tag:blogger.com,1999:blog-215601122024-03-07T13:13:31.751-06:00Texas Family Law BlogA blog dedicated to the discussion of family law in TexasChris Schmiedekehttp://www.blogger.com/profile/05252893456286036003noreply@blogger.comBlogger36125tag:blogger.com,1999:blog-21560112.post-48326227289706208722010-04-23T09:31:00.005-05:002010-04-23T09:40:13.185-05:00new blogI have been working on a new blog for some time now. While it is not complete, it is up and running. I have begun posting on the new blog and have ceased posting on this blog.<br /><br />Please visit my new site at <a href="http://chrislawyerblog.com">chrislawyerblog.com.</a>Chris Schmiedekehttp://www.blogger.com/profile/05252893456286036003noreply@blogger.com2tag:blogger.com,1999:blog-21560112.post-52517724878995720772009-12-28T21:01:00.003-06:002009-12-28T21:32:29.484-06:00divorce and the holidaysIn my last post I went over tips to survive Halloween. As the holidays progressed I read more good articles on how to help your kids survive the holidays. Dick Price posted an article entitled <a href="http://dick-price.blogspot.com/2009/12/7-ways-to-wreck-your-kids-holidays.html">"7 Ways to Wreck Your Kids Holidays"</a>, and J. Benjamin Stevens posted <a href="http://www.scfamilylaw.com/2009/12/articles/visitation/tips-to-follow-for-holiday-parenting-time/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+SCFamilyLawBlog+%28South+Carolina+Family+Law+Blog%29">"Tips to Follow for Holiday Parenting Time"</a>. These are great articles, and there are many more like it.<div><br /></div><div>As I read these articles it got me thinking about who the articles were intended for and I noticed a common theme, or lack thereof. What about you? Separated parents can find new gaps in their life that were once filled with sports, dance class and of course the holidays. What to do?</div><div><br /></div><div>There are many things you can do, but I suggest you take up a hobby. Never had a hobby? Now is the perfect time.</div><div><br /></div><div>The one that jumps out at me is exercise. I love to exercise. Looking for something more than the standard treadmill on LA Fitness? Try <a href="http://www.crossfit.com/"><span class="blsp-spelling-error" id="SPELLING_ERROR_0">Crossfit</span></a>. I guarantee it will be the most challenging and rewarding exercise you have ever done. Local to the Dallas, Texas area? Check out <a href="http://crossfitdeep.com/"><span class="blsp-spelling-error" id="SPELLING_ERROR_1">Crossfit</span> Deep <span class="blsp-spelling-error" id="SPELLING_ERROR_2">Ellum</span></a>. From somewhere else, search <span class="blsp-spelling-error" id="SPELLING_ERROR_3">Crossfit</span> and your local city.</div><div><br /></div><div>Like to bike? In Plano, Dallas, or surrounding areas, check out <a href="http://www.dorba2.com"><span class="blsp-spelling-error" id="SPELLING_ERROR_4">DORBA</span></a>. Somewhere else, search Mountain Biking and your city.</div><div><br /></div><div>Not an exercise buff? How about photography or <span class="blsp-spelling-error" id="SPELLING_ERROR_5">videography</span>? Check out <a href="http://vimeo.com"><span class="blsp-spelling-error" id="SPELLING_ERROR_6">Vimeo</span></a> and of course <a href="http://youtube.com">YouTube</a>. How about cooking?</div><div><br /></div><div>The point is, there are many things you can do for yourself to fill in the time once occupied by children's activities. All of us have things that we want to do but could never find the time. Now you have the time. Take care of yourself.</div><div><br /></div>Chris Schmiedekehttp://www.blogger.com/profile/05252893456286036003noreply@blogger.com12tag:blogger.com,1999:blog-21560112.post-21503354943069364922009-10-29T12:30:00.002-05:002009-10-29T12:47:32.433-05:00halloween and the divorcing parentsI read an excellent article on <a href="http://www.divorce360.com">Divorce 360</a> regarding how to handle the Halloween holiday when recently divorced or in the divorce process. As always, being reasonable and viewing your decisions and statements through the eyes of the children is the best way to handle things. If you need a little help with this, they offer 5 tips in their article <a href="http://http://www.divorce360.com/divorce-articles/after-divorce/parenting/divorced-with-kids-on-halloween.aspx?artid=1436">"Tips to Help You and your Ex Make this Halloween Fund for the Kids"</a>:<div><br /></div><div><span class="Apple-style-span" style="font-family: arial, verdana, helvetica; font-size: 13px; font-weight: bold; "></span></div><blockquote><div><span class="Apple-style-span" style="font-family: arial, verdana, helvetica; font-size: 13px; font-weight: bold; ">1. Keep children informed.</span></div><span class="Apple-style-span" style="font-family: arial, verdana, helvetica; font-size: 13px; "><div><br /></div>Let the child know ahead of time what will happen on the holiday "so that different expectations will not arise," Shoshanna said. <br /><br /><strong style="font-family: arial, verdana, helvetica; ">2. Don't put the kids in the middle.</strong><br /><br /></span><div><span class="Apple-style-span" style="font-family: arial, verdana, helvetica; font-size: 13px; ">Don't ask, 'Do you want to spend Halloween at my house of your mom's (or dad's)?', " said Blackstone Ford. "That approach tests your child's allegiance. Better to ask, 'Where would you like to spend Halloween?"' <br /><br /><strong style="font-family: arial, verdana, helvetica; ">3. Share your children.</strong><br /><br /></span></div><div><span class="Apple-style-span" style="font-family: arial, verdana, helvetica; font-size: 13px; ">"If possible, see if you can share the time during a holiday so that all participate. Perhaps each parent can take half of the time. Or, for Halloween, for example, perhaps one parent can get the costumes and dress the child and the other parent go with them for the trick and treating," Shoshanna said. <br /><br /><strong style="font-family: arial, verdana, helvetica; ">4. Treat the other parent well.</strong><br /><br /></span></div><div><span class="Apple-style-span" style="font-family: arial, verdana, helvetica; font-size: 13px; ">According to Shoshanna, it is "very helpful for children to see that their parents are treating one another respectuflly during holiday times (as always). Don't use this occasion to reminisce about the pass or say negative things about your ex."<br /><br /><strong style="font-family: arial, verdana, helvetica; ">5. Make your own plans.</strong><br /><br /></span></div><div><span class="Apple-style-span" style="font-family: arial, verdana, helvetica; font-size: 13px; ">If you're a parent who is alone during a holiday, don't make a big deal about it or create upset about it in the child. Find a friend to share the time with. Or, use the time to volunteer and be with others. "You don't want to child to feel that they're enjoying the holiday while the other parent is sad or alone," Shoshanna said. "This may create guilt in them and prevent them from having a good time."