failing to Document Your Case: I’ve lost track of how many times I’ve spoken with clients who will tell me “My ex said X” or “My husband did Y” but when I ask if they have any documents to help support their claims the answer is no. It is important to keep records of all communications, financial transactions, and interactions related to your case. These documents can be invaluable evidence in court and help you build a strong case. Without documentation it becomes much harder for your attorney to properly try your case.

4. Ignoring Court Orders: This should go without saying, but do not ignore direct orders of the court. While there are times where the court orders may seem just flat out wrong, that does not mean you can ignore them. There are proper legal channels to deal with these situations, but if you simply don’t do what the court orders you to do, you will find yourself in contempt and possibly jail.

5. Withholding Information From Your Attorney: I know I probably sound like a broken record at this point, but this is so very crucial. Your attorney is not there to judge you, the judge is. Though you may not want to tell your bad facts, if the other side knows about it those facts are coming out in open court anyway. It is best to give your attorney a heads up so that they can properly plan for how to deal with these bad facts and disarm the other sides argument.

I’ve started to notice a theme with some of my clients. They will give me a call or send an email with a question but will preface it by saying “This is probably a stupid question but…” or “Sorry to bug you, I know you’re busy, but I have kind of a stupid question”. And without fail the question they ask is completely valid.  Just because the answer may be obvious to an experienced family law attorney, does not mean it will be obvious to the everyday person. Though attorneys spend a good amount of time asking questions, we are also here to answer the questions of our clients. This week I’m going to share 10 of the “stupid questions” I’ve received and their answers just in case you have ever wondered about them yourself.

Question #1. Do I have to pay my child support through the Office of the Attorney General?

Yes. Under section 154.004 of the Texas Family Code, payments of child support, medical support, and dental support must be paid through the state disbursement unit.

Question #2. Do I have to pay child support until the children are 18?

It depends. While parties can agree to no child support or to cancel child support under certain circumstances, the ultimate decision lies with the Court. According to section 154.001 of the Texas Family Code the court may order either or both parents to support the child until the child is 18 years of age or until graduation from high school, whichever occurs later. However, if the child is emancipated before the age of 18, that will also end the requirement of child support.

Question #3. During the divorce, can I empty the joint bank account and stop my spouse from using the credit cards?

No. The exact rules that govern this question depend on the county your case is in. But in general you cannot liquidate your accounts or cut off your spouses access to community funds.

Question #4. If there are no orders for possession and access, can I file an enforcement/writ of habeas corpus?

No. Without an order signed by the court there is nothing that can be enforced. The same is true for a writ of habeas corpus. This is because without a court order establishing a possession schedule, neither parent has a superior right to the children. Instead the party who is having their possession withheld, will need to file the appropriate petition to get a court order in place.

Question #5. If possession is withheld from me, do I still need to pay child support?

Yes. In an order affecting the parent-child relationship, provisions on child support and possession and access are two different parts of the order. Just because the other parent is in violation of the possession and access provisions, does not mean you can violate the child support provisions.

Question #6. If I am the parent with the right to designate where my children live, can I move wherever I want?

It depends. If there is no geographical restriction in your orders, you are free to move. However, if there is you will have to stay in the designated geographic area. Some orders contain provisions that lift geographic restrictions. This lift usually occurs when the other parent leaves the restricted area first, leaving the primary parent free to move wherever.

Question #7. Since we have separate bank accounts is all of the money in each account separate property?

No. Even though the accounts are separate, money earned during the marriage will be considered community property under section 3.002 of the Texas Family Code. That being said, any amount of money in the accounts prior to the marriage will be considered separate.

Question #8. I inherited a large sum of money during the marriage, is that my separate property?

Yes. Under section 3.001(2) of the Texas Family Code property that a spouse acquires during the marriage by gift, devise, or descent is considered separate property.

Question #9. May I go and speak with/write a letter to the judge about my case?

No. This would be considered ex parte communication, and it is not permitted under the Texas Code of Judicial Conduct. This rule is in place to preserve the impartial nature of the bench.

Question #10. Does the judge decide anything in a jury trial?

Yes. Though it may seem like your fate is in the hands of the jury, there are certain things they cannot decide in a family law case. For example, in a case regarding children the jury can decide the issue of conservatorship, but they cannot decide possession and access or child support. In a divorce case the jury can decide what is considered community property and how much it is worth, but it is the judge who ultimately decides how that property is split.

Remember there are no stupid questions. Asking questions no matter how obvious they may seem to someone else, is how we learn.