Family Law Archives - Heiman Law Firm

How Does Family Violence Affect a Family Law Case

Sep 24, 2024 | Family Law, Blog, Family Violence, Protective Orders

We previously discussed Family Violence, and available Protective Orders within “Legal Protections for Family Violence (Part 1),” “Legal Protections Available for Family Violence,” (Part 2), and “Important Factors in Cases Requesting Protective Orders.” Those posts discuss the availability of those orders; issues that are important for the court to determine whether Family Violence has occurred; and, “Just what is Family Violence, anyway?” Today, we will discuss a different, but related subject: how does a finding of Family Violence affect a Family Law case?

The relationships between parents, with one another, as well as the relationships that those parents have with their children, was once thought to be a ‘family matter” that was beyond the scope of courts to address. The idea was that family members can and should address any issues that they have with one another. Obviously, that way of thinking has been replaced with one that seeks to protect children from being abused or neglected, themselves, and from growing up in homes where there is Domestic Violence occurring. The ways that our courts do that during Family Law litigation is the subject of today’s writing.

Initially, it is important to note that while each of the 50 states comprising the United States has laws protecting children in these circumstances, we will limit our discussions to Texas law today. For information on the laws of other jurisdictions, please consult with a properly licensed and experienced attorney for that jurisdiction.

Under Texas law, Family Law cases involving children (Suits Affecting the Parent-Child Relationship) begin with certain presumptions. These include presuming that parents should be appointed as Joint Managing Conservators of their children;[1] and, that each parent should be awarded a minimum of Standard Possession of his or her children[2] who are three years of age or older.[3] Those presumptions, however, do not apply when “credible evidence is presented of a history or pattern of” child neglect, child abuse, or abuse of the other parent.[4] In those instances, other presumptions apply.

Those other presumptions include restricting or limiting the access of the “violent parent” to the children;[5] and, appointing the “Non-Violent Parent” as the Sole Managing Conservator of the children.[6] The court may require that any possession of the children given to the “Violent Parent” “be continuously supervised by an entity or person chosen by the court.” And, the exchange of the children, instead of taking place at the children’s schools, “occur in a protective setting.” The court can, also, require that a parent “abstain from the consumption of alcohol or a controlled substance … within 12 hours prior to or during the period of access to the child.” The court has the power to, also, require that as a condition of having child possession, the Violent Parent ”complete a battering intervention and prevention program;” or, (if that is unavailable), complete a program with a mental health professional who has proper education, licensing, and training is domestic violence.

Texas law has presumption upholding the rights of parents to raise their children. If, however, it is shown that children are not safe with that parent, our courts have powerful tools to protect children from that parent.

Until next time, keep on loving those kiddos!

[1] TFC sec. 153.131

[2] TFC sec. 153.252

[3] TFC sec. 153.254

[4] TFC sec. 153.004 & 153.005

[5] Id.

[6] A Sole Managing Conservator makes most of the important parenting decisions, without needing to first obtain the agreement of the other parent, or anyone else, for that matter. This is similar to when fathers used to merely pay child support, and have weekend visits, while the Mother “raised” the children.

Heiman Law Firm – Frisco
2770 Main Street
Suite 179
Frisco, TX 75033
(214) 269-9601

Heiman Law Firm – Lewisville
405 State Highway 121 Byp
Ste A250
Lewisville, Texas 75067-4183
(469) 948-4764

Heiman Law Firm – Flower Mound
2201 Spinks Rd
Flower Mound, TX 75022
(469) 817-3273

Practice Areas
Adoption │ Appeals │Child Custody │Child Protective Services │Child Support│Collaborative Law │Divorce │Estate Planning │Family Law │ Wills

Office Hours

Monday-Friday By Appointment
9:00 am to 5:00 pm
Saturday Appointments Available

[email protected]

We have offices in Lewisville, Frisco, and Flower Mound. We service the North Texas area including
Plano, Frisco, Flower Mound, Denton, Prosper, Lewisville, Little Elm, and the Colony.

