Can CPS Terminate Parental Rights Based on Old Events?

As always, I can give advice only about cases pending under Texas law, since I am licensed within only that state. CPS in other states may be similar or dissimilar to Texas CPS

The Department of Family and Protective Services (of which CPS is a part) states in their publications that:

“(w)e promote safe and healthy families and protect children and vulnerable adults from abuse, neglect, and exploitation.

Values

Accountable: We act with a sense of urgency to deliver results in an accountable, ethical, and transparent manner.

Respectful: We recognize the value of each person and act timely, value privacy, and treat all with respect.”[1]

In light of those express commitments to act “urgently,” and “timely,” we might expect that if CPS had concern(S) about the safety and welfare of children, then they would focus on recent events involving those children. In our experience, however, that is not always the case.[2]

Our courts have held that allegations of abuse or neglect against a parent must not be too remote in time, if termination of parental rights is sought because of that behavior. And, if you think about it, that makes sense: something that a parent did or did not do years ago does not bear strongly on a child’s current living circumstances. Put another way, “termination proceedings should be based on facts that are fresh enough to apply to the children at the time of the trial.”[3]

Texas CPS has to show not only some act of abuse or neglect by the parent, but also, that the termination is in the current “best interest” of the child. So, something that happened long ago does not provide solid evidence of what is currently in a child’s best interest. Things change over time; kids mature, and their needs change.

So, what are some examples of time periods that our courts have found to be too long past (remote) to support a current termination of parental rights? Well, in our research we have learned that our (Texas) courts have, so far, not defined that time period precisely. They have, however, determined in one case that that five (5) years between the act of abuse or neglect, and the termination trial, was too long. Another Texas court has held that three (3) years was too remote to support a termination finding.

Consistent with those cases, the Texas legislature has enacted legislation in Texas which requires generally (as with most things dictated by a law, there are exceptions to the general rule) that termination cases end within one year of when they are begun. But, of course, even if they meet that standard, the acts of abuse or neglect may still be found by a court to be too remote if the case was not started until a long time after the incident(s) occurred.

So, CPS should investigate a case soon enough after alleged abuse or neglect occurs; and, begin and complete their legal case timely. The burden of accomplishing those things fall on CPS, and not on the parents.

As with most legal matters, it is important to consult with an attorney for legal advice as soon as possible. Once a case has been filed, you may be entitled to have legal counsel appointed for you.

As always, we wish you the best, and hope that all kids are treated with love and respect.

Until next time, please take care of yourself and your loved ones!

 

Best regards,

 

David

 

[1][1] Texas Child Protective Services Handbook,” Section 1110

 

[2] Granted that some things, such as our government’s response to a pandemic, is out of the control of CPS

[3] This language is from a brief that we prepared and filed

 

 

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Can I Change my Child Custody Order?

So, you have a child custody (or conservatorship) order. It was arrived at either by initial agreement of the parties, informal negotiation, mediation, or after a trial. And now, one of the parties wants to change it. Can that be done?

It is widely reported that each of the United States, and each territory of the United States of America, provides for modification of child custody orders under certain circumstances, such as a substantial change in the circumstances of a child, parent or other relevant party. The requirements for doing so vary from state to state. I am licensed to practice law in the State of Texas, and in no other. Accordingly, my comments will focus on, and be limited to, Family Law proceedings within the Texas court system. While these comments may or may not also apply to another state or territory, it is important for a party who is considering this issue to be advised by an attorney who is properly licensed within the relevant state.

In Texas a final “custody”[1] order may be changed under a few different conditions which may have arisen since the last custody order was entered[2]

The most common reason that a child custody order is changed is because of changed circumstances of a child, parent, or other party. The change(s) must be material and substantial, to the extent that the current order is no longer in the child’s best interest. Further, case law provides that the change must be something not anticipated by the current order. So, for example, the mere fact that a child has aged, and/or is in a different grade or school is not, by itself, a sufficient change to warrant a modification of custody. An example might by the child’s development of a learning disability or emotional condition that negatively affects the child; and, further, which is unacknowledged, or unaddressed, by the parent currently having “custody.” The types of changes that may be material and substantial vary from family to family. The question is whether that change is something that should be addressed by the court, because the current orders do not properly address it.

