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.

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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)

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Protecting Children When a Parent Has a Substance Abuse Disorder

Jan 18, 2023 | Child Custody, Child Protective Services, Protective Orders

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

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

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

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

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

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

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

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

~David

 

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

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

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

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Having a Child Custody Case With Pending Criminal Charges Against You

Dec 18, 2022 | Child Custody, Family Law, Family Violence, Protective Orders

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

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

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

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

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

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

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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.

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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.

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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!

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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.

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How to Easily Lose Your Child Custody Case and How to Avoid It

Nov 23, 2021 | Child Custody, Family Law

Child custody cases are some of the most serious types of cases heard by our courts. And yet, many people shoot themselves in the foot with their own, silly behavior during their cases. They do this despite having paid thousands of dollars for lawyers, psychologists, mediators, and other professionals involved in these cases. And, they do it even though it works against what they are trying to accomplish by spending numerous hours working on their cases with the various professionals involved with their case. Let’s see some common ways that they do this.

Social media. Facebook, Twitter, Pinterest, and Tumblr are great ways to communicate with supportive people, and to present ourselves in our best light. Well, except for when we post pictures of ourselves misbehaving, or behaving irresponsibly, with our friends and coworkers. Think about that tag of you having fun at that special party or Happy Hour. Would you want that image to represent you a trial? If not, then don’t post it.

Also, if you are involved in a divorce, or contested child custody case, you should think twice about the urge to comment on your case; or, on the fitness of your child’s other parent. And it also doesn’t help your case to have a new romantic interest being interjected into your case by appearing prominently within your Facebook feed. At the very least, that opens up a new area of inquiry for others who are involved in your case. And, anything negative that is discovered about that new lover will be transferred to your character.

Keeping Information from your lawyer. Should I really have to explain why this is a bad idea? Your lawyer will try to present you, and your case, in the light most favorable to your case. It is difficult to do that, when your lawyer doesn’t have all of the facts, positive and negative. Your lawyer need to know all significant information about you during your litigation. That means from the beginning of the case, until that last Order is entered by the Court. With the positive information in hand, your lawyer can highlight it. And, as for the negative explanation, it can be considered and minimized before trial. Your lawyer cannot consider it, ask you about it, and counter it, if it is sprung at trial as a surprise. That puts your case at a disadvantage to where it would otherwise, likely, be.

Involving children in your parental relationship. Over the twenty-five (25) years that I have been practicing law in Texas, I have had the opportunity to represent lots of folks involved in contested Family law cases. While I truly believe that very few of them intend to harm their children, many are oblivious to the damage that they inadvertently do to these young people. Making negative remarks to a child, about that child’s other parent or family members is a behavior that is very hurtful to your child’s emotional well-being. And, it is unnecessary. You can establish your relationship with your child, and make that relationship just as strong as you want it to be, without disparaging your child’s other parent.

Making disparaging remarks about the other parent. Making detrimental remarks to a child, about that child’s other parent, is child abuse. It doesn’t matter if you truly believe or know that what you are saying is factual and accurate. It just doesn’t. It is still child abuse, because it harms your child emotionally, in ways that are all too similar to the emotional effects of physical abuse. That intentional infliction of harm is what is abusive.

Failing to shelter kids from hurtful information. The issue of truth is irrelevant to whether your children are harmed by hearing remarks that are negative about their parent. Hearing you make those remarks makes them think badly of the other parent; or to think badly about you for saying such things about the other parent; or both. This is true even if the child asks, even insists, upon knowing the facts of your case. And, this is true even if you believe that “my kids have the right to know what is happening, and why it is happening.”

You have the right to eat as many hamburgers as you like. Still, you might want to question whether eating a dozen of them a day is a healthy idea. Parents should act in ways that are healthy for their children, even if that means sheltering them from things that are harmful to them; like negative talk about their other parent.

Effects on Children. The mental health workers involved in child litigation are absolutely clear about the damage that such disparaging comments have on children. Children who are in the middle of ongoing parental conflict exhibit psychological symptoms similar to those who have been physically abused. Don’t make a negative comment about your child’s other parent (nor that other parent’s family) within the presence or awareness of your child. If you do so, then you might as well punch that child in the mouth. They are both wrong, hurtful, and child abuse.

Legal effects of involving children in parental conflict. As a practical matter, involving your child in parental conflict can cause Child Protective Services (CPS) to investigate you for emotional abuse of your child. They might even remove your child from you, and seek a court order requiring you to be psychologically evaluated, drug tested, and participating in counseling, in order for you to be able to have any contact with your kids. And, even if CPS does not get involved, your making such remarks to your kid (even if they are true) may very well lead a court to limit your rights to have contact with your kids, just like if your abuse was physical, rather than emotional. I have seen that happen. Courts do not tolerate involving children in parental conflicts. Please don’t do it.

Using your children as Messenger Pigeons. We just discussed how children should not be involved in your relationship with their other parent. Sending messages through your children is another way to involve them in the case in an unhealthy way. Your children should not feel like they are responsible in any way for your current relationship with their other parent. They should, instead, feel free to love and to enjoy being with both parents.

