Child Custody Archives - Heiman Law Firm

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

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

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!

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

Feb 18, 2023 | Child Custody, Family Law

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)

Protecting Children When a Parent Has a Substance Abuse Disorder

Jan 18, 2023 | Child Custody, Child Protective Services

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.

Having a Child Custody Case With Pending Criminal Charges Against You

Dec 18, 2022 | Child Custody, Family Law

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.

What are the Different Types of Child Custody? (Part 2)

Sep 18, 2022 | Child Custody, Family Law

This is the second installment in this series. We previously discussed the allocation of parental rights, in Part 1. If you have not read that one already, or if you have, but need a refresher, please check-out that post.

Today, we will discuss the ways that possession of a child may be allocated between parents.[1] The presumption is that one parent should have “Standard Possession” of the child(ren) who are 3 years of age, or older; and, that the other parent should have possession during the balance of the time.[2] Many of us are already familiar with the concept of parents sharing weekend possession, with Mom having one weekend, and Dad having the next one.[3] Similarly, it is fairly common for folks to be familiar with the idea of splitting the Summer between the two parents. What may be unknown is the allocation of time on each child’s birthday; the allocation of holidays and Spring Break. All of those are covered by the Standard Possession Order.

But, what about when the child(ren) may not be safe, or properly taken care of, if they are with one parent for a weekend, or even, overnight? If sufficient evidence is presented to the court demonstrating that Standard Possession is NOT in the best interest of the child(ren), then the court can enter whatever possession times, terms, and conditions, that the court finds to be in the kiddos’ best interest. Sometimes, that will mean (as in the case of young children, or a parent who s unable to properly supervise a child during an extended period of time) that the parent’s possession periods will be shorter; perhaps, not overnight, for example. In other cases, such as when a parent is using illegal drugs, abusing alcohol in the possession of kids, or abusing and/or neglecting children, the possession may be supervised by someone, or some organization, appointed by the court.[4]

There are other terms that the court may impose on the visitation. The court may, e.g., require the parent to confirm that (s)he intends to actually use the allocated visitation period (this requirement may be imposed when a parent has routinely failed to use allocated visitation). Or, the court may require the parent to pass a drug test, or use an Intoxylizer device, or Sober Link service, to prove sobriety. If the child is unsafe in the presence of a person other than a relative (such as a girlfriend, boyfriend, or uncle), then the court may impose the condition that the children not be taken into, nor allowed to remain within the presence of that person.

The court is charged with making orders in the best interest of the children coming before it. It has broad discretion to craft such orders that will keep those children safe and properly cared for.

Until next time, keep loving those kiddos!

[1] Since I am licensed to practice law in Texas, that is the jurisdiction that I will discuss.

[2] The presumptions regarding Standard Possession recently changed. We will not discuss those changes in detail here, but it is discussed here.

[3] Technically, this is accurate during the eight (8) months of the year in which there are only four weekends. On those four (4) months per year having five (5) weekends, the parent having Standard Possession is awarded the fifth weekend.

[4] Ideally, the Supervisor would be a safe relative, so that the visitation is not awkward nor “weird” for the kids. If not, then a professional Child Supervisor, such as an off-duty Sheriff’s Deputy, may be hired to monitor the visits.

What are the different types of Custody?

Jul 21, 2022 | Child Custody, Family Law

A common question that we get is whether it is possible for a client to get “full custody.” While “full custody” means different things to different people, it usually boils down to one of two things: either having the rights to make all parenting decisions for a child; or, having possession of a child, all of the time. We will discuss the first of those today. We will discuss possession issues later.

Initially, it is worth noting that the Texas Family Code, does not use the word “custody.” Rather, the word “Conservatorship” is used. “Conservatorship” is a Trust Law term, which denotes having an obligation to take a higher duty of care of something or someone, rather than merely taking possession of the something or someone.

In Texas, there are three (3) types of child conservatorships. They are: Joint Managing Conservatorship; Sole Managing Conservatorship;” and Possessory Conservatorship. Each of those terms indicates a different allocation of parental rights.

In a Joint Managing Conservatorship, most or all of the parental rights are shared. This means that the court has decided that either both parents must agree on a decision, or that either parent may make the decision. If the agreement of both parents is required, but there is not an agreement on a particular decision, then the court will make that decision.[1] It is statutorily presumed that the award of Joint Managing Conservatorship is in each child’s best interest. So, this is where the court starts, before hearing evidence.

In a Sole Managing Conservatorship, most of the significant decision-making rights are awarded to one parent or the other. A couple of the more weighty of these are the right to make educational decisions, and the right to make non-emergency, invasive, medical decisions. This last one includes surgeries, but also, consenting to medication being administered to a child. Some examples of when a Sole Managing Conservatorships might be awarded is when one parent is incompetent (such as an active drug addict); incarcerated; or, so high conflict that no reasonable agreement is likely to be reached with this parent.

The final type of Conservatorship is a Possessory Conservatorship. This is awarded to one parent when the other one is awarded a Sole Managing Conservatorship. A parent named possessory conservator shares with the managing conservator the rights to:

Receive significant information from any other conservator about the child’s health, education or welfare
Confer with another conservator as much as possible before that conservator makes a decision about the child’s health, education or welfare
Access the child’s educational records, and consult with school officials about the child
Attend the child’s school activities
Be listed as an emergency contact for the child
Manage the child’s estate, if it was created by the parent or the parent’s family
Access the child’s medical records, and speak with medical professionals treating the child
When the parent has possession: consent to non-invasive medical care (and invasive care, in emergencies)
When the parent has possession: Direct the moral and religious training of the child

Courts presume that both parents should be involved in making important decisions for their children. But, when one parent has demonstrated an inability to reasonably be involved within that process, the court may decide to award decision-making rights to the other one.

