Child Custody – Page 3 – beallawfirmblog

Best Interest of the Child: How Courts Decide Custody Cases

In just about any family law case involving children, courts are guided by the Best Interest Test. It is the job of the court to determine what is in the Best Interest of the children and then order it.

The courts determine what is in the best interest of the children by considering the evidence put before them. So, when facing a custody fight, a party would be wise to consider what evidence the court cares about.

Here are some of the areas that a mom, dad, grandparent, or other party seeking custody or access to the child needs to be ready to put on evidence of:

1. What are the physical, psychological, emotional, and educational needs of the child, and how does the parent plan to meet them?

If your child has a particular need, you need to have evidence ready to show the court as to how you will meet the need. For example, if your child has dyslexia, you need to have a plan for how you will address the issue.

2. Are the parents able and willing to give first priority to the welfare of the child?

A party to a custody case should have evidence of how he or she has made the needs of the child a high priority in his or her life. A history of “dumping” the children off with others at every opportunity can often look bad in open court. An unwillingness to forego drinking to excess when in possession of children can also undermine a custody case.

3. Are the parents able to work together for the child’s best interest?

Most courts want parents to work together. Judges do not want to micromanage the lives of the children at issue in their cases. If the parties are able to work together, there should be evidence to show the judge. Often, however, one or both parties to come to court with evidence of how the other party refuses to work with them. If you think the other party will claim that you are antagonistic or unwilling to work together, you need to have evidence demonstrating that you are not the trouble-maker.

4. What is the history of the parents with the raising of the child so far?

The conventional wisdom is that whoever has been the primary caregiver of the child will be allowed to continue to be the primary caregiver of the child. But that is not always true. In many cases, life will be quite different after the conclusion of a custody case — particularly a divorce. A stay-at-home mom may now enter the workforce. That may rob her of the argument that she will be able to continue to do the things with the child that she has done thus far. Additionally, if the primary caregiver is shown to be a hard-drinking drug abuser, he or she may very well lose the position.

5. How close do the parents live to each other and how close do they plan to live to each other in the future?

Traffic, school, and work schedules can make it impossible to have a shared schedule that would be possible if the parents lived within the same school district and have flexible jobs. Additionally, as children get older, there are often more challenges, since school activities tend to be more mandatory than those of the YMCA or other recreational sports outlets.

6. What are the desires of the child?

There is a lot of misunderstanding about this. Many people — even some attorneys — repeat the refrain, “Once the child is 12, he or she can decide.” That’s simply not the law. A complete discussion of the “Being 12” impact on child custody is beyond the scope of this post, but the short version is this: What a child wants to do may have some impact on a custody case, but it is NEVER the sole deciding factor.

7. Any other relevant evidence.

Finally, remember that this is not an exhaustive list. Any admissible evidence of anything that impacts the Best Interest of the child can be considered by the court.

Be ready to help your attorney with identifying and gathering the evidence on all of these issues, and you will help your case and probably save some money.

To discuss any custody issue with the attorneys from the Beal Law Firm, write us at lawyers@dfwdivorce.com or call us at 817.261.4333 or 214.414.0418. Our website can be found at www.dfwdivorce.com.

How much will my case cost? The Top Four Determining Factors

That may be the number one thing on everyone’s mind that is involved in a divorce, custody, or other family law case. If not, it’s close to the top.

Divorce and Custody attorneys hear it all the time. The follow-up question is: Why can’t you tell me how much this will cost?

The reason is that the cost generally depends upon several factors, none of which your attorney controls. Most attorneys charge an hourly rate and most of the few that don’t have a number of “outs” that allow their “flat fees” to not really end up being flat fees, so these thoughts still apply.

So the bottom line is that an attorney cannot generally tell you what your case will cost because he or she does not know how much of his or her time it will take to handle the case.

Here are a few things that impact the amount of time that a case requires and which then affect how much the case will cost:

1. What your spouse or ex does

Fighting takes time. If your spouse or ex is the type that will fight about things that are insignificant, refuse to answer questions the first time he or she is asked, and generally make things more difficult, your attorney is going to have to spend more time dealing with your case.

2. What your spouse’s or ex’s attorney does

Attorneys can disagree without being disagreeable. The Texas Supreme Court came up with a thing called the Texas Lawyer’s Creed a couple decades ago because the problem of lawyers being so disagreeable had gotten out of hand. The Lawyer’s Creed contains a number of rules, including things like this:

I will not quarrel over matters of form or style, but I will concentrate on matters of substance.

