Category: Paternity

Custody: How does possession work for Firefighters?

A Firefighter can have a custom possession schedule.

When a firefighter is involved in a custody situation, some unique problems arise. Although Texas has a Standard Possession Schedule that is presumed to be reasonable in most circumstances, that type of schedule won’t work for someone working a firefighter’s schedule.

If the parents can agree on a schedule, they can work out whatever they want, but if disagreements arise, it is best to have a court order that will dictate the terms of possession.

In that case, the court can order a Firefighter Possession Schedule that has terms that will help the firefighter actually be able to spend time with his or her child. Some of these terms include the following:

“_______________is employed as a firefighter with the ________________ Fire Department. He/she works 24-hour shifts, beginning and ending at 7:00 a.m., with 48 hours off in between shifts.”

“Due to his/her work schedule, ________________ is not able to exercise periods of possession occurring on the same days of each month.”

“An annual calendar of ___________________ scheduled work days is published in advance of each calendar year.”

“IT IS ORDERED that within seven days of the day that _______________receives his/her work schedule for the following calendar year, _________________ shall provide a true and correct copy of such schedule to ___________________ via email.”

“In each instance in which the work shift of __________________ ends on a Friday, then he/she shall have the right to possession of the child beginning at the time the child’s school is regularly dismissed on the Friday on which his shift ends and ending at 8:00 P.M. on the following Saturday.”

“In each instance in which the work shift of __________________ ends on a Saturday, then he/she shall have the right to possession of the child beginning at 9:00 a.m. on the Saturday on which his shift ends and ending at 8:00 P.M. on the following Sunday.”

“In each instance in which the work shift of _________________ ends on a Monday, Tuesday, Wednesday or Thursday, then he/she shall have the right to possession of the child beginning at the time the child’s school is regularly dismissed on the day on which his shift ends and ending at the time the child’s school resumes the following day.”

In addition to these, there can be other custom terms to detail how possession will work during the summer and on holidays.

One thing to remember, however, is that a court is not required to give a firefighter any sort of custom provisions, let alone ones that the firefighter believes would be best. All of this is negotiable during a divorce or custody case. If the parties don’t settle, and leave it to the judge to decide, they may end up with a schedule that is better or worse than the one they could have gotten by agreement.

To speak with the attorneys of the Beal Law Firm about your unique situation, you can call us at 817.261.4333 or 214.414.0418, or write to us at lawyers@dfwdivorce.com. You can find us on the web at www.dfwdivorce.com.

A New Judge for the 360th District Court

Does it matter who the Judge is?

As of January 1, 2017, the Judge of the 360th District Court in Tarrant County, Texas is the Honorable Patricia Bennett. Judge Bennett replaces Judge Michael Sinha, who had been the Judge of the 360th and, the prior to that, the Associate Judge of the 360th for years.

Judge Bennett has chosen Matt Riek to be her Associate Judge, and Judge Riek will take the bench on or about January 16, 2017. Judge Riek replaces Judge Cynthia Mendoza.

Both Judge Bennett and Judge Riek are Board Certified in Family Law by the Texas Board of Legal Specialization, and each has years of experience in divorce, custody, and family law. Additionally, Judge Riek was one of the most sought after and well-respected family law mediators in the Dallas-Fort Worth Metroplex prior to agreeing to accept the position of Associate Judge.

So, with these changes, one might ask: Does it matter who the Judge is?

The short answer, particularly in Family Law is Yes!!!

Family law – meaning divorce, custody, grandparent rights, child support, spousal support, alimony, etc. – is an area of the law that, unlike most areas, is governed by the “discretion of the court.” Under Texas law, the trial court judge has wide discretion in determining a number of items in family law. What that means in simple terms is that you are not entitled to have a jury make the decision, it has to be the judge, and your chances of getting an appellate court to overturn the trial court’s decision are extremely small.

Some of the things that a family court judge gets to decide with little chance of being overturned are:

  1. How the property will be divided in a divorce – Will the property be divided 50/50 or 60/40 or 80/20 or in some other ratio?
  2. What happens to the property in a divorce – Do you get to keep the house? Or does your soon-to-be Ex? Or is there a Court Order to sell it?
  3. Who gets to live in the house while the case is pending?
  4. Who has to pay which bills while the case is pending?
  5. Who gets custody of the children while the case is pending?
  6. How much child support will be paid and by whom to whom?
  7. How much temporary spousal support will be paid, if any, while the case is pending – even if it’s for years – and by whom, to whom?
  8. Does anyone deserve Spousal Maintenance – the Texas version of court-ordered alimony – and if so how much and for how long, within some limits?
  9. What will the rights and duties be with respect to the children? Do you have a say in who the children’s doctor is? Dentist is? Surgeon is? Will there be surgery? Will the children go to a psychiatrist?
  10. On what days and at what times will you be allowed to see your children?
  11. Will you be able to Facetime with your children? Call them? Email them?

