Blog Archives - Heiman Law Firm

Property Agreements Made During Marriage

Nov 4, 2024 | Blog, Estate Planning

Previously, we wrote about Premarital Property Agreements. We noted there that Texas law broadly supports Marital Property Agreements. Today we will discuss agreements entered into during a marriage^[1], instead of before marrying.^[2]

The Texas family Code states that “At any time, the spouses may partition (divide-up) or exchange (trade) all or part of their community property, then existing, or to be acquired, as the spouses may desire. Property or a property interest transferred to a spouse becomes that spouse’s separate property. The partition or exchange of property may also provide that future earnings and income arising from the transferred property shall be the separate property of the owning spouse.”^[3]

The breadth of that authority allows the spouses to agree, if they choose to, that there will be no community property. Any property which would otherwise be community can be divided, and then awarded to one or the other spouse, as separate property. Going further the income from a spouse’s separate property (such as interest from a Savings Account or Certificate of Deposit (CD), stock dividends, or bond coupon payments), which would ordinarily be community property, can be agreed to be separate property.

The beauty of these agreements is that they can be constructed to leave no property to argue about when a marriage ends, by either death or divorce (and, of course, every marriage eventually ends by one of those means). Of course, not every agreement will dispose of all property and all income, but it can dispose of as much or as little as the spouses wish.

So, you might be asking “what is required for these agreements to become effective?” Well, the answer is “not much; merely an expression of their agreement.” That agreement must be in writing. And, it must be signed by both parties. That is all! No consideration (exchange of something of value between the spouses) is required.

As noted within our previous post regarding premarital property agreements, Texas law favors the enforcement of marital property agreements voluntarily entered into by parties. Accordingly, the only way for a party to such an agreement to avoid that enforcement is for that party to prove that either:

It was not voluntarily signed by the party seeking to prevent enforcement;

or

2a. The agreement was unconscionable when it was signed; and

2b. A fair and reasonable disclosure of the property or financial obligations of the other party was not made; and

2c. That disclosure was not waived by the parties to the agreement; and

2d. The party seeking to avoid the enforcement did not have, and reasonably could not have had, adequate knowledge of the property or financial obligations of the other party.

Unless those very narrow exceptions are proved, then the agreement will be enforced by the court, if requested. The Supreme Court of Texas has held that

“Texas has a strong public policy favoring freedom of contract…We have repeatedly recognized that parties shall have the utmost liberty of contracting. And that their contracts, when entered into freely and voluntarily, shall be held sacred and shall be enforced by the courts.” In re Marriage of I.C., 551 S.W.3d 119, 124 (Tex. 2018).

Since there is so much that can be done with these agreements, I recommend that you consult with an attorney who is sufficiently experienced with them, if you are thinking of using one.

That’s all for today. Be sure to check back from time-to-time for more Family Law discussions!

[1] These are sometimes called “Post-Nup’s,” or “Post-Nuptial Agreements.” The Texas Family Code refers to them as “Partition and exchange Agreements.”

[2] As with all of our blog posts, we limit our discussion to the law of Texas.

[3] Texas Family Code section 4.102

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.

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.

Premarital Property Agreements in Texas

May 31, 2024 | Estate Planning, Blog

It is our experience that many folks do not understand just how useful and powerful Premarital Property Agreements (PPA) can be in Texas. We hope to bring you some helpful information in that regard today. Accordingly, here is a brief, introductory discussion of PPA:

To begin, it is important to know that Texas law broadly supports the use of marital property agreements, both those made prior to marriage, as well as those made during marriage. Today, we will discuss Premarital Property Agreements. We will later write about marital property agreements made during marriage. So, please check back later for information about those.

Next, the Texas Family Code expressly provides that:

“(a) premarital agreement must be in writing and signed by both parties. The agreement is enforceable without consideration (i.e., without the exchange of anything of value, other than the terms of the agreement itself); Texas Family Code Section 4.002
The parties are authorized to make a wide range of property agreements, provided that they are not in violation of public policy; and which do not purport to adversely affect the right to child support.