</span></div></blockquote><div><span class="Apple-style-span" style="font-family: arial, verdana, helvetica; font-size: 13px; "></span></div>Chris Schmiedekehttp://www.blogger.com/profile/05252893456286036003noreply@blogger.com3tag:blogger.com,1999:blog-21560112.post-44793068630119645862009-10-26T16:35:00.002-05:002009-10-26T16:49:23.600-05:00this is a good time to make a point about residency restrictions in TexasIn a comment to my original post on the <a href="http://chrislawyer.blogspot.com/2008/03/residency-restriction-in-texas-as-i-am.html">residency restriction in Texas</a>, anonymous posts:<br /><br /><blockquote>Chris, you said in your post that one way to maintain a geographical restriction is to stay active in your child's life well, I'm here to tell you, that's not the case in Guadalue County, Texas. I'm a joint managing conservator or my children and even though my ex-wife is the "custodial" parent, I proved in Court that the children spent more than half the time with me, I testified confidently that I had been to EVERY significant even in their life since the divorce, and showed that I had a daily relationship with them. The judge still allowed my ex-wife to take my children and live 5 hours away with them. SHe claimed that she had been searching for a teaching position for 2 years within the geographical restrictions and I brought public information requests from all the school districts surrounding her residence that showed that she had NEVER applied to them for a job. Still, she got the restriction lifted. So, by no fault of my own, without me doing anything but be a good father, never missed a child support payment PLUS i paid for their daycare, my children were taken away from me and I'm helpless to having the court make my kids another statistic.</blockquote><br /><br />This is a good opportunity to bring home a point that I find myself stressing over and over in response to comments to my posts and that is that you are always subject to the whims of a judge. Many times the specific facts of a case are less important than what judge it is before or how the judge feels about you as a person. Judges are people too and have opinions like the rest of us, wrong or right.<br /><br />You might ask then, what am I to do in a situation similar to that of anonymous? Anonymous can and probably should appeal the ruling of the Court with regard to lifting the Texas residency restriction. If he does not already have an attorney then he should consult an appellate attorney to inquire as to appealing the judge's ruling. An appellate court is the checks and balances that help control how the lower courts behave.<br /><br />Just some food for thought for those of you out there who are hyperfocused on the facts of their specific situation. Ask anonymous, he will tell you that sometimes you can do everything right and still not get what you feel you are entitled to.<br /><br />Anonymous, good luck.<br /><br /><br /><blockquote></blockquote>Chris Schmiedekehttp://www.blogger.com/profile/05252893456286036003noreply@blogger.com3tag:blogger.com,1999:blog-21560112.post-11924497133074751352009-10-14T13:21:00.001-05:002009-10-14T13:21:31.913-05:00separating in Texas and online considerations<div xmlns='http://www.w3.org/1999/xhtml'>If you are separated from your spouse or considering separation, I have attached a great article about how to separate your online life. From a legal perspective, this article has some good advise, most specifically in regard to passwords.<br/><br/>The majority of divorcing people I deal with in my practice have web-based email such as Yahoo or Hotmail. If you forget your passwords for those accounts there are certain questions you can answer to change the password. Problem is, your ex may know the answer to those questions and can then change the password giving them access to all your personal emails. Be careful with this and enjoy the following article:<br/><br/><a href='http://arstechnica.com/web/news/2009/10/how-to-break-up-in-an-online-worldand-avoid-e-stalkers.ars?utm_source=rss&utm_medium=rss&utm_campaign=rss'>How to break up in an online world—and avoid e-stalkers - Ars Technica</a><br/><blockquote/><br/><br/><div class='zemanta-pixie'><img src='http://img.zemanta.com/pixy.gif?x-id=b45ee772-66c9-80ca-a5bb-60477a4e53c8' alt='' class='zemanta-pixie-img'/></div></div>Chris Schmiedekehttp://www.blogger.com/profile/05252893456286036003noreply@blogger.com1tag:blogger.com,1999:blog-21560112.post-33319186520269667372009-10-02T11:35:00.001-05:002009-10-02T11:35:16.334-05:00gay marriage (or divorce) in Texas wins it first big battle...<div xmlns='http://www.w3.org/1999/xhtml'>but not the War. In what I think is a landmark ruling for gay divorces, a judge in Dallas County has ruled the ban on gay marriage in Texas is unconstitutional. Read about it in the article - <a href='http://texaslawyer.typepad.com/texas_lawyer_blog/2009/10/state-district-judge-finds-texas-ban-on-gay-marriage-unconstitutional.html'>Texas Lawyer Blog: State district judge finds Texas’ ban on gay marriage unconstitutional</a><br/><br/>The Texas Attorney General is fighting this tooth and nail in an attempt to uphold the ban on gay marriages and has vowed to see this all the way through to the Supreme Court.<br/><br/>The ruling by Judge Callahan in the 302nd District Court basically opens the door for this gay couple to get divorced. Kind of ironic if you ask me, supporting gay marriage so someone can get divorced. In any case, the couple in question here, who were married in another state, will most likely be divorced in a few weeks. When that happens the Attorney General's Office will certainly appeal to the Texas Court of Appeals level.<br/><br/>The case will probably then proceed to the Texas Supreme Court and then on to the United States Supreme Court.<br/><br/>I will update you as information becomes available.<br/><a href='http://texaslawyer.typepad.com/texas_lawyer_blog/2009/10/state-district-judge-finds-texas-ban-on-gay-marriage-unconstitutional.html'><u/></a><blockquote/><br/><br/><div class='zemanta-pixie'><img src='http://img.zemanta.com/pixy.gif?x-id=4b4f20d1-e08e-8d12-9c8b-633a485a0304' alt='' class='zemanta-pixie-img'/></div></div>Chris Schmiedekehttp://www.blogger.com/profile/05252893456286036003noreply@blogger.com3tag:blogger.com,1999:blog-21560112.post-1726113153454033202009-08-12T10:52:00.004-05:002009-08-12T10:57:56.375-05:00same sex marriage in TexasI found an interesting blurb in a Texas case on gay marriage. You can find it in my discussion board <a href="http://www.facebook.com/topic.php?uid=103660687987&topic=11056">here</a>.Chris Schmiedekehttp://www.blogger.com/profile/05252893456286036003noreply@blogger.com0tag:blogger.com,1999:blog-21560112.post-34994228793841234302009-08-11T10:03:00.002-05:002009-08-12T10:57:06.209-05:00article on parents who continually miss visitation<a href="http://www.divorce360.com/divorce-articles/child/custody/pulling-the-plug-on-visitation.aspx?artid=1329">divorce360.com | Pulling the Plug on Visitation</a><br /><br />Shared via <a href="http://addthis.com/">AddThis</a>Chris Schmiedekehttp://www.blogger.com/profile/05252893456286036003noreply@blogger.com1tag:blogger.com,1999:blog-21560112.post-45048127749547479392009-08-05T14:16:00.004-05:002009-08-05T14:24:32.451-05:00great articles on do it yourself divorcesClick <a href="http://www.divorcemag.com/articles/separation_divorce_process/">here</a> to visit the site. Remember that I offer online divorce paperwork to handle your own divorce in Texas, under the Uncontested Divorce in Texas tab. You can visit that portion of my website by clicking <a href="http://www.chrislawyer.com/PracticeAreas/Uncontested-Divorce.asp">here</a>.Chris Schmiedekehttp://www.blogger.com/profile/05252893456286036003noreply@blogger.com0tag:blogger.com,1999:blog-21560112.post-89094508461406639912009-07-22T15:04:00.002-05:002009-07-22T15:06:30.720-05:00how to use an RSS feedHere is a great article on how to use an RSS feed to follow this blog and setting it up in Google Reader (like and email program to organize the sites you are following. <div><br /></div><div><a href="http://www.internetmarketingboomer.com/hot-topics/what-is-rss-and-how-to-use-google-reader/">Internet Marketing Boomer</a></div>Chris Schmiedekehttp://www.blogger.com/profile/05252893456286036003noreply@blogger.com1tag:blogger.com,1999:blog-21560112.post-60602396147312332722009-07-14T19:54:00.005-05:002009-07-14T20:30:27.118-05:00terminations and adoption in Texas part 2I know some of you have been on the edge of your seats to get to part 2. Sorry for the delay, been busy busy.