Another reason why a custody order can be changed is the designation of a child who is twelve (12) years or older. A child of that age may express his or her wish regarding custody. Importantly, because the best interest of the child is still the required finding for the custody change to be made, the court does not have to follow the wishes of the child. A child might prefer a parent who does not ensure that school assignments are completed; or, one who allows the child to abuse drugs or alcohol. It is unlikely the court would find the child’s desire to be in his or her best interest in those circumstances.

Finally, custody may be changed if the parent with custody voluntarily relinquishes possession to another, for six (6) months or more, unless that relinquishment was due to the parent’s military service. Of course, the child’s best interest is still paramount.

Child custody matters can be emotionally fraught. Having a good emotional support system, along with wise legal advice, can be helpful in getting though that minefield.

Until next time, take care of each other, and love those kiddos!

 

[1] ”Custody” in not a formal term used within the Texas Family Code. Arther the term “conservatorship” (a Trust term) is used to describe those entrusted with the care of a child or children. And, the right to designate the Primary Residence of a child is awarded to one of the conservators. Being a conservator who has that exclusive right is the equivalent of what most people think of when they used the term “custody.” So, for ease of understanding, it will be used herein.

[2] If the change of “custody” is sought within one year of the entry of the effective order, then there are additional circumstances that must be shown, besides what is discussed herein today, This is a topic for a future post, so stay tuned!

Important Factors in Cases Requesting Protective Orders

Introduction:

A protective order is a court order that can be entered by the court to protect a victim of domestic violence, assault (sexual or otherwise), abuse, stalking, and/or threats by a family member, household member, or (current or former) dating partner. We have written more about these cases here: Legal Protections for Family Violence (Part 1) and here Legal Protections Available for Family Violence. A review of those posts provides context for this one. Today, we will discuss some of the considerations that are pertinent to these types of cases.

Discussion:

Cases in which Family Violence has been alleged by one partner against another raise issues that are not usually present in other types of cases; issues such as (often) a lack of witnesses who might corroborate or dispute the allegations; sometimes, either a lack of physical evidence, or evidence which is ambiguous, such as whether physical marks, bruises, scratches, and so on are “defensive,” i.e. were inflicted by a person trying to protect themselves, or were caused by an event unrelated to an encounter between the parties; or, even whether they were self-inflicted. So, it is important for the person requesting the Protective Order, as well as the person who is alleged to have committed Family Violence, to focus on the details of the case. These cases are not ones “to wing,” or to do “off the cuff.”

As discussed in the first article linked above [“Legal Protections for Family Violence (Part 1)], Texas has provisions for Emergency Protective Orders, which are typically granted upon the arrest of a person for a Family Violence crime (such as Domestic Assault), and usually last for sixty-one (61) days. Those are granted without a hearing, based solely on the arrest documentation provided by the police department. Those relatively short-lived cases are not what this post is addressing. Instead, it’s the potentially much longer Protective Orders that can be granted by a District Court, after application and hearing, that we are focusing on today (these cases are discussed within the second article linked above, (“Legal Protections Available for Family Violence”).

The investigation of the legal case (for both parties) typically begins with the police report (“Incident Report”). In Texas, the Application for Protective Order will almost certainly contain a report from one or more law enforcement officer who investigated the incident. The details of this report are important, and if they don’t align with other case materials, such as medical reports, witness statements, photographs, audio/visual recordings (and so on), then those details are suspect, and can be questioned. A skilled lawyer, defending the person against whom the allegations are made, will point-out those discrepancies to the court, so as to cast doubt on the reported incident of Family Violence. And, a skilled lawyer prosecuting the case will address and explain those discrepancies (to the extent that can be done) before the defense lawyer has the opportunity to exploit them.  Details, and explanations of variances within those details, are important.

Next, any witnesses who might either support or refute the case allegations should be approached, and, if possible, interviewed. If a witness refuses to speak with either lawyer, then that lawyer should be sure to provide evidence that the witness seemed to be favoring one party’s ability to investigate the case, instead of providing truthful information to everyone who sought it. This raises the issue of the impartiality of the witness.