I will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party.

I will refrain from excessive and abusive discovery.

I will comply with all reasonable discovery requests. I will not resist discovery requests which are not objectionable.

I will not make objections nor give instructions to a witness for the purpose of delaying or obstructing the discovery process.

If both your attorney and the opposing attorney will follow these rules, your case will cost less. If not, it will cost more.

3. What the court does

Courts have different rules and different ways of doing things. If your court requires the attorneys to appear in person to tell the judge what the status of the case is, that will cost more than if the attorneys can send an email to the court coordinator. If the court requires a pre-trial hearing to set a case for trial, instead of a call or visit to the court coordinator, the hearing will be more expensive. If the court believes that an Amicus attorney should be appointed to look after the interest of the children in a custody case, that will cost more than if the Amicus was not appointed.

4. The decisions that you make

Finally, you will have a number of choices to make throughout the case. When you are asked a question in discovery, your decision on whether to answer fully and completely on the first request will have an impact on how much the case costs. If you are in a county with associate judges, your decision on whether to appeal the associate judge’s ruling or not will determine whether another hearing is needed. Deciding to appeal may be the right decision, but it will mean preparation for and conducting another hearing – which leads to more attorneys’ fees.

So, why can’t your lawyer tell you how much the case is going to cost? Because neither you nor your attorney know what the future holds. Neither of you knows how much time your attorney is going to have to spend dealing with your case, and without that information, there is no way to know.

There are things you can do to save money. Some of them are found in one of our previous blog posts, Six Ways to Save Money in Your Divorce or Custody Case. One of the biggest is: find a lawyer that you trust and ask questions along the way about the choices that need to be made, and how the decisions will impact both the cost on the front end — the attorneys’ fees — and the cost on the back end — the result.

If you would like to talk to one of the Beal Law Firm attorneys about representation, you can reach us at lawyers@dfwdivorce.com or call us at 817.261.4333 or 214.414.0418. You can always find us at www.dfwdivorce.com

Parental Alienation – What is it? What can a court do?

A Canadian Court got in the news this week when it took three children from their mother and gave them to their father. The news is that the court not only gave custody to the dad but cut off virtually all access of the mom. The court found that the children were victims of Parental Alienation or Parental Alienation Syndrome, also known as PAS.

So what is Parent Alienation? According to a judge speaking at the 42nd Annual Advanced Family Law seminar in Texas this last week, there’s no clear definition. Speaking as a part of a panel discussing the subject, the trial court judge stated, “what I think it is and what another judge thinks it is may be two different things,” or words to that effect.

Per the panel, some judges think that Parental Alienation does not exist unless the child states that he or she never wants to see the other parent again. Others do not have such a benchmark.

In an article entitled Differentiating between Parental Alienation Syndrome and Bona Fide Abuse-Neglect, Dr. Richard Gardner stated,

Parental alienation syndrome is a disorder that arises almost exclusively in the context of child-custody disputes. In this disorder, one parent (the alienator, the alienating parent, the PAS-inducing parent) induces a program of denigration against the other parent (the alienated parent, the victim, the denigrated parent). However, this is not simply a matter of “brainwashing” or “programming” in that the children contribute their own elements into the campaign of denigration.

The American Journal of Family Therapy. Vol. 27, No. 2, p 97-107 (April-June 1999)

Citing Dr. Gardner and others, in an article in the Journal of the American Academy of Matrimonial Law, Dr. Ira Turat described eight specific criteria for the diagnosis of PAS:

1. A Campaign of Denigration

This includes “direct and indirect criticisms, sarcasm, distorted communications, and/or other modes of interpersonal attack.”

2. An Inadequate Rationale for the Denigration

When asked, “the manipulated children offer weak, frivolous, or even absurd rationalizations for their hatred of the targeted parent.”

3. An Absence of Ambivalent Feelings

The child’s feelings about the targeted parent lack “appropriate balance….[t]he alienated parent is seen as ‘all-bad.’”

4. Alleged “Independent” Thinking

The child is encouraged by the alienating parent to believe that the thoughts are the child’s own “independent” thoughts.

5. Reflexive Support of the Alienating Parent

The child “aligns unconditionally with the parent instituting the alienation campaign.”

6. An Absence of Guilt

The child feels no guilt and “the alienated parent’s feelings are generally ignored.”

7. Scenarios Which Are Borrowed from the Alienator

The child uses “the alienating parent’s stories and explanations to articulate what is wrong with the targeted parent and as a rationale for despising the alienated parent.”

