Tag: Custody Orders

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.

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?

Custody and Support: Five Simple Answers for Christmas Related Questions

But what if…

  1. Can I count the Christmas presents that I buy as child support?

No.

Generally speaking, court-ordered child support can only be discharged according to the terms dictated in the order. In fact, most orders contain a warning that says:

                No Credit for Informal Payments

                IT IS ORDERED that the child support as prescribed in this decree shall be exclusively discharged in the manner ordered and that any direct payments made by ______________ to ______________ or any expenditures incurred by ________________ during his/her periods of possession of or access to the child, as prescribed in this decree, for food, clothing, gifts, travel, shelter, or entertainment are deemed in addition to and not in lieu of the support ordered in this decree.

  1. If my ex agrees that I don’t have to pay all of my child support this month because I will be buying Christmas presents, is that true?

No.

In 1991, the Texas Supreme Court determined that the Family Code prohibited parents from making agreements to “modify court-ordered child support without court approval.”

Meaning that any agreements with your ex regarding child support, even if in writing, are unenforceable.

  1. If my ex does not let me have the children like he/she is supposed to for Christmas, can I withhold child support?

No.

A standard warning that is to be included in all support orders is as follows:

REFUSAL BY A PARTY TO ALLOW POSSESSION OF OR ACCESS TO A CHILD DOES NOT JUSTIFY FAILURE TO PAY COURT-ORDERED CHILD SUPPORT TO THAT PARTY.

So, regardless of whether the denial of access is a few minutes or the entirety of Christmas vacation, court ordered child support is still due. Whether the court will later put your ex in jail and give you make-up time is another matter for another day.

  1. If my ex is behind on child support, do I still have to give him/her the children for the Christmas possession?

Yes.

Another standard warning that should be in all orders is:

FAILURE OF A PARTY TO PAY CHILD SUPPORT DOES NOT JUSTIFY DENYING THAT PARTY COURT-ORDERED POSSESSION OF OR ACCESS TO A CHILD. 

So, regardless of whether your ex is ten payments behind in child support, one payment behind, or just late with this month’s payment, the court ordered possession is to be allowed. Note, however, that unlike child support, possession can be informally modified by the parties.

  1. If my court order does not contain all of the warnings discussed in this blog, is the answer different for me?

No.

These warnings simply state the law. And the law is the same, whether you have been warned or not.

To discuss any of this with the attorneys at the Beal Law Firm, call us at 214.414.0418 or 817.261.4333, or write us at lawyers@dfwdivorce.com. We are on the web at www.dfwdivorce.com.

The Many Parts of a Texas Divorce

In a previous post, we discussed the procedural parts of a Texas Divorce. In this post, the goal is to identify the substantive parts of a Texas Divorce.

Divorces are interesting types of cases, because unlike most cases, they have discrete parts, each of which needs their own jurisdictional analysis. That is, a court may have the power to deal with one part of the case, but not with another.

Not all cases are the same, so some of these parts may not be present in your case, but since there is a great deal of misunderstanding about how divorces work, it is a good idea to at least be aware of them, to be sure that they don’t belong in your case.

1. The Status of the Marriage

The Status of the Marriage is both the most important and least important part of the case – it is the judicial determination of whether the parties are divorced. As long as one or both parties is a resident of Texas, the court generally has the power to make this determination. Since Texas is a “no-fault” State, the court can grant the divorce without reference to either party being at fault. But, either or both parties can allege that the divorce should be granted on “fault” grounds, such as adultery or cruelty.

2. Division of Property

This part of the case involves how the marital estate is divided. The court does not have the power to take either party’s separate property as a part of the division of property. The court does have the power to divide the community estate, as long as the court has personal jurisdiction over the parties. Understanding personal jurisdiction can be tricky, so if either party does not reside in Texas, it is important to get competent legal advice on this topic.