<div><br /></div><div>Okay, so we know now about terminating a parent's rights. That is the first step to completing an adoption in Texas. As I stated earlier, there can only be one father and one mother. If a step-father wants to adopt, then bio father must be terminated. However, if someone other than a step-parent wants to adopt then BOTH parent's parental rights must be terminated. This would mean <span class="blsp-spelling-corrected" id="SPELLING_ERROR_0"><span class="blsp-spelling-error" id="SPELLING_ERROR_0">grandparents</span></span>, uncles, aunts, etc...</div><div><br /></div><div>Okay, so on to adoptions. This discussion is about private adoptions in Texas and not adoptions through an agency. Everyone knows what an adoption is, so I will just give a brief discussion of what is required to complete the adoption. First you must have a home study done. A home study is where a social worker comes and visits your house and makes sure it is suitable for the child being adopted. The social worker then makes a report to the court that the home is suitable and the adoption should go through. If the home is not suitable, or the people in it are not, then you know the result of that. Social studies can range anywhere from a few hundred dollars to thousands dependent upon where you are and the <span class="blsp-spelling-corrected" id="SPELLING_ERROR_1"><span class="blsp-spelling-error" id="SPELLING_ERROR_1">requirements</span></span> of that specific court.</div><div><br /></div><div>The next major expense is the ad <span class="blsp-spelling-error" id="SPELLING_ERROR_2"><span class="blsp-spelling-error" id="SPELLING_ERROR_2">litem</span></span> or <span class="blsp-spelling-error" id="SPELLING_ERROR_3"><span class="blsp-spelling-error" id="SPELLING_ERROR_3">amicus</span></span> attorney. This person is an attorney and represents the interest of the child. An attorney for the child. In a step-parent adoption this requirement can sometimes be waived, but is a requirement in all other adoptions. The purpose of the <span class="blsp-spelling-error" id="SPELLING_ERROR_4"><span class="blsp-spelling-error" id="SPELLING_ERROR_4">amicus</span></span> attorney is again to watch out for the best interests of the child and make a <span class="blsp-spelling-corrected" id="SPELLING_ERROR_5"><span class="blsp-spelling-error" id="SPELLING_ERROR_5">recommendation</span></span> to the Court for or against the adoption. Guess who pays for this.</div><div><br /></div><div>Next, the prospective adoptive parent or parents must have a criminal history report submitted to the court. This is done by submitting a fingerprint card to the Department of Public Safety who then mails a copy of the report to the court. Clean record, clean adoption. This is only required for the adopting parent. You bio parents out there with the arm length wrap sheets are safe!</div><div><br /></div><div>Next there is the health and genetic report. This is not required in a step-parent adoption because the bio parent knows their medical background and probably that of the parent who will be terminated. When the adoption involves non-parents however, it is important to know the biological parent's medical background so that the child's health can be safeguarded. This is a form that must be filled out in detail and filed with the court.</div><div><br /></div><div>There are a few affidavits that must be filed with the court that I won't go into here. Nothing major.</div><div><br /></div><div>This is not an all inclusive list of the things that occur in an adoption, but it is pretty close. If you are <span class="blsp-spelling-corrected" id="SPELLING_ERROR_6"><span class="blsp-spelling-corrected" id="SPELLING_ERROR_6">contemplating</span></span> an adoption I suggest you contact an attorney and let them handle it so that you do not miss anything. However, if you want to research it more yourself, all the <span class="blsp-spelling-corrected" id="SPELLING_ERROR_7"><span class="blsp-spelling-corrected" id="SPELLING_ERROR_7">requirements</span></span> are set out in the Texas Family Code. You can find a link to the Texas Family Code at my website to the right under Resources.</div><div><br /></div><div>One final word to address the questions that I know will arise. Typically a court will not terminate a parents rights unless there is proof to the court that there is someone who is going to step in and support the child. For example, mother makes $30,000 a year and is struggling to get by. She despises the father and wants to terminate his rights, but there is nobody adopting the child. Father does not pay child support. In this situation the Court most likely will not terminate the parental rights unless there is some other reason to do so, but not for failure to support the child. They want somebody supporting the child or obligated to support the child. They will not let the father off the hook so easy. In my scenario, if the mother made $100,000 per year or there were a step father adopting, the Court may change its position because they know the child will be taken care of financially.</div><div><br /></div><div>Another point. What happens to child support in a termination? Current child support (i.e. child support in the future) terminates. Back child support is not terminated (absent an agreement by the person owed the money) because that obligation has already accrued and is due and owing. That simple.</div><div><br /></div><div>Good luck.</div><div><br /></div><div><span class="Apple-style-span" style="font-size: x-small;">The information contained in this blog is provided for </span><span class="blsp-spelling-corrected" id="SPELLING_ERROR_8"><span class="blsp-spelling-corrected" id="SPELLING_ERROR_8"><span class="Apple-style-span" style="font-size: x-small;">informational</span></span></span><span class="Apple-style-span" style="font-size: x-small;"> (and sometimes </span><span class="blsp-spelling-corrected" id="SPELLING_ERROR_9"><span class="blsp-spelling-corrected" id="SPELLING_ERROR_9"><span class="Apple-style-span" style="font-size: x-small;">entertainment</span></span></span><span class="Apple-style-span" style="font-size: x-small;">) 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 </span><span class="blsp-spelling-corrected" id="SPELLING_ERROR_10"><span class="blsp-spelling-corrected" id="SPELLING_ERROR_10"><span class="Apple-style-span" style="font-size: x-small;">professional</span></span></span><span class="Apple-style-span" style="font-size: x-small;"> 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!