Tag: Custody Orders

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.

Child Support: Additional factors for the court to consider

As discussed in a previous blog post, courts generally calculate child support based upon the Guidelines found in the Texas Family Code.

There is, however, a section of the family code that allows a court to determine if it would be “unjust or inappropriate under the circumstances” to apply the Guidelines.

Texas Family Code Section 154.123 provides “Additional Factors for Court to Consider” when determining the appropriate amount of child support.

Per the Family Code, the following are the factors that a court “shall consider evidence of”:

(1)  the age and needs of the child;

(2)  the ability of the parents to contribute to the support of the child;

(3)  any financial resources available for the support of the child;

(4)  the amount of time of possession of and access to a child;

(5)  the amount of the obligee’s net resources, including the earning potential of the obligee if the actual income of the obligee is significantly less than what the obligee could earn because the obligee is intentionally unemployed or underemployed and including an increase or decrease in the income of the obligee or income that may be attributed to the property and assets of the obligee;

(6)  child care expenses incurred by either party in order to maintain gainful employment;

(7)  whether either party has the managing conservatorship or actual physical custody of another child;

(8)  the amount of alimony or spousal maintenance actually and currently being paid or received by a party;

(9)  the expenses for a son or daughter for education beyond secondary school;

(10)  whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity;

(11)  the amount of other deductions from the wage or salary income and from other compensation for personal services of the parties;

(12)  provision for health care insurance and payment of uninsured medical expenses;

(13)  special or extraordinary educational, health care, or other expenses of the parties or of the child;

(14)  the cost of travel in order to exercise possession of and access to a child;

(15)  positive or negative cash flow from any real and personal property and assets, including a business and investments;

(16)  debts or debt service assumed by either party;  and

(17)  any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents.

As illustrated by number 17, this list is non-exhaustive. Per the Texas Family Code, all evidence on the subject is to be considered. In reality, however, whether the court will allow you to introduce evidence of any of these factors depends upon the judge before whom the case is tried, subject to review by an appellate court.

To discuss child support with any of 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.

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 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.

What if I don’t like the way it is? The basics of Child Custody Modification

In Family Law, children’s issues are very different than property issues. When dealing with children’s issues, Courts are allowed to redo their orders over and over and over again. With property, pretty much once it’s done, it’s done.

Issues involving a child are decided in what is known as a SAPCR. That stands for Suit Affecting Parent-Child Relationship.

SAPCRs can be stand-alone cases, e.g. if two unmarried people have a child together, or they can be a part of a divorce.

Children’s issues include:

  1. Custody – Joint Managing Conservator, Sole Managing Conservator, and Possessory Conservator
  2. Residency
  3. Rights to make medical decisions, educational decisions, and psychological decisions
  4. Possession schedule, including holiday schedules, summer schedules, etc.
  5. Rights concerning extracurricular activities
  6. Electronic access, including texting, phone calls, Face Time, and Skype
  7. Child Support
  8. Health Insurance payments
  9. Payments for uninsured healthcare expenses

The results of a SAPCR case – whether a stand-alone SAPCR or a SAPCR that is a part of a divorce – can be re-litigated repeatedly. Either party can file for a modification of the orders, if certain criteria are met.

In order to properly seek a modification of any non-support issues, one of three things needs to have happened:

  1. There must have been a material and substantial change in circumstances; or
  2. A child for whom modification is sought must be over the age of 12 and ready to tell the judge that he or she wants to move to the other parent’s house; or
  3. The conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months.

Texas Family Code Section 156.101.

In addition to having at least one of these three things, in order to win, the person asking for the change must prove to the court that the change is in the best interest of the child.

As you might guess, there is a lot more to it than this. Keep an eye on our blog for more information, and if you would like to discuss your case with the attorneys of the Beal Law Firm, you can call us at 817.261.4333 or 214.414.0418 anytime, or write us at lawyers@dfwdivorce.com. We are on the web at www.dfwdivorce.com

 

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.

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.

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:

  1. The reasons for and against the move;
  2. A comparison of education, health, and leisure opportunities;
  3. Whether any special needs or talents of the children can be accommodated;
  4. The effect on extended family relationships;
  5. The effect on visitation and communication with the noncustodial parent to maintain a full and continuous relationship with a child; and
  6. 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:

  1. Titles
  2. Rights & Duties
  3. Possession Schedule
  4. Child Support
  5. Health Insurance
  6. 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