These are just a few of the things that family court judges get to decide, and as long as that Judge stays on the bench and as long as the children stay in the county, the same judge will keep deciding these issues regarding your children until they age out of the system.

So what do you think? Does it matter who the judge of your court is?

The Importance of Filing First

Being the first to file can give you advantages, regardless of how your divorce, custody, or other family law case proceeds.

If you know you’re about to be in a fight, hit first.

That advice works well on the playground, in a bar, or just about anywhere else you find yourself. It is especially true in the world of litigation, including divorce, custody and just about every other type of family law.

To understand why being the first to file matters, it is important to understand a little bit about the rules of the game you are in.

Texas family law cases are like all other civil litigation. They are governed by the Texas Rules of Civil Procedure.

Under the Rules of Civil Procedure, the party filing first is called a Plaintiff or Petitioner. The other party is the Defendant or Respondent. In family law cases – divorce, custody, modification, child support, enforcement, etc. – the terms Petitioner and Respondent are used.

The Petitioner gets a tremendous number of advantages, if the case goes to trial. The Petitioner gets to conduct his or her portion of Voir Dire (Jury Selection) first. The petitioner gets to make his or her Opening Statement first. The petitioner gets to put on his or her Case-in-Chief first, and when it comes to Closing Argument, the Petitioner gets to speak both first and last.

These advantages are huge. Why? Think about it. When you were a child and in an argument with a brother, sister, or another child, didn’t you want to get your story out to mom or dad first? Why do people interrupt each other when arguing a point to a third party? Because everyone understands the advantage of trying to convince the arbiter of the logic and correctness of his or her point, before the opponent gets a chance to sway the decision maker.

That’s exactly why the rules are in the Rules of Civil Procedure. They are intended to give an advantage. It is understood that the one going first has an easier time of persuasion. And the Rules give the Petitioner this advantage, because the rules were designed primarily for cases in which the filing party is a Plaintiff, such as a car wreck or breach of contract case.

In those cases, the Plaintiff has the procedural advantages provided by going first, because he or she has the burden of proof.

In many family law cases, however, the parties have essentially the same burden. Both are trying to convince the judge that their proposed division of property is fairer than the other side’s proposed division, and/or they are trying to convince the judge or jury that their proposal for the children is more in the best interest of the children than the other sides proposal.

But what if you don’t plan to go to trial? Most people don’t. The reality is that there is no way of knowing at the beginning of a case whether you will go to trial or not.

There are only two ways to finish the case – settlement or trial. To settle, both people have to agree. If the parties cannot agree, there will have to be a trial.

But what if you absolutely believe that you know there will not be a trial? Unless you are one of the incredibly rare people that have complete agreement from the outset, you will still be negotiating something. In that case, being the one that holds the advantage that would be present if you went to trial gives you an advantage in the negotiation.

Finally, remember that even if you believe that none of this applies to you, the case is going to have to be filed at some point by somebody – assuming that the case is going to happen – so it may as well be you. Nothing about this post should be taken as a comment on how to file. That is a topic for a future post, but as a prelude: be aware that there are very non-threatening and amicable ways to file.

Additionally, nothing in this post should be taken as encouraging any case. As the saying goes, “the two worst days of my life were the day I went to court and lost and the day I went to court and won.” Being in a lawsuit of any kind is an emotionally and financially draining proposition – if you can stay out of litigation, do.

But this post ends as it started – if you know you’re about to be in a fight… And litigation, even if amicable, is a form of fighting.

If you need to discuss any of this with the attorneys of the Beal Law Firm call us at 817.261.4333, 214.414.0418, or write to us at lawyers@dfwdivorce.com. Beal Law Firm is www.dfwdivorce.com.

Custody: Electronic Access to your child

Court Orders for phone Calls, emails, and video-chat with your child

Spending time with your child is important. Everyone knows that. But when parents are not “together,” courts often have to get involved to tell each parent when they are allowed to exercise their possession time. If the parents can agree on a schedule, courts will usually approve it.

Sometimes the non-primary parent gets a standard possession schedule, as described here, and sometimes the non-primary parent gets an “expanded” standard possession schedule, as described here. Sometimes parents get something altogether different, like a week-on/week-off schedule or other 50-50 arrangement.