How do the witness statements compare to the statement given by the person claiming to be the victim? If there are more than one witness, do they agree with one another on all important details? Do the witness statements conform with the officer’s report, and with the physical evidence, visual/audio recordings, photographs, etc.? Are there reasonable explanations for the variances? Is there evidence that witnesses discussed the events in question with one another, to arrive at a consensus narrative?

I next want to know whether the person making the claims in the case sought medical treatment. If so, was there a diagnosis made? Is there a medical report confirming that the wounds, marks, etc. are consistent (or inconsistent) with the patient history (what the patient told the health care provider)? When this information exists, it is often helpful to one side or the other. Consequently, both sides need to be aware of its existence.

Finally, I want to see how the parties communicated with one another running up to their important encounters, and whether they communicated afterwards. I expect to find a text string between the parties when I get one of these cases. What did they say to one another before, during, and after the event(s) in question? This is often quite helpful in determining what likely did, or did not, occur between them.

Protective Order cases can have a significant impact on both parties. And so, I encourage everyone involved in one to take it seriously. The court wants to grant a Protective Order when appropriate, but not grant one when not proper. Our job is to help the court see what is right in this particular case.

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Keeping Children Safe

Deciding to divorce is a big decision. Once it has been made, proper preparation is, like with so many things in life, a key to making the outcome more likely to be positive for you and your family. And, yet, because it can be such an emotional decision, many people do not develop a plan for successfully moving through the process. This piece is designed to guide you in developing that plan.

Initially, it is important to go through this process before beginning the divorce. That is when issues can be pondered without having the pressure of a pending divorce affecting your decision-making

Step 1 Who will be your allies during this process? Divorce can be emotionally-taxing. One or both spouses may make emotional decisions that create chaos, confusion, or worse. It is easier to get through those times with allies—family members and friends who can provide support. It is also important to have people who you can talk to regularly; esp. if other family members and friends decide to not be there for you at this time. Having the support of allies help you to better weather the storms of your case.

Step 2 Do you understand the property matters? Do you have, or can you get, documentation (hard copy and/or virtual) pertaining to all debts and assets of the family? Car titles, mortgage statements, retirement and brokerage account statements, bank or credit union statements, loan applications, credit card bills, health and life insurance policies, and tax returns are all important to have. Do you know where to obtain any of those documents which you do not already have? Is there anyone who can assist you with this process? Be sure to store electronic versions of those documents in the cloud (such as via OneDrive, Dropbox, Google Drive, or Box), so that you can access them from anywhere that you have an internet connection

Step 3 Who provides services to the home? You should either know, or learn, the identity of the gas company, the electricity provider, and the cable or satellite provider, for the home. Are there other service providers that your family uses, such as for landscaping, lawn maintenance, or babysitting? Do you know how all of those bills are customarily paid? What about the water/trash bill for your home? Do you either have access to that information, or can you get it? In a similar vein do you know all about your family’s health insurance, toll tag, phone, and other accounts? Can you compile all of this information in a document that you can access online?

Step 4 How will you meet financial obligations during the divorce? In addition to your living expenses, there will be additional charges related just to the divorce process, itself. So, securing a means to pay those expenses allows one to continue the case, rather than perhaps being forced to settle on less-than-favorable terms because you’ve run-out of money. The court may award certain bills, support, or alimony during the case. But, that is uncertain until it happens. Funding is sometimes available by taking a loan against a retirement account; selling some securities in a brokerage account; securing one or more credit cards in your own name, and unknown to your spouse, ideally; or opening-up a line of credit with a financial institution. Also, do you have a relative who will loan you money, or who will allow you to use his or her credit card? Is there home equity available to borrow? Even if the house is owned by both of you, the court may allow that home equity to be used to pay the expenses of the case.

These are the first few considerations. We will address more of them with the next post, so check back for more useful info!

