Happy New Year everyone! Now that the holidays have passed we are back to your regularly scheduled programing. This week we’re going to zoom out a bit and look at one of the most basic requirements for your family law case, your participation. No matter what kind of case you have, it cannot succeed without you.

When you hire an attorney, you are hiring an expert in their field to handle your case so you don’t have to. However, that does not mean you can be completely hands off. While there are deadlines that are up to your attorney alone to meet, there are those that cannot be met without action on your part. For example, if the other side serves you with discovery responses must be given within 30 days. It is up to your attorney to meet this deadline, but they cannot do so if you don’t provide them with the responsive documents to production requests, or the answers to interrogatories.

Similarly, if you are involved in a divorce, regardless of if it’s amicable or contested, you will need to provide your attorney with an inventory of the community and separate property. This is needed to draft the divorce decree. If you don’t provide them with this information, they won’t be able to properly draft your decree because certain property may be left unaccounted.

Additionally, you will need to reach out to people who you feel will make good witnesses to your case and provide their information to your attorney. A specifically tailored examination for your witnesses cannot be prepared if your attorney is unable to get in contact with them. Another way to help with the process, is to give a short statement to your attorney that says who the witness is, and how they will be beneficial to your case.

You will also need to make sure that you stay in communication with your attorney. It can be easy at times to let an email or voicemail slip through the cracks. But odds are if your attorney is reaching out to you, they need something from you. It can be something as simple as clarification of a specific piece of evidence, or something as important as ensuring that a court order is followed. Keeping open lines of communication and staying responsive is crucial to make sure that no deadlines get missed, and that you have the strongest case possible.

Lastly, you need to make sure that you continue to provide your attorney with updated exhibits as your case progresses. Do not wait until right before trial to send over additional exhibits. This does not give you attorney enough time to review and supplement them before the relevant deadlines. Instead, when something becomes available send it then. Even if you aren’t sure whether or not it is relevant, send it over for your attorney to decide.

In conclusion, if you don’t take an active part in your case, you are setting yourself up to fail. I’m not saying you need to be in communication with your attorney every hour of the day or flood them with 10,000 pages of texts between you and the other party, because that could also potentially harm your case. But, you do need to be ready, willing, and able to do what your attorney needs you to do, and to get them what they ask from you.

Let’s face it, co-parenting can at times be very challenging. Sometimes two people just shouldn’t be involved with each other at all but have to be because they share a child. Fortunately, for those parents that cannot get along there is a solution. A neutral third party in the form of either a parenting facilitator or a parenting coordinator.

Understanding The Difference

Parenting facilitators and parenting coordinators play a crucial role in helping divorced or separated parents communicate and make joint decisions regarding their children. In Texas, they are typically appointed by the court to assist parents in resolving parenting disputes outside the courtroom. The primary goal of parenting facilitators is to promote effective communication and cooperation between parents, ensuring the well-being of the children involved. Both usually help parents with things like, dispute resolution, identifying problems with co-parenting, addressing misunderstandings, and developing healthy co-parenting strategies.

The major difference between a parenting facilitator and a parenting coordinator is confidentiality. Methods and procedures used by a parenting facilitator are not confidential. Meaning that if a parent is behaving poorly with the facilitator, and they end up back in court, the facilitator can testify against them. On the other hand, sessions with a parenting coordinator are confidential. They cannot testify in court regarding the sessions with the parents.

A facilitator takes more of a supervisory role, basically making sure that parents are following the orders of the court, and that everyone is acting in the best interest of the children. Coordinators take a bit more of an active approach in that they help parents make mutual decisions and agreements for the benefit of the children. However, neither a facilitator nor a coordinator can take power away from the court. By statute they cannot modify court orders, and they cannot determine issues of conservatorship, possession and access, or child support.

Benefits

One of the key advantages of utilizing one of these parties is the potential for quicker dispute resolution. Instead of relying on the court system, parents can work collaboratively with the facilitator or coordinator to address issues such as visitation schedules, holiday arrangements, and educational decisions. This can lead to more efficient and less adversarial solutions, benefiting both parents and, most importantly, the children.

Choosing the Right Approach

Deciding whether to engage a parenting facilitator or parenting coordinator depends on the specific needs of the family. If parents are generally cooperative but encounter occasional disputes, a parenting facilitator may be a suitable choice. On the other hand, if conflicts are more frequent and serious, a parenting coordinator with a more hands on approach might be necessary to ensure a things work out best for the children.

It’s important for parents to approach these processes with an open mind and a commitment to prioritizing their children’s well-being. While co-parenting after a divorce can be challenging, the assistance of parenting facilitators or coordinators can provide the guidance needed to navigate these complexities successfully.

Last week we discussed the process of preparing for and beginning a modification. This week we’ll discuss what comes after the case is filed, and what you need to do to be as prepared as possible. Beginning with temporary orders.

1. Temporary Orders

In family law, temporary orders stand as pillars of stability during periods of transition. These orders play a pivotal role in establishing a status quo through the pendency of the case. Until a ruling at final trial, temporary orders will be what governs the parties. This is crucial because the time period between temporary orders and final trial can span months if not years. It’s important that you put on a good case at temporary orders, because if you can get primary conservatorship flipped at that level, you will have a much easier time maintaining it at final trial.

As previously discussed, to have the best chance of success at a temporary orders hearing you will need to ensure all your evidence is ready to go and that your witnesses are lined up. Additionally, you will need to meet with your attorney and prepare to give your own testimony on the stand. How you present on the stand can go a long way with a judge. You will need to be dressed nicely, speak clearly, and free of any negative attitude. You also may need to practice your responses with your attorney, particularly regarding questions that opposing counsel may ask.

2. Discovery

Once temporary orders have been entered, regardless of the outcome, both sides will likely begin serving discovery on the other side with discovery. In most cases discovery is a necessary tool to help uncover truth and build your case against the other side. You can help your attorney in this endeavor by providing them with tailored questions they can ask for interrogatories and the specific documents they should request for production. While general discovery is better than no discovery, getting specific information from the other side will be far more beneficial to your case.

3. Deadlines

A crucial point in your modification case is meeting all deadlines given to you by your attorney. There are several deadlines that are paramount to the success of your case. For example, there are two deadlines for designating expert witnesses. These deadlines are 120 days before trial for testifying experts in cases where you are seeking affirmative relief, and 90 days before trial for cases where you are not. It won’t do you much good to give your attorney the name of the children’s psychiatrist who has information on the other parent’s abuse 30 days before trial with the rest of your witnesses.

4.  Final Trial

Final trial is the end all be all of your case (barring appeal). Most of the time this is your final stand to convince the judge and sometimes the jury to see things your way. Achieving success in a final trial in requires strategic preparation and a comprehensive approach. Presenting the facts of your case in the best possible light, anticipating and diminishing opposing arguments, and organizing compelling evidence are all necessary for best chance of success. Develop a clear and persuasive presentation, focusing on the key reasons why you need to be the primary conservator of the children. Don’t get lost in the weeds with third parties and trivial things. Focus on the facts that make you the better parent. There are no guarantees in court, but with proper preparation, and the right strategy you can be successful.

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.