</span></div>Chris Schmiedekehttp://www.blogger.com/profile/05252893456286036003noreply@blogger.com9tag:blogger.com,1999:blog-21560112.post-77987232581519887162009-02-09T14:29:00.003-06:002009-02-09T15:34:07.139-06:00terminations and adoptions in Texas part 1I would like to post a bit on terminations and adoptions. I get tons of questions and emails regarding terminating a parents parental rights or a step parent wanting to adopt a step-child. I am going to give a very brief procedural layout for how this works in an attempt to answer some of these questions. In part 2 of my post I will discuss some of the hoops that must be jumped through to accomplish a termination and adoption.<br /><br />Before anybody can adopt a child, either one or both biological parents must have their parental rights terminated. That means that if a step-father wants to adopt his step-child, the biological father's rights must be terminated. The point is, there can only be one father and one mother for each child whether that is biological or legally (through adoption).<br /><br />A termination in Texas can only be completed by having "grounds" for the termination. Put simply "grounds" are reasons for the termination. You do not get to determine the reasons, the Texas legislature has set up the reasons for you. If you will look to the right, there is a link to my website. Please click on that link and go the the "resource links". There you can find the Texas Family Code. Specifically you need to look at Chapter 161, Section 161.001. There you will find your reasons. THERE ARE NO OTHERS! I can see the posts now...."can i terminate the father's rights cause he never visits". Is it in the list is just referenced? Then no. "Can I terminate the mother's rights cause she is crazy and talks to the walls." Is it on the list? Then no you cannot terminate for talking to walls.<br /><br />The two most common reasons to accomplish a termination that I see are failure to support the child for one year or the signing of an affidavit of relinquishment. These are not the only ones, as you can see from the list, just the most common. Any of the others will work as well if they are applicable.<br /><br />Failure to support a child is pretty obvious. That means that the parent has not financially supported their child. This can be failure through a court order or not. Bottom line, if you don't support your child, your rights can be terminated. The failure to support has to be recent (within 6 months of filing the petition to terminate). This means that you cannot use a parent's failure to support a child that occurred 5 years ago if the parent supports the child now.<br /><br />The second is the affidavit of relinquishment. This is basically an agreed termination as the biological parent has agreed to terminate rights. The form for this is very specific and probably needs to be obtained from an attorney. This alone, as seen from the list, is grounds for termination.<br /><br />In the first reason, or in any other reason other than the affidavit, you are going to have to go through a court hearing to get the rights terminated. That means filing a lawsuit, serving the party you are trying to terminate and setting a hearing where a judge will decide the issue.<br /><br />With the affidavit, there is typically not the need for a full blown termination hearing as the parent has agreed to terminate. In some cases, this moves you straight to the adoption. I say in some cases because there are certain times when a person agrees to terminate their rights, but the court will not do it. I will discuss this below.<br /><br />In any case, you have to complete the termination before you can complete the adoption. If you have to have a trial, then that needs to proceed and conclude before the adoption can proceed. If the affidavit is used and you do not run into the problem discussed below, then you are ready to proceed with the adoption.<br /><br />Just because a biological parent agrees to sign an affidavit of relinquishment does not mean the court will terminate. The court is primarily concerned about the best interests of the child. One of the major interests the court protects is the support of the child. They will not allow a parent to terminate to avoid paying child support. They also will not allow a parent to terminate another parent's rights unless it is shown that there is someone to step in and take the place of the support provided or owed by the terminated parent or unless the parent seeking the termination of the other parent's rights can establish to the court that they can adequately meet the needs of the child financially. Even upon this showing, they still may not terminate. A parent is obligated to support their children and the court does not take this lightly. If there is someone out there who can support the child, the Court wants them supporting the child.<br /><br />One more note regarding child support. While a termination of a parent's parental rights will terminate all future child support payments, it will not terminate amounts owed in the past. Those amounts have already accrued and cannot be undone.<br /><br />This concludes Part 1. See you in Part 2!<br /><br /><span style="font-size:78%;">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!</span>Chris Schmiedekehttp://www.blogger.com/profile/05252893456286036003noreply@blogger.com9tag:blogger.com,1999:blog-21560112.post-77084541564657421512008-10-27T10:11:00.003-05:002008-10-27T10:14:05.976-05:00oops i forgot to mention....You can also purchase very inexpensive legal advise, for Texas, a la carte for $35.00 per issue. Basically you buy an email to me for $35 where you can list all your questions. This is designed for situations in which you want to represent yourself, but have a simple legal question or two that you do not know the answer to. For $35.00 you can get that answer or answers.<br /><br />Now that is some cheap legal advise!Chris Schmiedekehttp://www.blogger.com/profile/05252893456286036003noreply@blogger.com12tag:blogger.com,1999:blog-21560112.post-48992692215547290502008-10-23T15:59:00.002-05:002008-10-23T16:11:19.996-05:00it lives!Okay it is official, my form website is up and running. You can visit it through my "uncontested divorce" page on <a href="http://www.chrislawyer.com">www.chrislawyer.com</a> or you can visit it directly at <a href="https://www.clientspace.org/index.asp?firm=93B54BB1">this address</a>.<div><br /></div><div>In addition to providing forms for uncontested (or agreed) divorces in Texas, I will soon have uncontested or agreed petitions to modify Texas orders or decrees already entered by the court.</div><div>For instance if you are already divorced but your child says they want to come live with you, and the other parent agrees, you can use my forms to file and finalize a modification of the custody provisions in your decree. Of course this is for Texas only.</div><div><br /></div><div>Another example, and important in this economy, is when a divorce decree or order sets an amount of child support that is no longer correct because of changes in your job or you rate of pay, you can use my forms in a very inexpensive fashion to get your child support modified (assuming that your ex is in agreement).