Interrogating your children. For some reason, there are parents who feel like it is ok to use their children as spies on the other parent. Parents who question their kids about what happens at the other parent’s house, or what the other parent is doing, are adding stress to their children’s lives, and are preventing their children from being able to just be kids, rather than be involved in parental conflict. Children should be able to focus on “kid issues,” such as their schools, extra-curricular activities, and who they think is cute, not why Mom and dad can’t talk to one another civilly, nor whether either of their parents is a bad person.

Failing to cooperate with your child’s other parent. A related concept to involving kids in ongoing parental conflict is causing them stress by one parent’s being unwilling to cooperate with reasonable requests made by the other parent. If you can switch weekends with the other parent, and that request is made by you, please be open to doing that. This kind of cooperation reduces the stress that a child feels, and also allows your child to experience things with the other parent that he or she might, otherwise, have to miss. You don’t want the court to think that you can’t or won’t co-parent your child. If the court makes that determination, then its orders will be more restrictive of you.

Role modeling poor behavior for your children. All of the items mentioned so far qualify as “poor parenting behavior.” If your child is exposed to them, then he or she may learn to believe that such behaviors are normal or healthy, when (of course) they are neither. But, parents sometimes exhibit other poor behavior to their children, such as drinking too much, drinking and driving, or abusing drugs. It should go without saying that doing any of those things in the presence or awareness of your child, is a quick way to lose your parental rights.

Inappropriately involving your lover in the child’s life. When one romantic relationship ends, it is normal and natural for us to be open to establishing a new love interest. The courts know this, but this must be done in a way that is healthy for your children. For example, if you introduce your child too soon to your love interest, then if that relationship ends, your child will experience the loss of another person in his or her life. And, if that happens on several occasions, then your child will also see that your relationships are uncommitted and short-term. The lesson that you would be teaching your child is that romantic relationships are supposed to be temporary. That is hardly a good attitude for your child to take into his or her own marriage, or even, other serious relationships. It is a way to set your child up to fail.

Failing to follow court orders. Many Family Courts today have so-called “Standing Orders” which go into effect upon the filing of a case involving a child. These orders typically prohibit certain behaviors and are enforceable by jail time, if violated. During the case, your court may also enter other orders. Failing to comply with any court order is a good way to have the court limit your parental rights not to mention sanction you, fine you, or put you in jail. Also, most attorneys will withdraw from representing you because of that blatant disregard for the authority of the court.

Conclusion. Those items mentioned in this piece are but a few of the more common ways that parents mess-up their child custody cases. Of course, there are others. What these mistakes all amount to an unwillingness or inability to act as a responsible parent. When emotions are running high, such as during the litigation of one of these types of cases, we may have a natural tendency to be carried away by that strong emotion. Your demonstrated ability to resist that temptation and to behave in a manner that is healthy for your kids, should favorably impress the court. That is a great way to get started winning your child custody case!

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Coronavirus: Can Texas force Parents to Quarantine Their Kids (and themselves)?

Mar 6, 2020 | Child Custody, Family Law

It was reported earlier this week that with the number of Covid-19 corona virus cases increasing, the 11 regional presiding judges in Texas earlier this week began appointing judges within their respective region to be available to process cases where infected people refused to self-quarantine. The Texas Office of Court Administration[1] is in charge of this project. When can someone be forced into quarantine, and what are the criteria for making that decision? That is what we will discuss today.

Since there have been no reported cases in Texas where a person infected by the Covid-19 coronavirus has refused to self-quarantine, this week’s actions are merely precautionary. According to personnel at John Peter Smith Hospital in Fort Worth, Texas who I spoke with on March 5, 2020, they have previously had to require patients infected with tuberculosis to be quarantined, when those patients refused to self-quarantine themselves. So, the potential refusal of a patient infected with Covid-19 to self-quarantine should not be surprising.

The Communicable Disease Prevention and Control Act[2] provides the procedures, jurisdiction, and requirements, to force someone to be quarantined against that person’s will.

That act provides that “(t)he state has a duty to protect the public health. Each person shall act responsibly to prevent and control communicable disease.”[3] That act expressly provides that the individual may be isolated or quarantined in an appropriate facility and shall obey the rules, orders, and instructions of the department or health authority while in isolation or quarantine.” and, that during a “emergency or an area quarantine,” such persons may be forcibly treated.[4] So, the question remains about when can that can happen.

Our District Courts have jurisdiction of these cases,[5] and get involved with them when a health authority requests a “court order for the management of a person with a communicable disease” by filing a sworn application through “a municipal, county, or district attorney.”[6] Part of that application includes a medical evaluation and/or a copy of any administrative order finding “reasonable cause to believe that an individual is ill with, has been exposed to, or is the carrier of a communicable disease,”[7] which authorized the forced quarantine of a person prior to seeking the court order.