What to do if Child Support is Still Being Withheld After Kids are Adults

Jul 15, 2024 | Child Support, Blog, Family Law

We helped a former client today who learned that his employer was continuing to withhold child support payments from his check, even though his children were “emancipated” (that is, they are at least 18 years of age, out of high school, and not disabled). It occurs to me that other folks in Texas might find themselves in this position, also; so, I am writing about that situation today.[1]

The first step in addressing this issue is taking a look at the Withholding Order. Does it explain (as it should) that child support is to be withheld for only so long as no child is
“unemancipated?” (“emancipation” is explained, above). If it does, then you should contact your Human Resources Dept. to discuss the withholding with them. For smaller companies, especially those which operate in just Texas, this may be effective. Larger, more geographically diverse organizations, often require that withholding for child support continue until such time as they receive a new court order that expressly terminates that withholding (this is silly, in my opinion, because the withholding order, itself, mandates the termination of the withholding when the kids age-out; nevertheless, bureaucracies might not care, and insist upon their “policies” being followed, which might require a new order). Since suing your employer to enforce the terms of the withholding order seems unlikely to be a good strategy (for obvious reasons), we will need to try to satisfy their policies.

When another order is required by your employer, we consider contacting the parent (who is receiving the wrongly withheld child support), to see whether s/he will agree to an order terminating the child support withholding.[2] If so, then a motion can be filed, requesting termination of the withholding; and then, an Agreed Order Terminating Withholding for Child Support prepared, signed, and submitted to the court. Next, we contact the Court Coordinator, for your particular court, to see whether the court will require a hearing (usually, no hearing is required, unless another party is involved in the case, such as Child Protective Services). If no hearing is required, then the Judge should sign your order upon our submission of it.

If a hearing is required, then we will set it, working with the Court Coordinator, for available court settings (dates and times for hearings). Once it is set, then all parties (usually, just the other parent) must be formally notified of the setting. Then, at the time of the hearing, we appear with you, present your testimony, and our argument, regarding why termination should end, and then, request the Judge sign the order.

Once we have a signed order, we will contacthe District Clerk’s Office to request that the order be sent to your employer. They will need to have a completed form with various information about your case, your employer, and the order. And, there may be a fee payment required.

Finally, the order should be sent by the District Clerk’s Office to your employer. And, the withholding should terminate.

We hope that this information has been helpful.

Until next time, keep on loving those kiddos!

Best regards,

David

[1] We are licensed to practice law in Texas, and are familiar with the child support withholding process in Texas. Accordingly, our comments apply only to those who have a child support withholding order issued by a Texas state court

[2] Some parental relationships are toxic ones. When we are dealing with one of those, in which the parents can’t/won’t cooperate about anything, then we skip this step.

Heiman Law Firm – Frisco
2770 Main Street
Suite 179
Frisco, TX 75033
(214) 269-9601

Heiman Law Firm – Lewisville
405 State Highway 121 Byp
Ste A250
Lewisville, Texas 75067-4183
(469) 948-4764

Heiman Law Firm – Flower Mound
2201 Spinks Rd
Flower Mound, TX 75022
(469) 817-3273

Practice Areas
Adoption │ Appeals │Child Custody │Child Protective Services │Child Support│Collaborative Law │Divorce │Estate Planning │Family Law │ Wills

Office Hours

Monday-Friday By Appointment
9:00 am to 5:00 pm
Saturday Appointments Available

[email protected]

We have offices in Lewisville, Frisco, and Flower Mound. We service the North Texas area including
Plano, Frisco, Flower Mound, Denton, Prosper, Lewisville, Little Elm, and the Colony.

Can I appeal my Divorce Case Judgment?

Jun 13, 2024 | Blog, Divorce, Family Law

Today, we will discuss your options, when you are dissatisfied with the result of your divorce case.

Initially, it bears repeating that in most (perhaps, all) U.S. jurisdictions, fewer than 5 percent (5%)of the filed cases make it all of the way through trial. And, of those a very small percentage are appealed. So, the odds of your having an appeal are small. Nevertheless, appeals do happen.