But, in addition to all of that, one other option that parents have to maintain a relationship with their children is through electronic communication.

In 2007, the Texas Family Code added Section 153.015, entitled Electronic Communication with Child by Conservator. The term “conservator” is used for virtually all parents of minor children that go through the court system, whether in a divorce or custody case.

The code defines electronic communication as “any communication facilitated by the use of any wired or wireless technology via the Internet or any other electronic media…[including] communication facilitated by the use of a telephone, electronic mail, instant messaging, videoconferencing, or webcam.”

Unfortunately for parents that can’t agree on the terms of the custody order and have to get the court to decide the terms for possession and access, the statute does not provide much guidance.

Per the code, if a parent is seeking Electronic Communication access, the Judge must allow evidence to be introduced concerning:

  1. Whether electronic communication is in the best interest of the child; and
  2. Whether equipment necessary to facilitate the electronic communication is reasonably available to all parties subject to the order.

The Code goes on to state that any court order for Electronic Access shall require both parents to:

  1. Provide the other conservator with the e-mail address and other electronic communication access information of the child; and
  1. Notify the other conservator of any change in the e-mail address or other electronic communication access information not later than 24 hours after the date the change   takes effect.

Perhaps most interesting in the statute, the Code provides that in virtually any Electronic Access order the Judge must require the parties to:

accommodate electronic communication with the child, with the same privacy, respect, and dignity accorded all other forms of access, at a reasonable time and for a reasonable duration subject to any limitation provided by the court in the court’s order.

What exactly does that mean? It probably means whatever the judge hearing the case thinks that it means, since there is no case law defining the terms used.

So what should you do if you are in a divorce or custody case and want Electronic Access with your child?

  1. Ask for it;
  2. Be ready to put on evidence of why the access you seek is in the Best Interest of your child;
  3. Be ready to put on evidence of the availability of the specific type of access you seek.

If you would like to discuss this or any other custody issues with the attorneys of the Beal Law Firm, please call us at 817.261.4333 or 214.414.0418, or write us at lawyers@dfwdivorce.com. You can find us on the web at www.dfwdivorce.com.

Divorce and Custody: Possession Schedules for Children Under Age Three

When couples go through a divorce with children or just a custody case, one of the most important things to be determined is the possession schedule for the children.

If the parties cannot agree to a schedule that is in the Best Interest of the Children, the court will order a schedule.

As discussed in a prior blog post, Texas has established a Standard Possession Schedule (SPO) for use by divorce and custody courts in ordering the possession of children. By law, however, the SPO is designed to be used for children age three and over.

So what about children under the age of three?

Neither the Texas Family Code nor case law establish a standard schedule for children under the age of three.

For children that young, the Family Code states that “The court shall render an order appropriate under the circumstances” and then gives a non-exhaustive list of factors that courts are obligated to consider.

The factors detailed in the Code are:

(1)  the caregiving provided to the child before and during the current suit;

(2)  the effect on the child that may result from separation from either party;

(3)  the availability of the parties as caregivers and the willingness of the parties to personally care for the child;

(4)  the physical, medical, behavioral, and developmental needs of the child;

(5)  the physical, medical, emotional, economic, and social conditions of the parties;

(6)  the impact and influence of individuals, other than the parties, who will be present during periods of possession;

(7)  the presence of siblings during periods of possession;

(8)  the child’s need to develop healthy attachments to both parents;

(9)  the child’s need for continuity of routine; and

(10)  the location and proximity of the residences of the parties.

The code also states that the court shall consider “the need for a temporary possession schedule that incrementally shifts to” an appropriate schedule beginning at age three, with the incremental shifts based upon what would be appropriate, given the child’s age, and any evidence of “minimal or inconsistent contact with the child” by either parent.

Finally, the Code mandates the Courts consider “the ability of the parties to share in the responsibilities, rights, and duties of parenting” and “any other evidence of the best interest of the child.”

So what does a “a temporary possession schedule that incrementally shifts” (a “stairstep schedule” or “stairstep possession schedule”) look like?