Due to that incredible breadth of that authority, PPA can completely change how people’s assets and liabilities will be divided upon death or divorce. For example, many of our clients who have been previously divorced want to ensure that there will be no fight about assets (such as retirement benefits or home equity) either upon their death, or upon another (potential) divorce. They may also wish to agree that there will be no Community Property created; but rather, that each spouse will own his or her earnings, and the property purchased with those earnings, as Separate Property. (Texas Family Code Section 4.003). Reimbursement claims can also be affected or eliminated by these agreements. (Texas Family Code Section 3.410). When done correctly, there is nothing left to divide nor allocate upon a party’s death or divorce, unless the parties wish to create some joint property, by the terms of their agreement.

These types of agreements become effective upon marriage; (Texas Family Code Section 4.004).
Importantly, these agreements may be amended during marriage (again, without consideration) in writing, signed by the parties. (Texas Family Code Section 4.005)

To support the use of premarital property agreements, Texas law favors the enforcement of premarital agreements voluntarily entered into by parties. Accordingly, the only way for a party to such an agreement to avoid that enforcement (assuming that the agreements become an issue in a subsequent marriage dissolution, such as a divorce, action between the parties) is for that party to prove that either:

It was not voluntarily signed by the party seeking to prevent enforcement.

or

2a. The agreement was unconscionable when it was signed; and

2b. A fair and reasonable disclosure of the property or financial obligations of the other party was not made; and

2c. That disclosure was not waived by the parties to the agreement; and

2d. The party seeking to avoid the enforcement did not have, and reasonably could not have had, adequate knowledge of the property or financial obligations of the other party.

Unless those very narrow exceptions are proved, then the agreement will be enforced by the court, if requested. The Supreme Court of Texas has held that

“Recognizing (additional exceptions to enforceability, besides those two listed above) would judicially expand (the very limited exceptions provided by Texas law) and run afoul of our longstanding preference to protect the freedom of contract by enforcing contracts as written. Texas has a strong public policy favoring freedom of contract that is firmly embedded in our jurisprudence. We have repeatedly recognized that parties shall have the utmost liberty of contracting. And that their contracts, when entered into freely and voluntarily, shall be held sacred and shall be enforced by the courts. We rarely find a contract unenforceable on public policy grounds. Premarital agreements are no exception.” (internal quotations omitted) (emphasis added). In re Marriage of I.C., 551 S.W.3d 119, 124 (Tex. 2018).

Since there is so much that can be done through the usage of a PPA, it is recommended that, prior to your marriage, you consult with an attorney who is sufficiently experienced with them, if you are thinking using a Premarital Property Agreement.[1] I advise my clients to contact us as soon as a marriage is contemplated. We will want to have adequate time to discuss matters with our client; draft the initial documents; and then, have them reviewed by the other party’s attorney. Wedding Planning is stressful enough already, without adding an unnecessary, time-crunch element to them!

That is all for today. Please check our other blog posts and return from time to time to see newer ones.

[1] Please remember that other property agreements can be made during a marriage.

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

The Importance of Non-Expert Witnesses in Child Custody Cases

Dec 19, 2015 | Child Custody, Blog, Family Law

This article, as its name implies, discusses the impact that non-expert witnesses, such as a child’s teacher, doctor, daycare provider, neighbor, or the parents of a child’s friends, can have when a court is considering child custody. If you want to see the specific child custody factors that a Texas Family Court will consider, then I refer you to my earlier post, “How Child Custody Cases are Won (part 1).” I also have written about how to show evidence of those child custody factors in Part 2 and Part 3 of that series.