</div><div><br /></div><div>If someone is interested in the forms, they can use them and the "pay for legal advise" section and get help with their specific legal situation. In this scenario you could file your own lawsuit using my forms and then get the help you need in representing yourself. Pretty cool.</div><div><br /></div><div>If none of the above work, you can always retain me if you need to divorce or modify an order in the Dallas, Plano, Denton areas. Sorry, can't jet down to San Antonio to help you other folks.</div><div><br /></div><div>Enough self promotion....thanks for reading this mish mash!</div>Chris Schmiedekehttp://www.blogger.com/profile/05252893456286036003noreply@blogger.com2tag:blogger.com,1999:blog-21560112.post-23354922995522333792008-09-09T14:49:00.002-05:002008-09-09T14:58:33.231-05:00i'm still aliveI still live and breathe. Things have been very hectic around the office with new clients (good), software malfunctions (bad) and a new project I have been working on in a further attempt to help people with their family law issues. <div><br /></div><div>The new project is a form website for do it yourself divorces in Texas, do it yourself wills, etc... This form service will be fully integrated with my existing website as you can see on my <a href="http://www.chrislawyer.com">here</a>. My service will differ from the free divorce forms and the pay for divorce forms websites in that I will provide legal review of the forms to make sure they are correct. With the other divorce form websites you simply buy the form and you are on your own. On mine, you get my assistance with the forms and can even just buy a la carte legal advise. In the future I will try to integrate a do it yourself modification section for Texas so that you can do your own modifications.</div><div><br /></div><div>I am very excited about this new service and will announce more about it in the future.</div><div><br /></div><div>As for my blog posts, I am running a little dry on ideas, so if anyone has some topics that they think are interesting, please let me know and I will make a list.</div><div><br /></div><div>Type to you soon.</div>Chris Schmiedekehttp://www.blogger.com/profile/05252893456286036003noreply@blogger.com7tag:blogger.com,1999:blog-21560112.post-67764924086403429952008-06-04T15:08:00.006-05:002015-09-29T12:58:15.217-05:00holding parents feet to the fireA 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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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:<br />
<br />
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 <span class="blsp-spelling-error" id="SPELLING_ERROR_0">forego</span> 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 <span class="blsp-spelling-error" id="SPELLING_ERROR_1">Friday</span> comes and dad does same thing. Mom decides to sue for enforcement or contempt for the father violating the court's order.<br />
<br />
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.<br />
<br />
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, <span class="blsp-spelling-error" id="SPELLING_ERROR_2">Carrollton</span> (Dallas County). I also handle modifications and enforcements of orders.<br />
<br />
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!<br />
<br />
Check out my new blog at www.thedallasdivorceblog.com<br />
<br />
<span style="font-size: 78%;">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!<br /></span>Chris Schmiedekehttp://www.blogger.com/profile/05252893456286036003noreply@blogger.com76tag:blogger.com,1999:blog-21560112.post-90836049914761181522008-05-16T14:02:00.004-05:002008-06-04T15:45:08.836-05:00danger dangerJust 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.<div><br /></div><div>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.</div>Chris Schmiedekehttp://www.blogger.com/profile/05252893456286036003noreply@blogger.com1tag:blogger.com,1999:blog-21560112.post-70911246734291870682008-04-14T12:13:00.006-05:002008-06-04T15:45:50.346-05:00journaling in texas divorce and modification cases<span class="Apple-style-span" style="font-size:small;">Okay, this submission will be a </span><span class="blsp-spelling-error" id="SPELLING_ERROR_0"><span class="Apple-style-span" style="font-size:small;">quickly</span></span><span class="Apple-style-span" style="font-size:small;">, but VERY important. The subject is </span><span class="blsp-spelling-error" id="SPELLING_ERROR_1"><span class="Apple-style-span" style="font-size:small;">journaling</span></span><span class="Apple-style-span" style="font-size:small;">. 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).</span><div><span class="Apple-style-span" style="font-size:small;"><br /></span></div><div><span class="Apple-style-span" style="font-size:small;">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.</span></div><div><br /></div><div><span class="Apple-style-span" style="font-size:small;"><span class="Apple-tab-span" style="white-space: pre;"><span class="Apple-style-span" style="font-size:16;"> </span></span><span class="Apple-style-span" style="font-size:small;">Client: "My ex never exercises his visitation and when he does, he is always late."<br /></span></span></div><div><span class="Apple-tab-span" style="white-space: pre;"><span class="Apple-style-span" style="font-size:small;"> </span></span><span class="Apple-style-span" style="font-size:small;"><br /></span></div><div><span class="Apple-tab-span" style="white-space: pre;"><span class="Apple-style-span" style="font-size:small;"> </span></span><span class="Apple-style-span" style="font-size:small;">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?"<br /></span></div><div><span class="Apple-style-span" style="font-size:small;"><br /></span></div><div><span class="Apple-tab-span" style="white-space: pre;"><span class="Apple-style-span" style="font-size:small;"> </span></span><span class="Apple-style-span" style="font-size:small;">Client: "Well, I do not remember all the dates, but it is pretty much a couple times a month."<br /></span></div><div><span class="Apple-tab-span" style="white-space: pre;"><span class="Apple-style-span" style="font-size:small;"> </span></span><span class="Apple-style-span" style="font-size:small;"><br /></span></div><div><span class="Apple-tab-span" style="white-space: pre;"><span class="Apple-style-span" style="font-size:small;"> L</span></span><span class="blsp-spelling-corrected" id="SPELLING_ERROR_2"><span class="Apple-style-span" style="font-size:small;">awyer</span></span><span class="Apple-style-span" style="font-size:small;">: (Rolls his eyes and sighs) "Okay well try to put something together."<br /></span></div><div><span class="Apple-style-span" style="font-size:small;"><br /></span></div><div><span class="Apple-style-span" style="font-size:small;">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.</span></div><div><span class="Apple-style-span" style="font-size:small;"><br /></span></div><div><span class="Apple-style-span" style="font-size:small;">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.</span></div><div><span class="Apple-style-span" style="font-size:small;"><br /></span></div><div><span class="Apple-style-span" style="font-size:small;">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?</span></div><div><span class="Apple-style-span" style="font-size:small;"><br /></span></div><div><span class="Apple-style-span" style="font-size:small;">A simple little task, kept up with over time, can have such a HUGE impact on your case.