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Keeping Our Kids Safe Online

As we become more of an electronically-connected society (and, when is that increase ever going to end?) potential dangers to our children, via the internet, are enhanced. Our children spend more and more time online, for activities such as their schooling, gaming, socializing, and other group meetings. In fact, according to the FBI, “(t)he internet, for all of its benefits, also gives criminals and predators an easy way to reach young people.”[1]

The FBI most often sees crimes against children begin when an adult:

  • Forges a relationship with a young victim online and then later arranges to meet and abuse the child; or,
  • Coerces a child into producing sexually explicit images or videos through manipulation, gifts, or threats—a crime called sextortion.” [2]

The FBI suggests that “(t)he most important advice for parents is to have open and ongoing conversations about safe and appropriate online behavior.”[3] Other advice to consider:

  • Educate yourself about the websites, software, games, and apps that your child uses.
  • Check their social media and gaming profiles and posts. Have conversations about what is appropriate to say or share.
  • Explain to your kids that once images or comments are posted online they can be shared with anyone and never truly disappear.
  • Make sure your kids use privacy settings to restrict access to their online profiles.
  • Tell your children to be extremely wary when communicating with anyone online whom they do not know in real life.
  • Encourage kids to choose appropriate screen names and to create strong passwords.
  • Make it a rule with your kids that they can’t arrange to meet up with someone they met online without your knowledge and supervision.
  • Stress to your children that making any kind of a threat online—even if they think it’s a joke—is a crime.
  • Report any inappropriate contact between an adult and your child to law enforcement immediately. Notify the site they were using, too.” [4]

Overall crime has dropped in the USA, over the last few decades.[5] This trend, however, does not speak to the new and increasing ways that our children find themselves to be vulnerable. My parents shooed us out-of-the-house, to play all day. Since this was way before the existence of cell phones and locator devices, they had absolutely no idea where we were at any given period of time when we were out of their sight. And, yet, we felt safe, because we were exposed to only our neighbors and local town or city folk.

Today we have a more mobile society, so many of us do not know our neighbors. That fact keeps us from being able to trust their motives and intentions. And so, we often feel the need to be more vigilant regarding our kids, their whereabouts, activities, and safety.

Sometimes, despite that vigilance, parents feel like they need more protection, such as a court order, when a specific threat of harm materializes, through another’s words and/or actions. Thankfully, there are legal remedies available to protect our family members, including our children, from those dangers. Contacting a Family Lawyer, to discuss those legal remedies, is often the first step in obtaining peace of mind.

 

 

[1] https://www.fbi.gov/scams-and-safety/protecting-your-kids

[2] Id.

[3] Id.

[4] Id.

[5] https://en.wikipedia.org/wiki/Crime_drop#:~:text=In%20the%20United%20States%2C%20for,the%20early%201990s%20to%202010.;

https://www.theatlantic.com/politics/archive/2016/04/what-caused-the-crime-decline/477408/

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Convincing a Court to Lift a Residence Restriction on a Child (Part 1)

The ability of a court to restrict the residences of children is one which varies under state law, from state to state. I am licensed to practice law in only the State of Texas, so my discussion will focus on Texas law. While there may be similarities to the laws of other states, you should check with an attorney licensed in the state in which your case sits, if that state is not Texas.

The issue of lifting, or modifying, a Residence Restriction, just like with other child custody and possession issues in Texas cases involving children, comes down to determining what is in the child’s best interest.[1]

The Texas Family Code[2] provides that it is the public policy of the State of Texas to:

  • Assure children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (my emphasis).
  • Provide a safe, stable, and nonviolent environment for the child; (my emphasis, again); and
  • Encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

 

Accordingly, our Supreme Court has held that that “(t)he Legislature’s expressed public policy considerations guide our analysis of the positive-improvement and best-interest standard in the relocation context, but no bright-line test can be formulated. Suits affecting the parent-child relationship are intensely fact driven, which is why courts have developed best-interest tests that consider and balance numerous factors.