The Judge of your particular court expects that if your child custody case has made it all the way to a contested trial, then the mother and father of the children in the case disagree—likely strongly—about what custody arrangement is in the child or children’s best interest. And so, your Judge will not be at all surprised when the Mother testifies that she is the better parent, and the Father claims that he is, actually, the better one. We will need to give the court more help in making its custody decision. Often, that “help” comes from the testimony of other folks who have been involved with the children and family.

If the children are school-aged, then their current and former teachers probably have a sense of which parent has been involved in discussing those children’s academic performances, addressing educational issues, and being available during unscheduled events that require immediate attention, such as a school’s early dismissal due to bad weather, or a child’s illness. And, if the parents have been separated during the school year, then those teachers can usually offer opinions on how rested, clean, and prepared those kids are for school when they stay with Mom, and when they stay with Dad. Child care workers can offer similar information about younger children, who are not yet attending school.

If your child participates in one or more organized activities, such as soccer, band, or drama, then the parents of the other children involved in that activity can testify about when, and to what extent, each parent supports the child in that activity; such as by driving the child to practice or performances, attending those events to watch their child, and supporting the group as a whole through volunteer activities and fund-raising, for example. Since the child will probably want to continue in the activity after the custody case has ended, those people can give valuable insight to the court about each parent’s support of their child’s interests.

The neighbors of children usually know if there are “issues” at a parent’s home, such as loud fights, wild parties, or police activity at that home. And, while they often do not volunteer to testify in court, they can be subpoenaed to come to court to testify.

The records at the child’s doctor’s office typically will mention the dates of appointments, who brought the child to that appointment, and the health condition of the child when seen by the doctor. If one parent has been more involved in the child’s healthcare than the other one has, then the Judge can often determine that to be the case by reviewing those records, assuming that the proper foundation has been laid by your lawyer to make those records admissible in evidence.

Child custody cases are emotional. Both parents may truly believe, and testify, that their children would be better off with them. The people discussed in this article who have observed the children and the parents, over substantial periods of time, can often help clarify to the court where those kids will, truly, be better off.

And, just as important as the evidence that we do want the court to hear, this is the kind of evidence that we do not want to have presented against us in a child custody case, if we hope to win that case. Thanks for taking the time to read this article. As always, we appreciate your comments and feedback.

How You Can Help Your Children Survive Divorce (Part 2)

Nov 3, 2015 | Blog

Recently, I posted the first part of this article, which discussed ways that you can protect your children from the ill-effects of a divorce in “How You Can Help Your Children Survive Divorce (Part 1)”. This is the second part of that piece, and contains additional information to help your children as they make this life transition with you.

15. Don’t use your children as your friends or confidants. Divorce is usually hard. Besides having your family split-up, you may have, also, lost friends during the divorce. Your children need you to be their parent, rather than someone whom they have to make feel alright. Do not cry on your children’s shoulders. That is not emotionally healthy for the children nor the parent. If you are lonely, then find an activity that you enjoy, and meet some new people. That is fun!

16. Be reasonable and flexible with possession of your children. Children are happier when they have frequent and free access to both parents – regardless of the formal written court’s order. If you and your ex can make agreements about when each of you will have possession of the children, then your children will benefit from that flexibility.

17. Do not imply that your children will be “missing out on fun” with you while they’re away visiting the other parent. And certainly don’t have your child ask the other parent if it would be okay to allow him or her to do something with you during the other parent’s time. Instead, talk to the child’s other parent, yourself, about the arrangement. And whatever the result of that conversation is, do not involve your child in that discussion. If you do, then the child will experience confusion or dislike for one or both parents. And, that will make your child unhappy.

18. If your child is young, then help him or her pack for visits. Get your child where he or she needs to be on time. Don’t let your actions communicate that you resent the time they spend with their other parent, nor that you do not respect the other parent. Remember, “Happy Children” is the goal here.

19. Both parents should provide a space in their home (a room, closet, shelf or drawer) where the children can keep their belongings undisturbed between visits. Make sure that there is a picture of the child’s other parent, and any siblings, prominently displayed there. This helps your child know that he or she is part of a loving family, and does not have to focus on only one-half of that family at a time.