As a part of the division of property, the court may assign the payment of debts, but it is important to note that the court cannot adversely affect the rights of third-party creditors. That is, if the creditor could sue you before the divorce if the debt was not paid, then the creditor will be able to sue you after the marriage if the debt is not paid – there is nothing you can agree to or that the court can order that can change that.

3. Custody

Custody is a legal word with a fuzzy definition. Basically, if there has been a child born or adopted during the marriage that is still a minor or disabled, or both, the court will need to deal with issues of conservatorship, geographic restriction, rights, duties, and possession of the child.

There are a great many presumptions that aid in the predictability of this section, but unlike property division, a jury can be used to decide the ultimate issues of custody, i.e. Primary Conservatorship and Geographic Restriction.

The analysis of whether the Court has the power to issue a valid, binding custody order can be very confusing. The answers are found in a complicated piece of legislation known as the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”).

4. Child Support

Although often even courts treat Child Support as though it is a simple mathematical analysis, under the family code it is not. The statutory presumption is that guideline child support should be used, but there are a great many other factors that the court should consider.

See this previous post for a discussion of those other factors.

5. Spousal Maintenance

Texas has had contractual alimony available for a long time, if not forever. Contractual alimony, however, is only obtained when one party or the other agrees to provide cash flow to the other after divorce.

Spousal Maintenance is the term that is used for the type of post-divorce, non-child-support, non-property division payments that the court can order over the objection of the soon-to-be-paying party. In order to get Spousal Maintenance, the party seeking it must prove a great many things, but the starting point is that he or she must fit in one of three categories:

  1. Be disabled;
  2. Be the victim of domestic abuse; or
  3. Be married for over ten years and not be able to provide for his or her minimum reasonable needs.

6.Tort or Other Cause of Action Against Your Spouse

Although many people don’t realize it, you can sue your spouse, in addition to divorcing him or her. To do so successfully, there must be a valid cause of action. That is, the spouse must have done something that amounts to a Tort or other type of cause of action.

Viable causes of action include assault, battery, false imprisonment, breach of fiduciary duty, and intentional infliction of emotional distress (also known as intentional infliction of mental anguish).

Whether one spouse should sue the other is a very complicated question, and competent legal advice is critical in making a decision on how to proceed.

To discuss your case with the attorneys of 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.

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.

Custody: What is the Extended or Expanded Standard Possession Schedule?

As discussed in a previous blog post, Texas has a Standard Possession Schedule that is part of the Texas Family Code. The Standard Possession Schedule (“SPO”), for the most part, limits the time that the non-primary parent has a right to see his or her children during the school year to 1st, 3rd, and 5th weekends from 6:00 p.m. Friday to 6:00 p.m. Sunday – and very few months have 5 weekends.

The good news for non-primary parents that want to see their children more than the SPO provides is that the Texas Family Code Section 153.317 provides for “Alternate Beginning and Ending Possession Times,” that can create what is commonly known as an Extended or Expanded Standard Possession Schedule.

The Code states, in part:

“If elected by a conservator, the court shall alter the standard possession order. . . to provide for one or more of the following alternative beginning and ending possession times for the described periods of possession, unless the court finds that the election is not in the best interest of the child:

(1)  for weekend periods of possession. . . during the regular school term:

(A)  beginning at the time the child’s school is regularly dismissed;

(B)  ending at the time the child’s school resumes after the weekend; or

(C)  [both] beginning at the time described by Paragraph (A) and ending at the time described by Paragraph (B);

(2)  for Thursday periods of possession [during the school year]. . .:

(A)  beginning at the time the child’s school is regularly dismissed;

(B)  ending at the time the child’s school resumes on Friday; or

(C)  [both] beginning at the time described by Paragraph (A) and ending at the time described by Paragraph (B);

(3)  for spring vacation periods of possession . . ., beginning at the time the child’s school is dismissed for those vacations;

(4)  for Christmas school vacation periods of possession . . ., beginning at the time the child’s school is dismissed for the vacation;

(5)  for Thanksgiving holiday periods of possession . . ., beginning at the time the child’s school is dismissed for the holiday;

