Child Custody: What is a Standard Possession Schedule?

A key part of any custody order is the possession schedule. Understanding it is the key to understanding when you have the right to have possession of your children and when you don’t. In Texas, Family Code Section 153.312 specifies what the Standard Possession Schedule is. By law, the Standard Possession Schedule (also known as […]

A key part of any custody order is the possession schedule. Understanding it is the key to understanding when you have the right to have possession of your children and when you don’t.

In Texas, Family Code Section 153.312 specifies what the Standard Possession Schedule is.

By law, the Standard Possession Schedule (also known as the SPO) sets out the minimum amount of time that is presumed to be reasonable for a fit parent to have with his or her children. Meaning that unless evidence is introduced proving why it would not be in the Best Interest of the Children to spend at least that much time with a parent, a judge must give a parent at least that much time. For a discussion of the Best Interest standard, see this previous blog post.

At the outset of virtually any possession schedule, whether it is an SPO, Modified SPO, or something else, you will find a statement that “the parties may have possession of the child at times mutually agreed to in advance by the parties.”

If the parties don’t agree on something different, then the terms of the possession schedule in the order control. The basics of the Standard Possession Schedule for the non-primary parent – when the parties live within 100 miles of each other – are this:

  1. First, Third, and Fifth Weekends.

In an SPO, the non-primary parent has the right to have possession of the children on each of the 1st, 3rd, and 5th weekends, from 6:00 p.m. on Friday until 6:00 p.m. on Sunday. The number of the weekend in a month is determined by the Friday. So the 1st Friday of the month starts the 1st weekend of the month. There are usually only four 5th Weekends per year, and often two of them get “trumped” by holiday or summer schedules.

  1. Every Thursday evening, during the school year.

It is critical to note that the Thursdays are only during the school year, even if the child does not attend school. In that case, the calendar of the school in which the child primarily resides is used for the dates of the beginning and ending of the Thursday night possessions. In the SPO, the times for the Thursday evening are 6:00 p.m. to 8:00 p.m.

  1. Every other Thanksgiving and Spring Break.

The parents alternate the Thanksgiving Breaks and the Spring Breaks each year. In the past, some schools only allowed Wednesday, Thursday, and Friday off for Thanksgiving, but now most schools appear to take off an entire week. Regardless of the length, the parent that has the children for Thanksgiving gets them for the entire time that they are out of school, per the SPO.

  1. Christmas Break alternates 1st part and 2nd part.

Under the SPO, Christmas break is divided into two parts. The first part is from the time school is out until noon on December 28th, and the second part is from noon on the 28th until school starts again. In years past, the SPO provided the dividing line on December 26th. Regardless, one parent gets the 1st part in even-numbered years, and the 2nd part in odd-numbered years and vice versa.

  1. Summer Break.

In the summer, the SPO provides that the non-primary parent keeps his or her weekends – subject to some other rules – loses their Thursdays, but gains an extra 30 days. The 30 days have to be exercised in no more than two groups of no less than seven days each. If the non-primary parent fails to give notice of what days he or she wants the children for the summer, there is a default provision, which is basically all of July.

Keep in mind that there is a lot more to it than this. And the terms talked about above do not include the Expanded or Extended provisions, which will be covered in a future blog post. Additionally, be aware that the Standard Possession Schedule only applies to children age three and over.

If you need to discuss any of this with an attorney, you can contact the Beal Law Firm attorneys at 817.261.4333 or 214.414.0418 or write us at lawyers@dfwdivorce.com. Our website can be found at 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: Changed your address? Why ask for trouble

If you have a Texas Divorce Decree involving minor children or a Texas Custody Order, it no doubt has the following language:

Each person who is a party to this order is ordered to notify each other party, the Court, and the state case registry of any change in the party’s current residence address, mailing address, home telephone number, name of employer, address of employment, driver’s license number, and work telephone number. The party is ordered to give notice of an intended change in any of the required information to each other party, the Court, and the state case registry on or before the 60th day before the intended change. If the party does not know or could not have known of the change in sufficient time to provide 60‑day notice, the party is ordered to give notice of the change on or before the fifth day after the date that the party knows of the change.

The duty to furnish this information to each other party, the Court, and the state case registry continues as long as any person, by virtue of this order, is under an obligation to pay child support or entitled to possession of or access to a child.

Failure by a party to obey the order of this Court to provide each other party, the Court, and the state case registry with the change in the required information may result in further litigation to enforce the order, including contempt of court. A finding of contempt may be punished by confinement in jail for up to six months, a fine of up to $500 for each violation, and a money judgment for payment of attorney’s fees and court costs.

You may have never read your decree or order carefully, and you may have especially not read this section. But it’s worth taking a look. Why? Because it imposes a duty on you that, if violated, can lead to jail time.