20. Do not ask your children to serve as messengers or spies. Anytime children are asked to betray one parent to the other, the children will feel guilty. Since divorce engenders guilt feelings in children anyway, it’s cruel to set them up for more. It, also, puts them in a position of having to choose loyalties between parents, rather than feeling loved by, and loyal to, both parents.

21. If you are having a hard time co-parenting with an ex you can’t stand, try thinking of it as doing business with someone you don’t like. Stick to the task at hand, be polite, and don’t get personal.

22. Do not use pick-up and drop-off times as occasions to fight with your ex-spouse. If conflict seems unavoidable, try arranging weekend possession periods so that the non-custodial parent picks the children up from school on Friday afternoon and returns them to school on Monday morning. This plan will not only avoid conflicts, it will help the non-custodial parent get involved in the children’s school work.

23. If your ex-spouse attempts to engage you about something while your child is present, simply tell him or her that you will be glad to discuss that matter at an appropriate time, and that now is not the time. Usually, that will end the discussion. But if it doesn’t, then simply walk away. You are setting boundaries for yourself and your children by doing this. If your ex still won’t leave you alone then contact security or the police. Additional Court Orders may also need to be put into place.

Following these pointers, along with the others that I discussed in the earlier article, will help your children to find their happiness sooner than they might otherwise do so. And raising happy, healthy kids is our goal, as parents, right?

How You Can Help Your Children Survive Divorce (Part 1)

Sep 7, 2015 | Family Law, Blog, Divorce

Divorce can be tough, especially for children who don’t know why it is happening, what it means, and whether they are the cause of it. The children’s parents can work together on a few things to lessen the impact of divorce on their children.

The following information was gathered from multiple sources, including my experiences handling child custody cases, things taught to me by mental health professionals, and my reading of available literature on the subject.

1. If possible, both parents should sit down together with their children to break the news about the divorce. This will minimize the risk of one parent portraying the other as the “bad guy” and reduce the temptation to use the children as allies or confidants at such an emotional time. It will also lay a groundwork that will help the children progress through the denial phase. In addition, you will demonstrate that you’re still co-parenting.

2. Be ready to answer (to the extent possible) younger children’s logistical questions about where they will live, who will take care of them, and how much time they will spend with each parent. Older teens should have a voice in determining their living arrangements.

3. Assure the children that they did not cause the divorce, and likewise, that they cannot change their parent’s decision, no matter how much they may wish mom and dad could stay together. Emphasize that your decision was not made on a whim.

4. Spare the gory details. Provide an honest, but age-appropriate, explanation for your break-up, such as “Mommy and Daddy will be happier living in different houses.” Children who have no rationale for their parents’ split are more likely to blame themselves.

5. Acknowledge that the divorce will be painful for everyone, and apologize to the children for disrupting their lives. Again, assure them that the split-up is not their fault.

6. Make a commitment to them to preserve their relationships with both parents and with members of their extended family. Assure the children that both parents will always love them, and that they can contact the other parent at any time.

7. Alert teachers and other care givers to your announcement so that they can help watch for signs of emotional stress in your children.

8. If possible, don’t move or change schools simultaneously with the divorce. Losing a parent plus their home, teachers, and friends is more than you should expect children to handle.

9. Remember that the longer and harder you fight each other, the less time and energy you have for parenting your children. Some experts say that it’s not the divorce so much as its accompanying disruption in parenting that does the real damage. For this reason and others, the wisdom of engaging in a protracted custody battle should be considered. Sometimes the children really do need to have a court make custody orders that the parents cannot agree to on their own. And sometimes the parents can come-up with a suitable child custody arrangement on their own without battling it out in court.

10. Allow your children to grieve the divorce. Let them know it’s okay to cry.

11. Realize that your children are acutely aware of your pain and are likely striving to not trouble you further. For this reason, they tend to bury their own pain and anger. Try to provide your children with a peer support group or other safe place where they can express their feelings.

