holding parents feet to the fire

A good portion my practice in Dallas and Collin county is enforcement of the court's orders as they relate to child support and visitation of children. These occur in situations where the Court has already entered orders regarding children, for instance a Final Decree of Divorce, an Order Modifying Prior Order of the Court, or Order in Suit Affecting the Parent-Child Relationship.

Once the court enters those orders, they expect you to follow them. If you do not, the aggrieved (pissed off) parent, can sue the other parent for contempt of court.

A suit in Texas for enforcement of a child support order is relatively simple process. An attorney must simply prove that a set amount was payable on a set date at a set place and time, and that those payment were not made. For example, Dad is ordered to pay $500 per month beginning on June 1, 2007 and each first of the month thereafter to the disbursement unit in San Antonio Texas, address 1234 Main Street. If June 2008 rolls around and Dad has not made those payments it is relatively simple to prove that he is in contempt. He knew when he was supposed to pay, how much to pay, and where to pay it. If he does not do it, he is in contempt.

Enforcement of visitation in Texas can be that simple as well, but it rarely ever is. The reason is that the ticked off parent (parent not receiving their visitation) doesn't do what they are supposed to do. Let me explain by example:

Father is awarded custody of the child. He is ordered to provide the child to the mother for her visitation on the first, third and Friday of each month at his residence at 6:00 p.m. Simple enough, correct? Let's add these facts - mom and dad do not get along (i know that is far fetched, but work with me here) and dad makes mom's visits as difficult as possible. Mom calls dad on the first Friday at about 4:00 p.m. to confirm she is picking up the child (which she is not required to do, but does because it takes her 45 minutes through traffic to get to dad's house) and dad says don't bother showing up because the child and I won't be there. The mom makes a note of this and decides to forego the traffic and mess. She'll wait until the next visitation on the third Friday. Same thing happens on third Friday, so mom makes a note of it. She decides if he does it again she is going to sue his pants off. Fifth Friday comes and dad does same thing. Mom decides to sue for enforcement or contempt for the father violating the court's order.

Ruling? Father is not in contempt! WHAT?!! He didn't provide the child, how can he not be in contempt? He is not in contempt because MOM failed to follow the Court's order too! For mom to hold dad in contempt, she needs to appear on the first, third and fifth Friday of each month at dad's house at 6:00 p.m., regardless of whether the child is there or not. That is what the court order said and that is what mother must do. If she follows the court's order, and then dad does not, dad is in contempt.

While my example references a common situation, this same logic applies to other areas of decrees or orders of the court. FOLLOW THE ORDER, NOT WHAT YOUR EX-SPOUSE OR MOM OR DAD OF YOUR CHILD TELLS YOU. If you are unclear how to follow your order or what to do, call a lawyer. Most lawyers will offer free consultations or charge a small fee to speak with them. I do divorces in Plano, Frisco, McKinney (Collin County), and in Dallas, Richardson, Carrollton (Dallas County). I also handle modifications and enforcements of orders.

Moral of the story: If you follow the decree, and ignore what people tell you, you should be well on your way to holding the other parent's feet to the fire!

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!

danger danger

Just another quick post reminding anyone reading these posts to not accept what is written as the final word on what the law currently says. I just had a comment on my first post, which is years old, about how old you have to be to get married. The law has changed since I first wrote that post, so it is basically useless. THE BOTTOM LINE IS, DO NOT RELY ON MY BABBLINGS IN THIS BLOG AS THE LAW...CONTACT A LAWYER IN YOUR AREA TO CONFIRM EVERYTHING WRITTEN IN HERE.

The post is so old, the links don't even work anymore. This blog is intended to give you some general background as to family law, but it is not timeless, although my humor is. Thank you.

journaling in texas divorce and modification cases

Okay, this submission will be a quickly, but VERY important. The subject is journaling. It can apply in divorce situations, but is most important in modifications of prior orders (i.e. taking someone back to court to get custody or change visitation).

A good bulk of my work is in the modification field and therefore I hear all kinds of stories and allegations. The problem with most stories and allegations is that they are coming from memory. This creates two problems, one they cannot recall the story exactly, or most importantly they cannot put a date on it. This creates unreliability in the evidence. It also creates a he said, she said scenario.