Is it likely that you will go to jail for failure to provide the notice required by this provision? There is no way of knowing for sure. But why take a chance.

So, in order to help eliminate any chance that this provision will lead to trouble, follow these links to forms that you can use to meet your obligation. – .pdf versionWord version.

If you need legal help with any other Divorce, Custody, or other Family Law related issues, you can call the attorneys of the Beal Law Firm at 817.261.4333 or 214.414.0418. You can also write us at lawyers@dfwdivorce.com or find us on the web at www.dfwdivorce.com.

Divorce: Five Things to Think About before it happens

Divorce attorneys are often asked, “What should I do before I file my case?”

Or, “I know my spouse is about to file for divorce, what should I be doing?”

The question is asked, sometimes, assuming that the attorney will give some super-secret advice about how to effectively hide assets or destroy evidence. An ethical attorney won’t give that type of advice, because each party in a divorce is obligated to disclose everything he or she knows about the assets, their value, and where they are. If they have been disposed of improperly, the result can be bad for the one that did the disposing.

Additionally, destroying evidence can be considered spoliation or obstruction of justice, both of which can lead to very bad results.

So what should you do, if you know that a divorce is on the horizon? Consider these five things.

  1. Check for Spyware.

In this day and age, if anyone has had access to your computer, cell phone, iPad, etc. he or she can download software that will allow him or her to know everything that you are doing on your devise or computer. What that means is that changing passwords after the Spyware has been loaded won’t do any good to keep your spouse from knowing everything you and your attorney say to each other. So, if you believe that a divorce is on the way, a good first step to think about is getting all of your devices to a computer expert to have them checked for Spyware.

  1. Change passwords.

Don’t get confused by Step One into thinking that changing passwords is useless. Changing passwords on anything and everything is a great Step Two. Before you do though, make sure you prepare to do it right by getting a password keeper set up on a device that you know is secure. Then, set up strong, unique passwords for every account and device that you have.

  1. Get records of all of your assets and keep them in a safe place.

This is good advice for everyone, all the time – but especially someone about to go through a divorce. Keep in mind that “all your assets” means everything, regardless of whose name is on it. Get copies of all records for all accounts, whether they are checking, savings, money market, CD, 401(k), IRA, or other. Get all records for any and all pensions. Make a list of all significant property that you or your spouse have any ownership interest in. Take photos of everything that matters, including collectables, guns, coins, art, etc. Get records of any safe deposit box or storage facility. Get records of everything, and if you can’t get records of everything, get records of everything that you can.

  1. Stop posting things on Social Media.

Social Media posting may be the single worst thing that people do in divorce. Nothing good can come of it, and plenty of bad can. So stop. You have no right to privacy in a divorce with respect to things that you’ve posted, whether publicly or just to your close friends. Whether you can delete things that you have already posted is a matter of when you do it, why you do it, and what it is. The law is clear, however, that if are in a divorce and you delete postings in an effort to destroy evidence that could be used against you, you are committing spoliation and possibly obstruction of justice – both of which are bad.

  1. Think about Moving assets.

As long as you are not under any court orders that state otherwise and you are not committing fraud, you are entitled to protect your property by moving things like keepsakes and other irreplaceable things to a place where they can’t be destroyed. Whether you should move money and other assets is a tougher call. You may be legally entitled to do so, but you may create a problem that you otherwise don’t have. On the other hand, if you don’t make sure that you can survive, if your spouse moves, disposes of, or hides everything that he or she has access to, you may regret it later. This subject is a good one to get specific legal advice on from a good attorney that you can trust.

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. 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.

Divorce: How are stock options and restricted stock handled?

According to Texas law, at the time of divorce, all community property is divisible. Moreover, all property owned by the parties in a divorce is presumed community until and unless proven to be separate property.

The court has no jurisdiction to divest either party of his or her separate property. Jurisdiction means power. Divest means take. So the court has no power to take anyone’s separate property from them.

Employer Provided Stock Options and Employer Provided Restricted Stock that are owned at the time of divorce are divisible, just like any other property. The community portion is divisible, the separate portion is not.

So, in order to determine how much of the Options or Stock is divisible, you must first determine how much of it is separate and how much of it is community.

The Texas Family Code explains how to perform the calculations to find out what is separate and what is community.