</span></div><div><span class="Apple-style-span" style="font-size:small;"><br /></span></div><div><span class="Apple-style-span" style="font-size:small;">Two big things to consider however:</span></div><div><span class="Apple-style-span" style="font-size:small;"><br /></span></div><div><span class="Apple-style-span" style="font-size:small;">1.</span><span class="Apple-tab-span" style="white-space: pre;"><span class="Apple-style-span" style="font-size:small;"> </span></span><span class="Apple-style-span" style="font-size:small;">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.</span></div><div><span class="Apple-style-span" style="font-size:small;"><br /></span></div><div><span class="Apple-style-span" style="font-size:small;">2.</span><span class="Apple-tab-span" style="white-space: pre;"><span class="Apple-style-span" style="font-size:small;"> </span></span><span class="Apple-style-span" style="font-size:small;">Disregard this post if you are ever the opposing party on one of my cases!</span></div><div><br /></div><div><!--StartFragment--> <p class="MsoNormal"><span style="color: rgb(51, 51, 51);font-family:Verdana;" lang="EN"><span class="Apple-style-span" style="font-size:x-small;">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.</span><span style=""><span class="Apple-style-span" style="font-size:x-small;"> </span></span><span class="Apple-style-span" style="font-size:x-small;">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!</span></span></p> <!--EndFragment--> </div>Chris Schmiedekehttp://www.blogger.com/profile/05252893456286036003noreply@blogger.com9tag:blogger.com,1999:blog-21560112.post-82417531809205696642008-03-20T14:20:00.005-05:002015-10-02T09:28:45.331-05:00residency restriction in texas<div>
As I am sitting here listening to March Madness I thought of a few items that seem to be <span class="blsp-spelling-corrected" id="SPELLING_ERROR_1">reoccurring</span> 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.</div>
<br />
<div>
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.</div>
<div>
<br /></div>
<div>
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.</div>
<div>
<br /></div>
<div>
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.</div>
<div>
<br /></div>
<div>
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.</div>
<div>
<br /></div>
<div>
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.</div>
<div>
<br /></div>
<div>
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.</div>
<div>
<br /></div>
<div>
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.<br />
<br />
<b>NOTE: I no longer post or maintain this blog. Please visit my new blog at <a href="http://www.thedallasdivorceblog.com/">www.thedallasdivorceblog.com</a></b></div>
<div>
<br /></div>
<div>
<!--StartFragment--><span lang="EN" style="color: #333333;"><span class="Apple-style-span" style="font-family: arial;"><span class="Apple-style-span" style="font-size: x-small;">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.</span></span><span style="mso-spacerun: yes;"><span class="Apple-style-span" style="font-family: arial;"><span class="Apple-style-span" style="font-size: x-small;"> </span></span></span><span class="Apple-style-span" style="font-family: arial;"><span class="Apple-style-span" style="font-size: x-small;">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!</span></span></span><!--EndFragment--> </div>
Chris Schmiedekehttp://www.blogger.com/profile/05252893456286036003noreply@blogger.com172tag:blogger.com,1999:blog-21560112.post-26272563209038922582008-01-31T13:05:00.003-06:002010-06-09T15:17:01.388-05:00grandparent’s rights in texas (Cont.)<span xmlns=""><p>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 <a href="http://www.vernerbrumley.com/">Verner & Brumley, P.C.</a> 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. <a href="http://www.vernerbrumley.com/resources.htm">This is the link</a> to their "Resources" page where the article is located. There is tons of good information on this page.<br /></p><p><span style="text-decoration: underline;">Managing Conservatorship</span><br /></p><p>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.<br /></p><ol style="margin-left: 54pt;"><li>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<br /></li><li>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 <span style="text-decoration: underline;">IF</span> the child's guardian, managing conservator, or parent is deceased at the time of the filing of the lawsuit; OR<br /></li><li>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<br /></li><li>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.<br /></li></ol><p>If any of the above four exists then there may be a case for the grandparent to seek custody or visitation of the grandchild.<br /></p><p><span style="text-decoration: underline;">Possessory Conservatorship<br /></span></p><p>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.<br /></p><p align="center"><span style="text-decoration: underline;">Original Lawsuit OR Intervention<br /></span></p></span><ol style="margin-left: 54pt;"><li>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<br /></li><li>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 <span style="text-decoration: underline;">IF</span> the child's guardian, managing conservator, or parent is deceased at the time of the filing of the lawsuit;<br /></li></ol><p>The above two allow the grandparent to file and original suit or an intervention for possessory conservatorship if either is met. </p><p align="center"><span style="text-decoration: underline;">ONLY an Intervention<br /></span></p><p>A grandparent can file ONLY an intervention for possessory conservatorship if the following two are met:<br /></p><ol style="margin-left: 54pt;"><li>The grandparent has had substantial past contact with the child; AND<br /></li><li>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.<br /></li></ol><p><span style="text-decoration: underline;">Grandparent Access (Visitation)</span><br /></p><p>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:<br /></p><ol style="margin-left: 54pt;"><li>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<br /></li><li>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<br /></li><li><div>The grandparent requesting access to the grandchild is a parent of a parent of the grandchild; AND<br /></div><p><br /></p><ol><li>The parent has been incarcerated in jail or prison during the three month period preceding the filing of the lawsuit; OR<br /></li><li>The parent has been found by a court to be incompetent (a separate lawsuit); OR<br /></li><li>The parent is dead; OR<br /></li><li>The parent does not have actual OR court-ordered possession of or access to the child.<br /></li></ol></li></ol><p>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.<br /></p><p>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.</p><p><span><span xmlns="">You can visit my blog at <span id="sample-permalink"><a href="http://chrislawyerblog.com/grandparents-rights/">http://chrislawyerblog.com/<span id="editable-post-name" title="Click to edit this part of the permalink">grandparents-rights</span>/</a> for more information about me or to contact me.</span></span></span></p><p><span style="color: rgb(51, 51, 51);font-family:Verdana;font-size:78%;" >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!