8. The Animosity Is Spread to Others Associated with the Targeted Parent

The friends and family of the targeted parent may also become subject to “unwarranted hostility” and “contempt.”

Parental Alienation Syndrome: A Review of Critical Issues, 18 J. Am. Acad. Matrimonial Law. 131, 133 (2002)

The fact that even with these criteria, courts differ in their analysis of when the syndrome exists and when it doesn’t raises serious implications for parents, of course, when considering what a court can do, if it finds that the condition exists.

As illustrated by the Canadian Court this week, trial courts have few limits with respect to how far they can go in limiting the access of a parent which they have determined is “guilty” of parental alienation. The Canadian Court limited the mother to access only in conjunction with counseling and special therapy. But that is not the limit.

Texas courts have denied parents all access to their children — no possession, no phone calls, no letters, no Skype, no Face Time, no emails…nothing.

How long can a court keep a parent away from their child completely? For as long as the court thinks is appropriate, or until an appellate court determines that the trial court has abused its discretion.

If you are a parent that has been alienated, this may be good news. If you are a parent that is currently alienating, this case — and the others that have happened that have not made the news — should stand as a stark warning.

If you would like to discuss any of this with the attorneys at the Beal Law Firm, you can reach us at lawyers@dfwdivorce.com or by calling 817.261.4333 or 214.414.0418. Our web address is www.dfwdivorce.com.

Six Ways to Save Money in Your Divorce or Custody Case

Hiring a competent attorney for any type of case is expensive. This article is written assuming that you are going to hire an attorney for your divorce, custody or other family law case — whether you should is a topic for another day.

Now that you’ve gotten an attorney, here are some ways to save money:

1. Hire a good attorney, then listen to your attorney not your spouse or ex

It is amazing and unfortunate how many people will be in a huge battle with their ex or soon to be ex, yet believe everything the ex tells them, rather than listening to what their attorney says. If you don’t trust your attorney, get a new attorney. If you have an attorney that you trust, listen to him or her. It is highly unlikely that you can rely on what your ex says, if you’re at war.

2. Do what your attorney asks

During the case, your attorney will have a great many tasks for you to do — complete a timeline, answer various questionnaires, fill out an inventory, gather documents, etc. You don’t have to do anything, but if you don’t you are going to cost yourself a great deal of money, and maybe more. At a minimum, your attorney will have to spend time trying to solve the problem another way — without the information that he or she has asked you for. If you’ve been asked for something critical, and you don’t provide it, you could lose your entire case.

3. Send documents, photos, etc. in one email, rather than a bunch of emails

Your attorney will undoubtedly ask you to send him or her documents, photos, videos, etc. If you are providing hard-copies, when you deliver them, have them organized, but not to a crazy degree. If you organize them to the point that they cannot be easily copied, worked with, etc., you are actually costing yourself money. If you are sending the items by email, it will help if you send them in reasonably sized groups. That is, don’t send 1,000 documents in one email, but even more importantly don’t send one each in 1,000 different emails.

4. Don’t have your attorney draft an agreement until an agreement is reached

If you think that you have reached an agreement with your ex, that’s great. But, having your attorney draft a 70 page divorce decree, that then gets substantially changed a number of times, can cost you an unbelievable amount of money. Often, it’s best to bullet point tentative agreements and make sure that there is really a meeting of the minds before incurring the cost of a major drafting project.

5. Don’t fight any more than necessary and don’t fight over things that don’t matter

Fighting is expensive. It takes attorney time, and that’s what attorneys sell — so time is truly money. If something is worth fighting over, the cost may be worth it, but fighting needlessly or over things that really don’t matter is a way to waste an incredible amount of money. Spending $7,500.00 of attorneys’ fees to get a couch that you could replace for $750.00 is probably a really bad expenditure of money.

6. Do not use your attorney as a counselor

Most people know this, but it’s hard to remember it. Attorneys generally cost more than mental health professionals, and no matter how much you like your attorney, if the discussion you are having does not further the cause of your case, you will be far happier at invoice time if you have spent your time counseling with a friend or mental health professional, rather than your attorney.

Finally, remember: there’s saving money on the front end, and saving money on the back end. Any competent attorney can settle your case in a few days, if you are willing to give the other side everything that he or she wants. That may save you some attorneys’ on the front end, but cost you a fortune on the back end. So the bottom line is, look for realistic ways to save money, but be smart.