Pursuant to Section 3.007 of the Code:

A spouse who is a participant in an employer-provided stock option plan or an employer-provided restricted stock plan has a separate property interest in the options or restricted stock granted to the spouse under the plan as follows:

if the option or stock was granted to the spouse before marriage but required continued employment during marriage before the grant could be exercised or the restriction removed, the spouse’s separate property interest is equal to the fraction of the option or restricted stock in which:

the numerator is the sum of

the period from the date the option or stock was granted until the date of marriage; and

if the option or stock also required continued employment following the date of dissolution of the marriage before the grant could be exercised or the restriction removed, the period from the date of dissolution of the marriage until the date the grant could be exercised or the restriction removed;

and

the denominator is the period from the date the option or stock was granted until the date the grant could be exercised or the restriction removed; and

if the option or stock was granted to the spouse during the marriage but required continued employment following the date of dissolution of the marriage before the grant could be exercised or the restriction removed, the spouse’s separate property interest is equal to the fraction of the option or restricted stock in which

the numerator is the period from the date of dissolution of the marriage until the date the grant could be exercised or the restriction removed; and

the denominator is the period from the date the option or stock was granted until the date the grant could be exercised or the restriction removed.

The Code also provides that the computation must be done separately “for each component of the benefit requiring varying periods of employment before the grant could be exercised or the restriction removed.”

So basically, the value of the Options or Stock that is attributable to the period before marriage or after marriage is separate property. The amount attributable to the time that a person is married is community. These concepts are completely consistent with the analysis done for all property to determine whether its character is separate or community.

If you would like to discuss your situation with the attorneys at 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.

Five Simple Things You Can Do to Save Money in Divorce

Divorces can be expensive. Some get to be very expensive. There are things that happen in a divorce that you can’t control, and others that you can.

Listed below are five things that you should be able to control that should save you some money as you go through a divorce. All of these are based upon one simple idea — time is money. When paying an attorney by the hour, the more attorney time you can save, the more money you will save yourself.

1. Respond to your attorney.

Your attorney is going to ask you for a great many things. Sometimes it’s as simple as “are you available for a hearing two weeks from Thursday,” and sometimes it’s for more complicated things, such as “I need copies of all of your bank statements for the last few years.” Whichever it is, ignoring the request will lead to your attorney possibly having to have several more conversations or send several more emails. He or she may have to let the opposing counsel and the court know about the status of whatever it is that he or she is seeking. He or she may have to file a motion or seek an agreed extension of some deadline. All of that takes time, and will ultimately cost you money. Responding quickly and completely will help your attorney help you and save you money in the long run.

2. Don’t fight over silly things.

Some things are worth fighting over — like are your children going to live near enough to you that you can have a meaningful relationship — and some aren’t — like who is going to get the new TV and who is going to take the old one. Fighting can mean that your attorney has to write emails or make calls repeatedly with both opposing counsel and the court, as well as you. Very quickly, the cost of fighting over something that is not worth fighting over can get to be very high.  The smart thing to do, when possible, is make a business decision. Determine in advance how much various things are worth, then do the math on whether it’s worth fighting over them.

3. Organize your evidence.

This one involves a rule of reason. If you bring in all of your bank statements, mixed with all of your receipts, mixed with all of your emails, all in one big box, someone is going to have to spend an enormous amount of time sorting those documents out. If you do it, you save attorney or legal assistant time. If not, you will end up paying your lawyer or his staff. But, the rule of reason part is this: Don’t be so “organized” that you have all of your documents in individual sheet protectors inside of three ring binders. In all probability, your attorney will need to number and copy your documents. The time that it takes to get the documents ready for the copy machine can get expensive, if you’ve overdone it with the “organizing.”

4. Don’t violate court orders.

If you are under Standing Orders, a Temporary Restraining Order, Temporary Orders, or a Protective Order, read the document or documents carefully. Know what you can do and what you can’t. If you violate the orders, you can cause your attorney to have to have multiple conversations with opposing counsel and the court, even if you never end up in a contempt hearing or enforcement hearing.

5. Recognize the realities of the system you are in.

Courts each have their own ways of doing things. Some courts only allow 20 minutes per side for Temporary Orders hearings. Some allow all day. Some allow multiple days. Most courts don’t like repetitive evidence — in fact it’s objectionable. One way that some people cost themselves an enormous amount of money is by not realizing that there are limits to the presentation of evidence. Your attorney will probably want to know if you have witnesses that can support your side of the case. When asked, give as many names as the attorney needs, and prioritize your witnesses, from most important to least. But, what you don’t want to do is give the lawyer 25 names, when he only wants 3-4, and then insist that he “use” all of them. Often there is no way to use as much evidence as the client would like. Let your attorney advise you on the realities of the situation, then adjust to that. Don’t expect reality to adjust to your desires, or you will cost yourself unnecessary legal fees.

There you have it. Do these five simple things and you will almost certainly save yourself some money.

If you’d like to read other posts on this topic click here and here.

To discuss a legal issue that you are concerned about with the attorneys at Beal Law Firm, please write us at lawyers@dfwdivorce.com or call us at 817.261.4333 or 214.414.0418. You can find us on the web at www.dfwdivorce.com.