</span></p>Chris Schmiedekehttp://www.blogger.com/profile/05252893456286036003noreply@blogger.com140tag:blogger.com,1999:blog-21560112.post-73904640715705946742007-10-19T14:41:00.003-05:002010-06-09T15:15:35.369-05:00grandparent’s rights in texas<span xmlns=""><p>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.<br /></p><p>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.<br /></p><p>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.<br /></p><p>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.<br /></p><p>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.<br /></p><p>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.</p><p>You can visit my blog at <span id="sample-permalink"><a href="http://chrislawyerblog.com/grandparents-rights/">http://chrislawyerblog.com/<span id="editable-post-name" title="Click to edit this part of the permalink">grandparents-rights</span>/</a> for more information about me or to contact me.<br /></span></p><p><span style="font-size:78%;">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!</span></p></span>Chris Schmiedekehttp://www.blogger.com/profile/05252893456286036003noreply@blogger.com16tag:blogger.com,1999:blog-21560112.post-22970409398711191942007-09-12T13:13:00.002-05:002008-06-04T15:47:09.800-05:00fyi…<span xmlns=""><p>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.</p></span>Chris Schmiedekehttp://www.blogger.com/profile/05252893456286036003noreply@blogger.com7tag:blogger.com,1999:blog-21560112.post-77888426379587385382007-09-12T13:00:00.003-05:002010-06-09T15:12:01.538-05:00do it yourself divorce continued….<span xmlns=""><p>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 <a href="http://www.tyla.org/">www.tyla.org</a> and more specifically the family law information can be found at <a href="http://www.tyla.org/family_law.html">www.tyla.org/family_law.html</a>.<br /></p><p>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…..</p></span><br /><br />UPDATE: I now offer online forms that are created and reviewed by an attorney (me). Once created, the documents are forwarded to you with instructions on how to proceed in representing yourself in your own divorce. Visit my website at <a href="http://chrislawyerblog.com/uncontested-divorce/">http://chrislawyerblog.com/uncontested-divorce/</a> for further information.Chris Schmiedekehttp://www.blogger.com/profile/05252893456286036003noreply@blogger.com3tag:blogger.com,1999:blog-21560112.post-33972428313995725472007-06-07T14:42:00.002-05:002010-06-09T15:10:51.606-05:00<div><div><div><span style="font-size:180%;">do it yourself divorce in Texas Part 2<br /></span><br />Many months ago we discussed where to file your divorce and how to contact the clerks for help with your “pro se” divorce. In this episode we will discuss the starting paperwork.<br /><br />If you are still unclear where to file, please review my earlier posts or log onto my website <a href="http://www.chrislawyer.com/">http://www.chrislawyer.com/</a>, go to the “Resource Links” page and click on the Texas Family Code link at the bottom of “Organizations”. From there you want to go to Title 1, Chapter 6 - Suit for Dissolution of Marriage. The specific code sections are Sections 6.301 through 6.308. These should help. </div><br /><div></div><br /><div>Again, I am not your lawyer. I don't represent you unless you retain me and sign an attorney employment contract. The forms below are just for purposes of illustration and are not intended to apply in every case, or your case for that matter. If you use these, and they are wrong for your jurisdiction, or incomplete, do not blame me...I have warned you not to use them. To get up to date forms, go to your local law library or hire an attorney!<br /><br />To begin a divorce you will need an Original Petition for Divorce. This document “petitions” the court for the relief you are seeking, or in English, tells the court what you want them to do.<br /><br />The requirements for what is to be included in the petition are found following the instructions <a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgAkVCFDKAW94CNQYV05jZIaGUqdC7hHeA6KHvtuLyrsDDg6BA-NZNLMF7AwhTY2P2aO3xBCSctgibypPkY-25CaeZ9msO99uP6qK3ZgBnWaDA1fBVTWGCPOjwBY42QbkPnefB2mw/s1600-h/Microsoft+Word+-+OPD+%283%29.jpg"><img id="BLOGGER_PHOTO_ID_5073422733299912674" style="margin: 0px 10px 10px 0px; float: left;" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgAkVCFDKAW94CNQYV05jZIaGUqdC7hHeA6KHvtuLyrsDDg6BA-NZNLMF7AwhTY2P2aO3xBCSctgibypPkY-25CaeZ9msO99uP6qK3ZgBnWaDA1fBVTWGCPOjwBY42QbkPnefB2mw/s320/Microsoft+Word+-+OPD+%283%29.jpg" border="0" /></a>above for my website Sections 6.401 and 6.402.<br /><br />Section 6.401 discusses the “Caption” for your pleading. The caption is the top part of the document as seen on the left.<br /><br />Section 6.402 discusses the requirements for the language in the “pleadings” or in English, the “paperwork”. The statute is telling you that you need to list the grounds for divorce, which has been discussed earlier in my blog. Typically that will be “insupportability” which is the no fault divorce in Texas. The statue also tells you to not put factual allegations in your document, just the general requests for the court. To the left is a sample petition for divorce. Notice that there are no facts in there like "my wife beat me on the head with a frying pan", or "I want the </div><br /><div>toaster oven from our wedding, and the lifetime supply of funnel cakes we won at the fair". No facts, just simple <a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgXEUiOW11oVR8y8UYaA9-Jz_gYPNEyDxx8-trcgEInY1x5n7EnMETGSxHL5vGgp5BDJzxaMbMVDq5XnfF_-859wOK6pY6jT8BifdRLHy2jqzNhx-pGlriwN2Ju2IwV4cc4XZ4DfA/s1600-h/Microsoft+Word+-+OPD+%282%29_1.jpg"><img id="BLOGGER_PHOTO_ID_5073425988885123106" style="margin: 0px 10px 10px 0px; float: left;" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgXEUiOW11oVR8y8UYaA9-Jz_gYPNEyDxx8-trcgEInY1x5n7EnMETGSxHL5vGgp5BDJzxaMbMVDq5XnfF_-859wOK6pY6jT8BifdRLHy2jqzNhx-pGlriwN2Ju2IwV4cc4XZ4DfA/s320/Microsoft+Word+-+OPD+%282%29_1.jpg" border="0" /></a>requests.</div><br /><div><div><br /><div>Remember, this is a simple divorce scenario with no property or children. Part 1 is the discovery level. It has to be included, but what it is is not really important at this point. If discovery is involved in your case, you need an attorney. Typically if your estate is less than $50,000 and there are no children, then it is Level 1. If there are children or the estate is worth more than $50,000 it is Level 2.</div><br /><br /><br /><br /><br /><br /><div></div><br /><br /><div><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgUZ9b4KUnwA3SUbsaRBjZpxOJDN27mPiSkxGKS1Mpmdqv3dhIgd57BT485XSsaPC0JQVX5jeQDiHANxTv_AHHJGEkWxCKA-OqY23NM8jJ6DPNZ59jsuKSwLHzM6IYm7AA-HJXHGA/s1600-h/C__Documents+and+Settings_Chris+Schmiedeke_Desktop_Microsoft+Word+-+OPD+%282%29.jpg"><img id="BLOGGER_PHOTO_ID_5073423536458797074" style="margin: 0px 10px 10px 0px; float: left;" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgUZ9b4KUnwA3SUbsaRBjZpxOJDN27mPiSkxGKS1Mpmdqv3dhIgd57BT485XSsaPC0JQVX5jeQDiHANxTv_AHHJGEkWxCKA-OqY23NM8jJ6DPNZ59jsuKSwLHzM6IYm7AA-HJXHGA/s320/C__Documents+and+Settings_Chris+Schmiedeke_Desktop_Microsoft+Word+-+OPD+%282%29.jpg" border="0" /></a>Part 2 is self explanatory. Part 3 is where you tell the court that you are in the right court because you met the residency requirement discussed above and in my prior post. Part 4 regards service. Any person sued for divorce in Texas is entitled to know that they are being sued for divorce. You can show the court that your soon to be ex knows about the divorce either by 1. having the constable serve them with papers or 2. having them sign a Waiver of Service. We will discuss this issue in later posts. Part 5 should be self explanatory and simply tells the court there has been no protective order filed. If one has, you need to make the court aware of it, and you made need a lawyer.