Client: "My ex never exercises his visitation and when he does, he is always late."

Lawyer: (Drooling at the excellent information he is about to get) "Can you get me a list of all those dates he missed and the dates and times of when he was late?"

Client: "Well, I do not remember all the dates, but it is pretty much a couple times a month."

Lawyer: (Rolls his eyes and sighs) "Okay well try to put something together."

What otherwise would have been excellent evidence is now pretty much worthless. When dad denies it, I have nothing to back up our statements. Too bad.

The way to combat this is to keep a journal of everything involved in your case or your child's life. If the parent is always late to pick up the child, document it. If the parent is constantly missing visitations, document it. If your ex says something particularly nasty on the phone in front of the child, document it. You get the point.

It doesn't have to be anything elaborate, just a simple calendar to refresh your memory down the road. Imagine you get in a courtroom and you are alleging that the other parent is constantly missing visitations. The other parent says that is not true, but does not really seem to have anything to back up their denial. On the other hand, you have your journal and know the exact dates, times and what was said for each missed visitation and can list them out for the judge in detail. Who do you think the judge will believe?

A simple little task, kept up with over time, can have such a HUGE impact on your case.

Two big things to consider however:

1. Do not be TOO detailed. This is not a diary. Remember that you may have to give the other side a copy of your journal if you use it at a hearing. If you know that the other side could be reading it, that will help you keep it simple.

2. Disregard this post if you are ever the opposing party on one of my cases!

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!

residency restriction in texas

As I am sitting here listening to March Madness I thought of a few items that seem to be reoccurring themes in my family law practice. As a family law attorney you sometimes lose sight of the simple issues that people deal with daily. I will discuss a few of those ideas in the next few posts.

Today I wanted to offer a few tips on residency restrictions in Texas. A residency restriction is a court imposed limitation on where the CHILD can live. You notice that i said child. The Court cannot tell the adults where they can and cannot live, but they can limit the residence of the child. Obviously, if you are the parent with custody of the child and the court limits the residence of the child, then your residence has been effectively limited too.  Your option is to stay put or let the child live with the non-custodial parent.

The state legislature has said that they want to promote the relationship between the parent who does not have custody of the child and that child.  The way they accomplish this is by assuring that there is frequent contact, i.e. a residency restriction.

The Courts have determined that in Texas a residency restriction can be as large as the state or as small as a neighborhood or school district.  The size of the geographical area is within the court's discretion subject to the facts that they hear at trial.  In Collin County (Plano) and Dallas County the courts will typically impose the Dallas and contiguous counties (counties touching Dallas) or the Collin and contiguous counties language by default.  That can be changed with the proper facts.

There is one simple way to have a residency restriction put in place if you are not the one with custody of the child, and that is to stay active in the child's life.  I cannot tell you how many times I have seen cases where my client wants a residency restriction but has not been active in the child's life.  I think sometimes it is simply a control issue.  If you want a residency restriction in Texas, you need to show that you are active in the child's life.  That can mean simply exercising the visitation that you have been awarded or attending extracurricular activities.  Attend some parent-teacher conferences, take the child to the doctor occasionally. You get the point.

If you are active in the child's life then the court will protect your interests because that is the "policy" of the State of Texas.

The things listed above also apply to parents who want to remove the residency restriction in Texas.  If the parent without custody is active in the child's life, then chances are good that the court will not lift the restriction.  However, if there is not active involvement, and the parent wishing to move has a good reason, chances are good that the court will lift that residency restriction.

The moral to this story is simple, stay involved in your child's life or suffer the consequences when a parent wants to move out of state.

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS.  I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple! 

grandparent’s rights in texas (Cont.)

In my last post we discussed a very brief background of the evolution of grandparent's rights in Texas. Now I will provide you with a brief synopsis of the law as it currently stands. The information below is taken from the Texas Family Code and an excellent article written by Jimmy L. Verner, Jr. of Verner & Brumley, P.C. I really like the way Mr. Brumley organized and explained the current law as it relates to grandparents seeking rights to their grandchildren. I have made a few changes to the wording to try and simplify the legal jargon. I wanted to put a direct link to the article in this post, but it appears the link is broken on their website. This is the link to their "Resources" page where the article is located. There is tons of good information on this page.