12. Be open to the notion of seeking counseling, for yourself and your children, not only at the time of the divorce, but anytime they need it. The danger signs are: a) problems that get worse over time instead of better, b) drastic changes, and c) continuous extreme behavior, whether it’s acting out or being “the perfect child.”

13. For the good of your children’s self-esteem, avoid denigrating your ex-spouse in their presence, and ask members of the extended family to do the same. If you have nothing positive to say about your ex, try to put your children in contact with someone who does. The children do not need to know “the truth,” if that truth is negative about the other parent. Hearing negative things about a parent affects a child’s happiness. So, there is no legitimate reason to bad-mouth the other parent; even if that bad-mouthing is truthful. If your ex is truly a horrible person, it’s likely that your children will discover this fact on their own over time.

14. If the children point out your ex-spouse’s faults and question you about them, validate their feelings, By saying something like “I can see that you are upset.” You can also tell them that both parents are doing the best that he/she knows how.

By following these steps, you will be helping your children adjust to their new living situation. I will write more on this topic later.

Parent Alienation

Apr 18, 2015 | Blog, Child Custody, Family Law

It is common for divorcing parents to feel emotions such as anger, betrayal, loneliness, and sadness. And, when those emotions are experienced and dealt with in healthy ways, those parents are good role-models for their children, showing them how to deal with those kinds of emotions in healthy ways. But, in some cases, parents, unfortunately, engage in behaviors that can be extremely harmful to their children: they cause (possibly severe and permanent) emotional harm to their children by attempting to alienate the children from their other parent.

This process is known as “Parental Alienation” which has been defined as “a constellation of behaviors whose intent and effect is to destroy the present and future relationship between a child and the alienated parent.”When confronted about his or her alienating behavior, the alienating parent typically responds with either denial of having said or done what is demonstrably the case; or with some justification for the behaviors, typically along the lines of “the children being entitled to hear the truth.” And, of course, that “truth” is always that particular parent’s perception of “The Truth.” And, that “truth” shared with the children invariably shows the child’s other parent in a negative light. The important thing is that whether the statements are, in fact, true, they are, nevertheless, harmful to the healthy emotional development of the children involved.

That harm may result in the parent-child relationship’s being negatively impacted by “Parental Alienation Syndrome”(PAS). Children subjected to a campaign of Parental Alienation usually do not develop emotionally in a healthy way. Rather, they may become emotionally stunted. They are the collateral damage of a campaign of hatred directed against their other parent. Almost certainly, damaging their own children is not the goal of the alienation. But, the results are clear that damaged children are one of the results of the alienation.

Accordingly, Parental Alienation is treated as Child Abuse. This means that parents who are found to be engaging in Parental Alienation may lose custody of their children. And, they may have their access to their children supervised. Further, these parents may not be able to see their children until and unless these parents undergo counseling to understand the dynamic of the harm which they are causing to their children (they usually believe, initially, that they are not damaging their children, but are, instead, “supporting” them).

As it should be, allegations of Parental Alienation are treated quite seriously by the courts. And so, If you are involved in a child custody case in which Parental Alienation is alleged by you to be occurring, or if those allegations are being made against you, then you would be wise to seek the assistance of a skilled Family Lawyer who has handled these types of case. In our experience, too many of the lawyers involved in these cases are ill-equipped to present, or to rebut, the allegations of Parental Alienation made in these cases. They do not put in the time to become educated about the dynamics of this type of child abuse. And so, they deprive the court of valuable evidence about the allegation of Parental Alienation. Less than ideal court decisions, then, may result.

Importantly, when Parental Alienation is occurring, or is alleged to be occurring, time is not your friend. In order to protect your parental rights, and your children’s rights, you must act quickly. According to the experts in Parental Alienation Syndrome, if PAS occurs, then the emotional damage can be permanent or long lasting.

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