(6)  for Father’s Day periods of possession . . ., ending at 8 a.m. on the Monday after Father’s Day weekend;

(7)  for Mother’s Day periods of possession . . .:

(A)  beginning at the time the child’s school is regularly dismissed on the Friday preceding Mother’s Day;

(B)  ending at the time the child’s school resumes after Mother’s Day; or

(C)  beginning at the time described by Paragraph (A) and ending at the time described by Paragraph (B); or

(8)  for weekend periods of possession that are extended . . . by a student holiday or teacher in-service day that falls on a Friday, beginning at the time the child’s school is regularly dismissed on Thursday.”

As important as the optional extra time is, possibly the most important part of the Code provision is that the choice of getting the extra time belongs to the non-primary parent, as long as the election is made properly and timely, unless “the court finds that the election is not in the best interest of the child.”

That means that if a non-primary parent is denied any of the extra time he or she seeks, the court can be made to explain its denial, and the denial is subject to review by an appellate court.

Different people measure time spent with children differently – some count the nights, some count the hours, some count the “quality time.” The real good news with the expanded schedule provided by 153.317 is that by some measure, even the “loser” of a custody battle can get to have his or her children for almost 45% of time – depending upon how it’s counted. Whether the parent can actually exercise the time depends in large part on the distance between the parents – which to some extent is governed by whether a geographic restriction exists. For more on that, see the prior blog post.

To discuss your custody issue with the lawyers of 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: 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 version – Word 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 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)

Divorce | Custody | Support: What do I have to do if I get served?

Many divorce and custody cases begin amicably. Some stay that way.

Even some of those that begin amicably have one party or the other served with papers at the beginning of the case. Sometimes it’s a strategy move, sometimes it’s a miscommunication between the attorney and the client, and sometimes it’s a mistake.

Most of the time it’s none of those. Most of the time the service is done because the filing party does not want the case to be amicable or is not sure that it can be.

Service of Process means service of the Petition that has been filed along with a Citation from the court. The Petition plus the Citation equals Process.

In Texas State Court, if you are served with Process, you have a certain amount of time in which to answer the suit. That amount of time is until “10:00 a.m. on the Monday next after the expiration of 20 days from the date of service.”

This time period is different for cases filed outside of Texas, and for Federal Cases. Virtually everything in family law – divorces, custody cases, child support cases, grandparent cases, etc. – is done in State Court.

So, if you get served with a Texas divorce or custody petition, even if you are outside of Texas, your deadline to answer is 10:00 a.m. on the “Monday next after the expiration of 20 days from the date of service.” Failure to answer by that time can put you in default.

If you are in default, you are subject to a default judgment. A default judgment is like losing by forfeiture in a sporting event.

In sports, if you are scheduled to play and you don’t show up, you lose by forfeit. In law, if you have been served and you do not answer, you can lose by default.

If you lose by default, it means that only the opposing party is presenting evidence to the court. In a divorce, a person in default could end up with little or none of the assets of the marriage – including his or her own 401K or pension. In a custody case, including a custody case within a divorce, a defaulted party may end up with little time with the children, higher than ordinary child support, and few rights.

It doesn’t take much to not get defaulted. If you have been served, all you have to do is answer the suit. An answer is basically any filing with the court that puts the court on notice that you do not want to have a default judgement taken against you.

If an answer is filed, it must be filed with the court in which the case is pending, and should be served on any other parties to the case or their attorneys. To serve it on the other party, if he or she has an attorney, all you have to do is fax it to them. Keep your proof that you sent the document by fax.

But, there are times when you don’t want to file an answer. There are times that you want to file more than an answer. And there are times that you need to file something prior to your answer and then an answer. It can get confusing.

If you need to discuss your situation with an attorney, contact the Beal Law Firm, PLLC at lawyers@dfwdivorce.com or call 817.261.4333 or 214.414.0418. You can find us on the web at www.dfwdivorce.com.

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