In looking at whether the change to the Residence Restriction is in the child’s best interest, courts should consider, among other things:

(1) the reasons for and against the proposed move;

(2) the effect of that move on extended family relationships;

(3) the effect on visitation and communication with the noncustodial parent to maintain a full and continuous relationship with the child;

(4) the possibility of a visitation schedule allowing the continuation of a meaningful relationship between the noncustodial parent and the child;

(5) the nature of the child’s existing contact with both parents and the child’s age, community ties, and health and educational needs;

(6) whether there is a good-faith reason to request or oppose the move;

(7) the noncustodial parent’s ability to relocate;

(8) the degree of economic, emotional, and educational enhancement for the children and custodial parent; and

(9) the need for continuity and stability in custody arrangements.

Further, to the extent applicable, the best-interest factors used when establishing the initial or current order may be considered

 

Importantly, the controlling considerations for the court are those changes of conditions affecting the welfare of the child. The desires, acts, and claims of the respective parents are secondary considerations and material only as they bear upon the question of the best interest of the child.

 

So, for example, a change affecting the best interest of a child may be whether one or both parents are romantically involved with other individuals who are frequently around the child. If so, what is the nature of the relationship between the new romantic interest and the child? Has either parent developed a Substance Use Disorder? Have the work hours of a parent changed? Is there a new step-brother or sister in the picture? The list of possible changes is long. The idea is to focus on what is new or changed since the order imposing the Residence Restriction was entered. The court will not want to consider whether the Residence Restriction should have been imposed in the first place. That decision was made earlier. Our job will be to show that it is no longer in the child’s best interest.

I hope that this has given you some things to consider. Until next time, keep on loving your kiddos!

 

 

 

[1] TFC Section 153.002

[2] Section 153.00l(a)(l)

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When to Consider Divorce (Part 3)

 Previously, we have discussed the benefits of a happy marriage, as well as warning signs in this article; and, the types of marriages that might be saved, and are worth fighting for, in this post following-up the first one. Today, we will discuss different types of commitments to a marriage, and which is required for a marriage to be happy and thrive (and so, for divorce to not need to be considered).

In traditional, ceremonial, marriages, the individuals to be married make vows to one another. They, typically, will publicly attest to their mutual love, devotion, and expressed intention to work towards a lifelong, supportive relationship. That commitment is usually “for better, or for worse, for richer or poorer, in sickness and in health; to love and to cherish, till death do us part.”  And yet, despite those vows, many once-married people find themselves divorcing or divorced. Why is that?

Notice that the vows cited above do not express how the couple will stay together through troubling times. There is no mention of what actions they will take when warning signs (discussed in the articles linked above) present themselves. Divorce should not be considered, at least not initially, in a non-abusive relationship, where the partners are appropriately committed. So, that raises the issue: what type of commitment is “appropriate?”

According to Benjamin Karney, a professor of psychology and co-director of the Relationship Institute at UCLA, “’(w)hen people say, ‘I’m committed to my relationship,’ they can mean two things. One thing they can mean is, ‘I really like this relationship and want it to continue.’ However, true commitment to the marriage is more than just that.”[1]   In a new study, UCLA psychologists based their analysis of 172 married couples over the first 11 years of marriage. What they found was that couples who did more than just commit to wanting their relationship to continue; who were actually willing to examine how they might change themselves, compromise on their wishes and preferences, and prioritize the welfare of their marriage, over their individual desires, were significantly less likely to divorce, than were those couples who did not commit at that level.[2]

That makes sense when applied to other contexts. Let’s take parenting for an example. There are times when a parent prefers not to get-up with a sick child at night; prepare a healthy meal, wash clothes, arrange parties or outings for a child. They may even reside in a location where it is better for a child (such as in the attendance zone of a good school, or within an area designated by a court for the child to reside) rather than where they would ideally live (on a mountain, at a beach, in another state, or in a downtown condo, for examples) But, most parents will do those things anyway, because they prioritize the welfare and happiness of their child over their own individual wants, desires, and preferences.

It’s easy to want to have a good relationship, with a thriving, healthy child. It’s the parents’ commitment to sacrifice for the child’s welfare that is truly important to achieving those outcomes. Should spouses treat the welfare of their marriage with less commitment? If the answer to that question is “no,” then divorce should not be considered in that circumstance. If the answer is “yes,” then that spouse should consider whether s/he wishes to truly be married, or whether being single is the preference.