Managing Conservatorship

A grandparent can seek managing conservatorship of a grandchild by original suit or intervention if one or more of the circumstances listed below exist. Managing conservatorship typically means custody in this type of case, but does not have to mean that. It could simply mean that the grandparent has rights to make decisions regarding the grandchild's up-brining. An "intervention" means that there is already a lawsuit pending regarding the child and the grandparent simply joins the lawsuit.

1. The grandparent has had actual care, control and possession of the grandchild for at least six months ending not more than 90 days preceding the date of filing the lawsuit. (The 90 day requirement ensures that the 6 month possession was recent and not years and years ago); OR
   
2. The grandchild and the grandchild's guardian, managing conservator, or parent have resided with the grandparent for at least 6 months ending not more than 90 days prior to filing the lawsuit IF the child's guardian, managing conservator, or parent is deceased at the time of the filing of the lawsuit; OR
   
3. The grandchild's present circumstances would significantly impair the grandchild's physical health or emotional development (meaning that where the child currently lives with the parent presents a danger to the child either emotionally or physically) ; OR
   
4. Both the grandchild's parents, the surviving parent, or the managing conservator either filed the lawsuit for the grandparent to have managing conservatorship or have agreed to it.
   

If any of the above four exists then there may be a case for the grandparent to seek custody or visitation of the grandchild.

Possessory Conservatorship

A grandparent may seek possessory conservatorship of a grandchild by original suit or intervention if one or more of the circumstances listed below exists. Possessory conservatorship is NOT custody and would be more like a visitation lawsuit. However, it differs from a visitation lawsuit in that the grandparent may be granted certain rights with regard to the up-brining of the grandchild.

Original Lawsuit OR Intervention

1. The grandparent has had actual care, control and possession of the grandchild for at least six months ending not more than 90 days preceding the date of filing the lawsuit. (The 90 day requirement ensures that the 6 month possession was recent and not years and years ago); OR
   
2. The grandchild and the grandchild's guardian, managing conservator, or parent have resided with the grandparent for at least 6 months ending not more than 90 days prior to filing the lawsuit IF the child's guardian, managing conservator, or parent is deceased at the time of the filing of the lawsuit;
   

The above two allow the grandparent to file and original suit or an intervention for possessory conservatorship if either is met.

ONLY an Intervention

A grandparent can file ONLY an intervention for possessory conservatorship if the following two are met:

1. The grandparent has had substantial past contact with the child; AND
   
2. The grandparent makes satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the grandchild's physical health or emotional development.
   

Grandparent Access (Visitation)

A grandparent may seek access to a grandchild by original suit or intervention if ALL THREE numbered circumstances exist PLUS one or more of the lettered circumstances exist:

1. At the time the lawsuit is filed, at least one biological or adoptive parent of the grandchild has not had that parent's rights terminated; AND
   
2. The grandparent requesting access to the grandchild proves that denial of access to the grandchild would significantly impair the grandchild's physical health or emotional well-being (this will take more than just the grandparent saying so … you would need a professional to confirm this); AND
   
3. The grandparent requesting access to the grandchild is a parent of a parent of the grandchild; AND
   

   
   

   1. The parent has been incarcerated in jail or prison during the three month period preceding the filing of the lawsuit; OR
      
   2. The parent has been found by a court to be incompetent (a separate lawsuit); OR
      
   3. The parent is dead; OR
      
   4. The parent does not have actual OR court-ordered possession of or access to the child.
      

You can see that this statute is very limited. Letters a. through d. severely limits who can file suit. This statute used to include a lettered provision for divorced or separated parents as well as the four you see, but that provision was removed as a result of the Troxel case referred to in my earlier post. You can see what the removal of this provision did to the ability of a grandparent to seek access to their grandchild.