With respect to Weekday and Weekend Possession, it may provide that the non-primary parent’s possession schedule is as follows:

  1. Tuesdays – On Tuesday of each week, beginning at 5:00 p.m. and ending at 8:00 p.m.
  1. Thursdays – On Thursday of each week, beginning at 5:00 p.m. and ending at 8:00 p.m.
  1. Saturdays Until the Child’s Second Birthday – Until the child reaches two years of age, on the first, third, and fifth Saturday of each month, beginning at 10:30 a.m. and ending at 5:00 p.m. on that same day.
  1. Sundays Until the Child’s Second Birthday – Until the child reaches two years of age, on the first, third, and fifth Sunday of each month, beginning at 10:30 a.m. and ending at 5:00 p.m. on that same day.
  1. Weekends Beginning on the Child’s Second Birthday-When the child reaches two years of age, on weekends, beginning at 10:30 a.m. on the first, third, and fifth Saturday of each month and ending at 6:00 p.m. on the following Sunday.

In addition to these terms, it would likely have additional time for holidays and the child’s birthday.

But, remember that stairstep schedules like that above are not mandatory. Even after considering all of the factors found in the Family Code, the Court may order that the non-primary parent have a standard possession schedule or even a 50-50 schedule, such as a week-on, week-off schedule.

If the parents don’t agree, it is up to the discretion of the court. Just because an SPO or more is not presumed the correct choice, does not mean that a court cannot decide, in its discretion, that it is the best choice.

There is a lot to know about possession schedules, as well as all of the other components of a custody order. To discuss any of this with the attorneys at the Beal Law Firm, call 817.261.4333 or 214.414.0418, or write us at lawyers@dfwdivorce.com. You can find us on the web at www.dfwdivorce.com.

Father’s Rights – Mother’s Rights: Naming the baby

Ever ask mom and dad what your name would have been if they had not chosen the one that you have? Or if you were born the other sex?

Naming a baby can be a fun topic or a stressful one. When mom and dad have different last names, and don’t get along, sometimes the court is called upon to decide a newborn’s name.

Texas Family Code Section 45.004 gives judges the power to change the name of a baby if the judge believes that doing so would be in the child’s best interest.

Either parent may file for the name change, so if mom and dad aren’t getting along at the time of the birth, and mom gives the child a name that dad doesn’t like, dad can file a petition with the court asking it to change the child’s name. On the other hand, if mom and dad are both happy with the name given at birth, and mom later changes her mind, she can file to have the child’s name changed.

Regardless of which parent files, they must give notice to the other parent of the filing. Theoretically, the name of a child cannot be changed without both parents being aware of it.

How a court decides whether it believes that changing the child’s name is in the child’s best interest depends upon the factors that the court considers. Judges are not allowed to prioritize one parent’s name over the other solely based upon whether the name belongs to the mom or dad.

Additionally judges are not allowed to decide solely based upon the tradition of giving children the father’s last name, since doing so would be consider gender biased.

Texas courts make their final decision based upon a case by case determination using factors that they believe are appropriate for a court to consider, such as:

1. Whether the changed name or the original name would best avoid embarrassment, inconvenience, or confusion for the custodial parent;

2. Whether the changed name or original name would best help identify the child with the family unit;

3. The length of time that the child has carried the original name;

4. The degree of community respect associated with the original and changed names;

5. Whether the change will positively or adversely affect the bond between the child and either parent or the parents’ families;

6. The preference, maturity, and age of the child;

7. Parental misconduct, such as support or nonsupport or maintaining or failing to maintain contact with the child;

8. Any delay in requesting or objecting to the name change;

9. Whether the parent seeking the name change is motivated by an attempt to alienate the child from the other parent; and

10. Assurances by the parent whose surname the child will bear that the parent will not change his or her surname at a later time.

Once the court has made a decision, the chances of getting the matter reversed by an appellate court are not great. So winning at the trial level is crucial.

A related issue to the naming of a baby is that of what can be done to make a parent use the name that the court has given a child, or that the child has been using up to the point that the parents split up.

On that issue, Courts have the power to order a parent “not to permit the child to use any other name while attending school except” the child’s official name.

This power derives from the fact that courts have determined that fathers have a “protectable interest” in the continued use of the name that the child has been using, so courts have the power to prevent moms from deciding that the child will use a new name after divorce or separation, such as that of a step-father.

To discuss any of this with the attorneys at the Beal Law Firm, call us at 817.261.4333 or 214.414. 0418 or write us at lawyers@dfwdivorce.com. Our web address is www.dfwdivorce.com.

Cases referred to in this post:

In re A.W.G., 2011 Tex. App. LEXIS 6854 (Tex. App. Fort Worth Aug. 25, 2011)

In re Guthrie, 45 S.W.3d 719, 2001 Tex. App. LEXIS 2175 (Tex. App. Dallas 2001)

In the Interest of Baird, 610 S.W.2d 252, 1980 Tex. App. LEXIS 4267 (Tex. Civ. App. Fort Worth 1980)