We have done appellate work in Texas for more than thirty (30) years, so we have learned a few things about them. To begin with, it’s important to note that an appellate court is not going to reconsider the merits of the case, and (perhaps) reverse the judgment of the trial court, merely because one party is not satisfied with the case result. Instead, the appealing party (the “Appellant” in Texas state law practice) must show that the judgment of the trial court is based on reversible error. Let’s discuss this a bit.

In order for reversible error to exist, the appealing party must show (in Texas) that:

the court made an error in its rulings; and, that error was of such magnitude that it probably caused the rendition of an improper judgment; or,
the court abused in discretion on matters for which it has discretion. Those discretionary matters include issues such as child custody, and the award of Community Property[1]) are not going to be found to be error, unless the court’s judgment is found to be an abuse of that discretion. In Texas, that means that the court acted arbitrarily or unreasonably; or, without reference to guiding rules or principles. That is (obviously) a high standard to meet.

In regard to the first of those, one or more erroneous rulings, typically on a matter of law, must be shown. For example, incompetent evidence is admitted; or, improper Jury Argument is made (if your case, in fact, has a Jury). Then, it must be shown that the Appellant properly preserved that error, such as by making an objection; obtaining an adversary ruling (a ruling against the objection; and, (perhaps) offering proof of excluded evidence.[2] That establishes error. Next, the more difficult task of showing that the error is reversible must be shown.

The presumption in Texas is that any error committed by the trial court is “Harmless.” In order to overcome that presumption, the Appellant must show (again, in Texas) that “the error complained of:

(1) probably caused the rendition of an improper judgment; or

(2) probably prevented the appellant from properly presenting the case to the court of appeals. (TRAP 44.1).”

Item Number 2 rarely occurs, in our experience. So, the focus is on Item 1, above. To show that an improper judgment resulted on account of the error, that error must be of such magnitude that it likely overcomes the cumulative result of the other case elements. So, we are not talking about trivial matters. Errors of this kind are matters such as admitting expert testimony (and, likely opinions) that were not shown to be relevant and reliable. Or, excluding important evidence (documents, audio-visual materials, or testimony, e.g.) that would likely significantly alter the case result. That is not an easy task.

Appellate work is specialized and highly technical. If you believe that you may have an appealable issue, please contact a qualified appellate lawyer as soon as possible. There are time limits which, if missed, can end the option of appealing a trial court’s judgment.

That’s all for today: keep on loving those kiddos (Grown-ups, too)!

My best,

David

[1] Texas is one of just eight (8) Community Property States; so, this concept of “awarding Community Property” does not apply to the other states and territories on the United States)

[2] This is a general discussion The technicalities of error preservation are beyond the scope of this post.

Heiman Law Firm – Frisco
2770 Main Street
Suite 179
Frisco, TX 75033
(214) 269-9601

Heiman Law Firm – Lewisville
405 State Highway 121 Byp
Ste A250
Lewisville, Texas 75067-4183
(469) 948-4764

Heiman Law Firm – Flower Mound
2201 Spinks Rd
Flower Mound, TX 75022
(469) 817-3273

Practice Areas
Adoption │ Appeals │Child Custody │Child Protective Services │Child Support│Collaborative Law │Divorce │Estate Planning │Family Law │ Wills

Office Hours

Monday-Friday By Appointment
9:00 am to 5:00 pm
Saturday Appointments Available

[email protected]

We have offices in Lewisville, Frisco, and Flower Mound. We service the North Texas area including
Plano, Frisco, Flower Mound, Denton, Prosper, Lewisville, Little Elm, and the Colony.

Can CPS Terminate Parental Rights Based on Old Events?

Mar 25, 2024 | Child Protective Services, Blog, Family Law

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

Can I Change my Child Custody Order?

Feb 18, 2024 | Child Custody

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

Nov 1, 2023 | Child Protective Services, Child Custody, 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.

Keeping Children Safe

Jun 22, 2023 | Child Custody, Child Protective Services, Family Violence

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!

Keeping Our Kids Safe Online

Jun 20, 2023 | Family Law

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/

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

Feb 18, 2023 | Child Custody, Family Law, Protective Orders

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)

When to Consider Divorce (Part 3)

Jan 21, 2023 | Divorce, Family Law

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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