This is simply a quick reference guide to the existing law for grandparents. If you are a grandparent and need help, contact a lawyer to discuss your options. DO NOT simply rely on this post and throw up your hands. There may still be a chance, and until you speak to a lawyer, you will never know.

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!

grandparent’s rights in texas

There is probably not a hotter topic than grandparent's rights in Texas. "Rights" typically refers to the right to have access and/or possession of a grandchild. There are scenarios where a grandparent can seek custody of a grandchild, which I may discuss later, but this topic is on visitation.

The issue of visitation with a grandchild typically does not arise in the context of a healthy family relationship, i.e. mom and dad and child together in a loving home. When that family unit is disrupted, either through divorce, separation, or death is when you will typically run into the situation where a grandparent is alienated from their grandchild. It seems the most common these days is the death of one of the parents of the child. You can imagine how difficult these issues become on the grandparents whose child has died and the surviving parent of the child. It seems that the more time that passes, the more difficult the situation becomes as the surviving parent establishes a new life. It seems to me that these are no win situations as both sides have legitimate arguments and everyone is hurting.

I do not recall grandparent rights cases coming up much early on in my career (in the90's). That could be because I was a fledgling attorney who did not attract that type of business, or maybe it is the baby boomer thing. In any case, I know about it now and it is a big topic.

Where things seemed to have really sparked was when the U.S. Supreme Court decided Troxel v. Granville in June 2000. The grandparents in this case were the Troxels. They were the paternal grandparents and their son had died. The surviving parent (Granville) allowed visitation with the Troxels but the visitation was limited. The Troxels wanted more visitation and sued the mother. The statute In Washington that allowed them to sue provided that "any person" could file a suit seeking visitation of a child and the trial court would grant it if it found it was in the best interest of the child. You can see how broad this statute was…any person? The garbage man? This statute was bound to take a fall, which it did. To finish the story, the grandparents got less visitation than they wanted, but more than the mother wanted to give. She (the mother) appealed it all the way to the Supreme Court of the United States.

The Supreme Court found two problems with the statute as written. First, it in no way took into account the parent's decisions regarding what was best for the child. The only people that were really involved was the person that filed the lawsuit and the judge who imposed what they thought was best. The second problem was that the grandparents had not proven that the mother was unfit. The Court stated that there was a presumption that a fit parent acted in the best interest of their child. The grandparents apparently did not even address this issue, and why would they because the statute did not require it. The second issue, the presumption, is the big one and is the one that has been used throughout the states and is now the standard here in Texas. Ultimately the Supreme Court found the Washington Statute unconstitutional.

Since Troxel was entered, the Texas courts have been scrambling to determine whether our statutes (as they existed then) were constitutional. In every case they found that it was. I will not go into each case here as most are now obsolete with the new statutes that are in place (to be discussed later). The first case to really adopt the "presumption" discussed above was the In Re: Pensom case out of San Antonio decided in 2003. That is the case that we relied upon for years to determine what we had to prove or disprove and now is reflected in the grandparent visitation statute. Over the years, the legislature has been active in the process as well…honing the grandparent statute so that it will comply more closely with the ruling Troxel. I will discuss the current version of the statute in the next post.

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!

fyi…

When reading my posts, especially ones from way back, remember that the law is a constantly changing and fluctuating entity. Point being, something that was discussed a year ago may not be the law now. So take anything you read in my posts with a grain of salt, and always verify the information with a lawyer of your choice. Or if you cannot afford or find a lawyer, research your specific issues by going to the heart of the matter….the Texas Family Code to which I have provided a link to the right.

do it yourself divorce continued….

I have found an excellent resource for those of you out there pursuing your own "pro se" (representing yourself) divorce. I still think the first step is to contact your local district clerk's office and/or the court for their procedures. Additionally, the Texas Young Lawyers Associtation (TYLA) has put together some great information in assisting you through the legal quagmire. Their website is the www.tyla.org and more specifically the family law information can be found at www.tyla.org/family_law.html.

They have a "Pro Se Divorce Handbook" and "What to Expect in Family Court". Both of these are excellent resources as they pull the curtain back a bit from the process. They've done such a fine job that I think I may not need to do it myself. So it's on to a new topic…..