Healthy marriages bring much value to spouses, including a longer life expectancy, more general happiness, and life satisfaction. But like most things worthwhile, they take work, commitment, and sacrifice. But, the process of making them successful improves our own attitudes towards life, and ourselves as people and partners.

 

[1] https://newsroom.ucla.edu/releases/here-is-what-real-commitment-to-228064

[2] Ibid.

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Protecting Children When a Parent Has a Substance Abuse Disorder

According to the National Institute of Mental Health, “A substance use disorder (SUD) is a mental disorder that affects a person’s brain and behavior, leading to a person’s inability to control their use of substances such as legal or illegal drugs, alcohol, or medications. Symptoms can range from moderate to severe, with addiction being the most severe form of SUDs.”[1] When a parent has a SUD, the parent-child dynamic is always affected to some degree.

In fact, research studies indicate that the children in these situations have an “ elevated risk that children of substance abusing parents face in general for poorer academic functioning; emotional, behavioral, and social problems; and an earlier onset of substance use, faster acceleration in substance use patterns, and higher rates of alcohol and drug use disorders.”[2]

So, obviously, this is an important issue in child custody cases, with or without an accompanying divorce. What are some of the ways that courts address these situations? That is the subject of today’ blog post.

Protecting children from the adverse effects discussed above is the primary goal of the courts in these situations. And, it should be the primary goal of both parents. The issue that typically arises first is a recognition of the problem by both parents. The parent having the SDU often will not recognize that his/her substance abuse is, indeed, a problem for the children. That parent may defensively opine that the “real problem” is with the other parent, who is “too uptight,” or who “just needs to relax (or chill).”

If that SUD remains unrecognized by that parent, then a court order will, likely, be required, to put into place protective measures. Those measures may include: limiting the possession (“visitation”) time of the parent abusing the substance(s). If, for example, that parent has a habit of drinking alcohol in excess during the evening and night hours, then his or her right to possession of the children may be limited to daytime hours. Or, if a parent smokes marijuana on weekends, then his or her possession rights may be limited to just weekday periods. Texas courts have broad authority, and indeed, an express duty, to enter orders that both protect children, and that are in the best interest of those children who come before them.

In the case where the parent having the SUD apparently addresses the problem, by refraining from using those substances previously abused by him or her, the other parent and the court may want to be able to confirm that the person is remaining clean and sober. And so, drug tests may be ordered.[3] If the substance being abused was alcohol, then the court may order that the parent with the problem subscribe to a service that provides a pocket-sized alcohol testing device. Times can be set for testing, such as: 30 minutes prior to the beginning of the parent’s possession period; 2 hours after the possession period begins; early the next morning (if the visit is overnight). Additionally, the right to random testing requests by the other parent may be ordered.

The goal of providing structure to these possession periods is not to “punish” a parent. Instead, it is to work towards providing a safer environment for children. After all, isn’t that the most important issue?

Until next time, keep on loving the kids in your life!

~David

 

[1] https://www.nimh.nih.gov/health/topics/substance-use-and-mental-health#:~:text=A%20substance%20use%20disorder%20(SUD,most%20severe%20form%20of%20SUDs.

[2] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3676900/

[3] Urine, hair, and nail tests are currently used in the jurisdictions where I practice law. This series of tests gives a broad picture of use, both recently and over the course of the past few months.

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Having a Child Custody Case With Pending Criminal Charges Against You

In our practice, we see cases in which there is a pending criminal charge, such as for DWI, and a civil case, involving child custody issues. Sometimes, the criminal charge involves an alleged assault. Whenever we have one of these cases, we build our case on demonstrating the best interest of the child. It is too easy for the parents to focus on one another, as opposed to what the court truly cares about: what is best for the child or children of those parents. Our job is to make sure that the case is properly focused where it should be.

We have written several articles about representing the parent against whom criminal charges are not pending. Today, we write about representing the accused parent. There are complications involved in this representation. For example the accused parent’s criminal defense counsel will, almost certainly, advise against having that parent testify at any hearing or deposition, in order to preserve his or her 5th Amendment Right Against Self-Incrimination. The idea is to not provide any evidence which the prosecution might use in building their case.