[1] Our courts used to appoint tiebreakers, such as a child’s pediatrician or school teacher. Unfortunately, that lead to some bad outcomes for those third parties. Consequently, this practice is currently disfavored.

2021 Changes to the Texas Standard Possession Order

Jun 18, 2022 | Child Custody

Since at least 1983, Texas child custody cases (or “Suits Affecting the Parent-Child Relationship,” or “SAPCR”) have been governed by a presumption in the Texas Family Code, providing that a “Standard Possession Order” should, typically, be entered by the court. The terms of that order have changed several times since then, with the most recent changes going into effect on September 1, 2021. These most recent changes are significant for most parents who have have a court order related to their children . Let’s take at look at those changes.

In the past, the default weekend possession times for the parent without primary possession of child began on Friday at 6:00 p.m., and ended at 6:00 p.m. the immediately-following Sunday, unless: the parent without primary possession elected to have the weekend visit be longer; and, the court made a finding that the longer visitation was in the child’s best interest. The same thing applied to Thursday periods of possession during the school year, as well. The parent had to timely make an election; and the court had to make findings, that an overnight visit was in the child’s best interest; or else, those Thursday visits would be from 6:00 p.m. until 8:00 p.m.; basically, a dinner visit.

That is no longer the case for parents who reside within fifty (50) miles of one another. For those parents, the default periods for both the Thursday and weekend periods of possession are extended; Thursday possession times are from when school dismisses on Thursday, until school resumes the next day; weekend periods are from when school dismisses on Friday, until it resumes after the weekend (on Monday, unless that is a school holiday, in which case it would be on Tuesday). And, since most Texas Family Courts will restrict the residence locations for the children under their jurisdiction, these terms will apply to most Texas custody cases.

As with most Texas Family Code provisions, there are exceptions to those terms. If the court finds that those extended provisions are not in the best interest of certain children, then the extended times will not apply. They, also, will not apply if: “the distances between the residences make the possession schedule…unworkable or inappropriate considering the circumstances of the parties or the area in which the parties reside;” or, “because before the filing of the suit (the parent) did not frequently and continuously exercise the rights and duties of a parent with respect to the child;” or, if the parent who would get the extended possession “declines one or more of the alternative beginning and ending possession times… in a written document filed with the court or through an oral statement made in open court on the record;” or finally, “for any other reason the court considers relevant” (which seems very broad in my estimation.)

While these changes will apply to most contested Texas custody cases, the parents are still authorized to make their own agreements considering the possession times and circumstances of their children. In fact, cooperation between parents generally benefits children. So, our courts encourage parents to do that.

That is all for now. Until next time, keep-on loving those kiddos!

What if Your Child Does Not Want to Visit a Parent?

May 21, 2022 | Child Custody, Family Law

As the children of separated parents become older, they might express that they do not want to spend time with one of their parents. This, of course, causes trouble for the relationship between the child and parent, as well as the relationship between the parents. In fact, if the issue remains unresolved, then either a parent and child may become estranged from one another, or litigation may occur. And so, the situation should be taken seriously, and properly addressed.

The first step is to have a discussion with the child about the reasons for his or her not wanting to spend time with the parent. For example, Is the child bored? Does the child miss friends or activities while spending time with one parent? Is there some problem with the relationship between this parent and child? Getting to the root of the problem let’s us see what needs to be addressed.

Children, especially young children, take emotional cues from their parents or other caregivers. So, often, one parent can encourage a visit to occur with the other parent by speaking favorably of the time that the child gets to spend with the other parent. For example, the first parent might talk about the visits with the other parent being like vacations or adventures for the child.

But, what if the problem is that one parent is discouraging a child from visiting, or having a close relationship with, the child’s other parent? This is more problematic, and may result in Parental Alienation Syndrome. (Parental alienation is a set of strategies that a parent uses to foster a child’s rejection of the other parent. Parental alienation syndrome develops in children who come to hate, fear, and reject the targeted parent as someone unworthy of having a relationship with them). [1] If you believe that this may be occurring, then it is important to speak with a lawyer who has experience handling these cases. Inaction and delay, often worsens the problem. I have written about this here.

If the other parent is simply not complying with the possession order, perhaps by failing to deliver the children, or claiming that s/he “cannot get them to go” with the other parent, then judicial enforcement of that order should be considered.[2] When courts make orders, they expect them to be followed. An Enforcement Action is a request that the court take steps, such as holding someone in contempt of court, for not following the court’s order. It tends to be a good motivator for compliance.

If the case progresses to litigation, such as an Enforcement action, it is important to note that the states take different approaches to this circumstance. Accordingly, it is important to consult with an attorney licensed in the jurisdiction where you are located. Since I am licensed to practice law in Texas, I am familiar with the way that these cases are handled by Texas courts.

Texas courts, in my experience, have become less tolerant of parents who can get a child to attend school, team practices, and other events, but who claim to not be able to get a child to visit with the other parent. The courts’ attitude is that the child is simply not in control. If one parent cannot, or will not, follow the court’s order, then there will be some consequences imposed.

Children deserve to have a happy and healthy relationship with both parents. Courts have tools at their disposal to make the visits between parent and child happen. Until next time, keep loving your kids!

[1] A good discussion of this condition can be found here, which is the source of the definition sed in this post: https://www.socialworktoday.com/archive/102708p26.shtml#:~:text=Parental%20alienation%20is%20a%20set,having%20a%20relationship%20with%20them.

[2] Unfortunately, some people are “high conflict;” they like the adrenaline rush that comes from the fight. I have written about dealing with them here and also, here.