I Want to Move – But I Don’t Want You to Move: Lifting the Geographic Restriction

Relocation cases are difficult. One of the main reasons is that it is hard to find a compromise. If mom and dad get a Texas divorce, and mom wants to move with the children to New York, the compromise of mom moving to Tennessee is not likely to make anyone happy. Since it’s hard to settle a relocation case, they often end up going to trial – and that can be expensive and time-consuming.

Relocation is really the other side of the geographic restriction coin. If the prior decree or order does not have a geographic restriction (also known as a residency restriction or domicile restriction), then theoretically there is no relocation case or battle that needs to be fought.

When there is a geographic restriction, any attempt by the primary parent to move beyond the restricted area, can lead to a relocation case. Relocation cases can be dealing with moves across town or moves out of State or out of the Country.

If tried to the judge alone (a “bench trial”), the issue of relocation is completely within the discretion of the court. The parties in a relocation case have a choice, however, because the issue can be tried to a jury. In fact, per the Texas Family Code, the judge cannot alter the jury’s finding on the issue.

So whether to a judge or jury, the question is: What kind of evidence will you need to win your side of the argument?

The Supreme Court of Texas in the case of Lenz v. Lenz listed a number of factors for courts to consider when making the determination of whether a request for relocation should be granted. These so-called Lenz Factors include the following:

The reasons for and against the move;
A comparison of education, health, and leisure opportunities;
Whether any special needs or talents of the children can be accommodated;
The effect on extended family relationships;
The effect on visitation and communication with the noncustodial parent to maintain a full and continuous relationship with a child; and
Whether the noncustodial parent has the ability to relocate.

When considering whether to file a relocation case or how to defend one, it is critical to determine and gather all the evidence that you can on all of the Lenz Factors.

If you need to talk to someone about geographic restriction (domicile restriction, residency restriction) and how to get it in place, keep it, or fight against it, you can contact us at lawyers@dfwdivorce.com or find us at www.dfwdivorce.com

Joint Custody – What is it?

How does Joint Custody work? That’s a question that family law attorneys get asked all the time. Answering it takes some explaining.

It’s impossible to answer this question without detailing the contents of a Texas “custody order” first.

In Texas, “custody” orders typically include these sections:

Titles
Rights & Duties
Possession Schedule
Child Support
Health Insurance
Miscellaneous provisions (like electronic access.)

The titles that the parents receive in the order used to mean everything. Now they often mean virtually nothing. Almost everyone is named as a Joint Managing Conservator.

The Rights & Duties section is where the fighting takes place in a “custody battle.” The most important right fought for is “primary” – which actually means the “right to establish the primary residence of the children.” This right can be limited by a geographic restriction, which is also known as a residency restriction or domicile restriction.

The other rights that people often fight over are: Who gets to make medical decisions? Who gets to make educational decisions? Who gets to make psychological and psychiatric decisions? These can be designated as joint rights, independent rights, exclusive rights, or exclusive after consultation rights.

Following the rights and duties section, the order details the possession schedule – who has the right to have the kids and when. The presumption in Texas basically boils down to mean that the non-primary parent gets to have possession of the children approximately 40% of the time. But, the presumption can be overcome.

After possession comes Child Support. Child Support is not technically a part of custody, but is generally addressed in orders that most people refer to as “custody orders.” The presumption in Texas is that Child Support will be set according to the Child Support Guidelines found in the Texas Family Code.

Next are Health Insurance provisions. In Texas, the presumption is that the party paying child support – typically the non-primary parent – will also pay for health insurance. Most orders detail that the parents will split the cost of all uninsured medical costs 50/50, although as with everything else, that can be negotiated or changed by the court.

Finally, there can be virtually any parenting provisions that the parents can agree on or that the court decides are in the best interest of the children. These can include provisions for electronic access – skype, facetime, texting, phone calls – choice of caregivers, choice of doctors, details regarding extracurricular activities, etc.

So, with all of that discussion: How does Joint Custody work? It’s really a question without an answer. For most people, when that term is used, it means an order that provides for a sharing of rights and possession to an approximately even degree. That would look like a 50/50 possession schedule – whether that’s week to week or otherwise – and joint or independent rights.

Understanding Joint Custody in Texas is one thing. Determining whether such an order can be obtained in any given cases depends on many factors.

To learn more about custody orders or to discuss your case, contact us at lawyers@dfwdivorce.com or find us at www.dfwdivorce.com

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