Once they know what a criminal defendant is going to say, they can guide or highlight their presentation to account for that testimony. That makes it easier for the prosecution. The criminal defense attorney, of course, does not want us to assist the prosecution in that way. So, what we can do is present non-testimonial evidence, such as the lack of evidence on certain aspects of a case.

Examples of this are the lack of photographs, audio recordings, contemporary notes, or medical records supporting the allegations being made against the parent. If the other parent is the one making the allegations against our client, then his or her testimony can be obtained, thereby “freezing” their account of events. That parent can be asked about why s/he did or did not take certain actions, such a generating the evidence mentioned above. Also, our questioning can obtain the identity of any other witnesses known by that parent. Corroborating evidence can be asked about. Essentially, the hearing (such as for temporary orders) can be useful as a de facto criminal case deposition, that can assist the criminal defense attorney prepare their case.

Another purpose of the Family Law case hearing is to state scenarios to the witnesses for the prosecution, and ask them “if that wasn’t really what happened.” If and when they deny it, they can be questioned about that scenario, such as relating it to other evidence put forward in the case, to ascertain evidence that is consistent with the scenario that we put forth. Their responses can reveal weaknesses in the cases being made against our client by the prosecution and their opposing spouse.

And, our questions allow us to put forward a version of events for the court to consider, without our client having to testify. All witnesses can be asked about the loving relationship between our client and the children. Activities that they engage in together can be asked about. They can be asked to admit that the children would likely miss seeing our client, if possession and access were to be denied. The focus of the questioning that we want to leave with the court is how, the best interest of the child(ren) will be served only by allowing them to have a robust relationship with our client, through plenty of frequent possession and access, despite whatever, the accusations being made against our client by the prosecution.

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Is There an Ideal Time to File for Divorce?

One of the more common questions that we receive concerns when to file for divorce (another one is “(d)oes it matter who files first). There are several factors that go into figuring the timing. For one thing, is divorce an appropriate response to your current situation? Some considerations to think about can be found here and here.

Assuming that you have fully considered your decision, as discussed in the links above, and you wish to proceed with divorce, the next consideration is whether you have taken the steps necessary to be prepared for divorce. A discussion of those steps can be found here.

Ok, now that you have given thought to whether divorce is right for you; and if you are ready for divorce; then the issue of ”when to file” arises. January is the most popular month for filing for divorce. In fact, it is commonly referred to in the industry as “Divorce Month.” February is, typically, the second most popular month for new divorce case filings.[1] But, does it truly matter in which month a new divorce case is started?

As far as the law governing the divorce case, and the manner in which the proceedings will go, the answer is “no.” Filing in either Spring, Summer, Fall, or Winter, will not change your case. So, the answer as to when to file is that you should file if and when you are ready to file.

Have you made the plans discussed in the links above for how things will go during your case? Also, will the two of you continue to reside together, or will one of you move out of the home? Have you considered finances and debt payments? Is now a particularly dicey time for one or more of your children? Is it a particularly stressful time at your work? Is there a preplanned family vacation on the horizon? All of these considerations, as well as the others discussed within those other blog posts, amount to determining whether you would be happier staying together, at least for now, or beginning the process of legally dissolving your marriage.

It is not an easy decision for many folks. As for others, they emotionally checked-out of the marriage in the past, and so, it is merely a business decision for them. Wherever you are in that process of emotionally coming to grips with the loss of your marriage, our advice is for you to not make a rash decision. Think about what you want to do. Discuss it with friends, or a mental health worker. And, if you decide that divorce is right for you; and that you are ready to proceed, then make that decision. Until then, wait until you are ready (or, ideally, work to improve your marriage, and never get divorced).

Until nest time, I am the Family Lawyer who says “Divorce is a big decision. Please don’t rush into it!”

 

[1] There are a few reasons for this phenomenon. Many people do not want to start the divisive process during the  holiday season. The stress of the holiday season pushes other to realize how unhappy they actually are. And, January is often viewed as a time for new resolutions, and major life changes.

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