</div><br /><br /><br /><br /><br /><br /><div></div><div><br /><div><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhSYmwA9JkfuIlbw8jxo4EV5SA5garvWwDeJoYmnpi45xS4vEMYfmPgrgSLry6JjOfTBO1k0Pl6sbpYLJcW1jbHJS-68pdOY_qZTkyscmR0Jrs8Dd92HNc0B_aCYPQ0GnpPkC-Y1A/s1600-h/C__Documents+and+Settings_Chris+Schmiedeke_Desktop_Microsoft+Word+-+OPD+%282%29+%282%29.jpg"><img id="BLOGGER_PHOTO_ID_5073416084690538434" style="margin: 0px 10px 10px 0px; float: left;" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhSYmwA9JkfuIlbw8jxo4EV5SA5garvWwDeJoYmnpi45xS4vEMYfmPgrgSLry6JjOfTBO1k0Pl6sbpYLJcW1jbHJS-68pdOY_qZTkyscmR0Jrs8Dd92HNc0B_aCYPQ0GnpPkC-Y1A/s320/C__Documents+and+Settings_Chris+Schmiedeke_Desktop_Microsoft+Word+-+OPD+%282%29+%282%29.jpg" border="0" /></a></div>Part 6 is easy, date of your demise (i mean divorce) and the greatest day of your life (separation). Kidding. Not always fun and games...but sometimes it is! Part 7 is the grounds for divorce which has been discussed in earlier posts. Insupportability is the no fault divorce. You can list other grounds if you like, but you probably need an attorney if you are concerned about grounds for divorce. Part 8, children, none according to our scenario. If you have em, your form will look different as they will be listed in the "caption" and there are other sections to include regarding conservatorship, visitation and child support. If you have child related issues, you may need a lawyer.</div><br /><div></div><div>Part 9 deals with property. This example says that there is property, but the parties are trying to reach agreements as to its division. Another example of language here would be "no community property was accumulated by the parties" or something to that effect. Part 10 is where you pray (and beg) for the court to give you a divorce. Just legal mumbo jumbo.</div><br /><div>At the bottom you would sign it in the appropriate place and you are ready to file your documents. In my next post we will discuss how to file your petition for divorce.</div><br /><div></div><div>These documents can be found at any law library in "form" books. Track down a legal library in your area and ask them for a form book for divorces. These are NOT the ones that you find at Borders, etc..., these are forms approved by the State of Texas and should provide you with the most reliable forms.</div><br /><br />UPDATE: I now offer online forms that are created and reviewed by an attorney (me). Once created, the documents are forwarded to you with instructions on how to proceed in representing yourself in your own divorce. Visit my website at <a href="http://chrislawyerblog.com/uncontested-divorce/">http://chrislawyerblog.com/uncontested-divorce/</a> for further information.<br /><br /><div><span style="font-size:78%;">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!</span></div></div></div></div></div>Chris Schmiedekehttp://www.blogger.com/profile/05252893456286036003noreply@blogger.com16tag:blogger.com,1999:blog-21560112.post-69466129908915870132007-03-07T15:32:00.003-06:002010-06-09T15:09:00.304-05:00do it yourself divorce in Texas Part 1UPDATE: I now offer online forms that are created and reviewed by an attorney (me). Once created, the documents are forwarded to you with instructions on how to proceed in representing yourself in your own divorce. Visit my website at <a href="http://chrislawyerblog.com/uncontested-divorce/">http://chrislawyerblog.com/uncontested-divorce/</a> for further information.<br /><br />This is a topic requested by a reader of this blog, and I thought it may be an interesting read and topic for some of you. This series will be a very general type of discussion of the procedures involved and may or may not apply to you. I will simply discuss a simple uncontested divorce in Texas with no children or no property. If you have children, or you have property, most of the procedures will apply to you, but your documents must have more information in them.<br /><br />Just to be clear, I am not your attorney. I do not represent you. If you would like me to represent you, go to my website <a href="http://www.chrislawyer.com/">www.chrislawyer.com</a> and send me an email. Once you have paid my retainer and signed a retainer agreement, then and only then will I represent you. Additionally, I am not advising you to take any action or refrain from taking any action...I am simply pulling back the curtain a bit to shed some light on things you may not know so that you can help yourself.<br /><br />Part 1 of this discussion will begin with you reading my prior post on "where to file". If you are reading this, we know you are married and we know you want a divorce, so you have to figure out where to file. Typically it will be in the county where you are living, if you have lived there for longer than 90 days. Again, read my prior post. If you are still unclear, then your divorce may be more detailed than this blog is set up for. You will need an attorney if the answer is not abundantly clear.<br /><br />Once you have determined where you are going to file, the first thing you should do is contact the "district clerk of court" in the county where you are going to file and ask them if they have any information packets for "pro se" divorces. "Pro se" simply means you represent yourself. Many courts have information for you that will be VERY beneficial in getting you through the process. DO NOT call the courts and ask them how to do it, or what you need to do because they will simply turn you away with the "we cannot provide legal advise" answer. All you are looking for is preprinted information that the district courts of that county may have prepared for pro se litigants (you). If they do not have any, fine. Where I practice in Dallas County and Collin County, I am pretty sure they both have preprinted information for pro se litigants when they are doing their own divorce.<br /><br />If you do not know how to find your district clerk, log onto <a href="http://www.google.com/">www.google.com</a> and enter "District Clerk _____ County" with the blank being your county.<br /><br />That is it for Part 1. I am going to keep this simple for you and for myself, so we are going to take it slowly and methodically. In Part 2 we will talk about the documents that you need to create that will need to be filed with the District Clerk of Court that you identified above.<br /><br />UPDATE: I now offer online forms that are created and reviewed by an attorney (me). Once created, the documents are forwarded to you with instructions on how to proceed in representing yourself in your own divorce. Visit my website at <a href="http://chrislawyerblog.com/uncontested-divorce/">http://chrislawyerblog.com/uncontested-divorce/</a> for further information.<br /><br /><span style="font-size:78%;">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!</span>Chris Schmiedekehttp://www.blogger.com/profile/05252893456286036003noreply@blogger.com6