When an application for management (quarantine) of a person is filed, the court must appoint each individual a “an attorney to represent (him or her) not later than the 24th hour after the time” that the application is filed.[8] Then, the court must set a hearing for at least 3 days, but no more than 14 days, later, unless either a quicker hearing, or a delay (“continuance”), is requested by the individual.[9]

Prior to that hearing, the state may request that the person be held in protective custody.[10] That is done by the filing a motion and affidavit stating that there is reason to believe that the person meets the criteria to mandate quarantine upon that person.[11]

On the basis of that motion and affidavit, the court may issue an order for protective custody of the person, prior to the hearing on the application for management (quarantine), if the court determines that “the health authority or department has stated its opinion and the detailed basis for its opinion that the person is infected with or is reasonably suspected of being infected with a communicable disease that presents an immediate threat to the public health; and that the person fails or refuses to comply with the” requested quarantine).[12] The person may be apprehended and transported to a designated facility, to remain until a hearing occurs.[13]

The next step in the process is setting, and notifying, the person and his or her attorney of a “Probable Cause” hearing,[14] to determine whether there is probable cause to hold the person until a final hearing can be had.[15] This hearing must occur “not later than 72 hours after the time that the person was detained under the protective custody order.”[16] The person who is the subject of the proceeding may introduce evidence to challenge the allegations made against him or her.[17]

At the conclusion of the Probable Cause hearing, “The magistrate or master shall order that a person remain in protective custody if the magistrate or master determines after the hearing that an adequate factual basis exists for probable cause to believe that the person presents a substantial risk of serious harm to himself or others to the extent that the person cannot remain at liberty pending the hearing on the application.”[18]

With those preliminary matters taken care of, the court can then consider the underlying application for management of the person who is the subject of the case. At that hearing, in order to prevail, the state must prove by clear and convincing evidence that the person:

  • is infected with or is reasonably suspected of being infected with a communicable disease that presents a threat to the public health;
  • has refused or failed to follow the orders of the health authority if the application is for inpatient treatment; and
  • meets the applicable criteria for orders for the management of a person with a communicable disease.”[19]

Unless the state can meet that high burden of proof, the person must be immediately released.[20]

The goal of protecting public health must be balanced with the individual liberties of people. To prevent state health authorities from over-reacting, and thereby, wrongly depriving us of our freedoms, the laws regarding quarantine provide numerous safeguards. The state cannot arbitrarily decide to quarantine people. Instead, they can only do so when they have sufficient evidence to support that action.

 

[1] According to its website, “The Office of Court Administration (OCA) is a unique state agency in the Judicial Branch that operates under the direction and supervision of the Supreme Court of Texas and the Chief Justice.

Our mission is to provide resources and information for the efficient administration of the Judicial Branch of Texas.”

 

[2] HEALTH AND SAFETY CODE TITLE 2. HEALTH SUBTITLE D. PREVENTION, CONTROL, AND REPORTS OF DISEASES CHAPTER 81. COMMUNICABLE DISEASES

[3] Subchapter G, Sec. 81.002 of the Communicable Disease Prevention and Control Act (hereinafter “the act”)

[4] Sec. 81.009(a)

[5] Sec. 81.157 & 81.151.(b) of the act

[6] Sec. 81.151(a) of the act.

[7] Sec. 81.083(b) of the act

[8] Sec. 81.153(a) of the act

[9] Sec. 81.154 of the act

[10] Sec. 81.161 of the act

[11] Sec. 81.161 of the act

[12] Sec. 81.162(a) of the act

[13] Sec. 81.163 of the act

[14] Sec. 81.164 of the act

[15] Sec. 81.165(a) of the act

[16] Sec. 81.165(b) of the act

[17] Sec. 81.165(d) of the act

[18] Sec. 81.166(a) of the act

[19] Sec. 81.171(a) of the act

[20] Sec. 81,171(b) of the act

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Parenting With a High Conflict Co-Parent

Feb 22, 2020 | Child Custody, Family Law

We have previously written about parenting with a high conflict ex, (parts 1-4). Those articles can be found here. In one of those articles, we discussed when a Parenting Facilitator or Parenting Coordinator can be appointed, and the process of obtaining parenting facilitation. In this article, we will discuss the work of the Parenting Facilitator (PF) or Parenting Coordinator (PC), and the necessary qualifications of these professionals. The difference between the PC and PF is whether the proceedings are confidential. For our purposes today, we will refer to both processes as “Parenting Facilitation” done by a “Parenting Facilitator” or “PF.”

The court must specify the duties of the PF, which may include some or all of these areas:

(1) identifying disputed parenting issues;

(2) reducing misunderstandings;

(3) clarifying priorities & goal setting

(4) exploring possibilities for problem “solving,” rather than “blame” for problems;

(5) developing methods of collaboration in parenting;

(6) understanding parenting plans and reaching agreements about parenting issues to be included in a parenting plan;

(7) complying with the court’s orders regarding conservatorship or possession of and access to the child;

(8) implementing parenting plans for the benefit of the child or children;

(9) obtaining training regarding problem solving, conflict management, and parenting skills; and

(10) settling disputes regarding parenting issues, and reaching a proposed joint resolution or statement of intent regarding those disputes.

In a nod to pragmatism over formality, meetings between the Parenting Facilitator and the parties may be informal, and are not required to follow any specific procedures not otherwise required by law.

Importantly, the appointment of a Parenting Facilitator does not divest the court of its exclusive jurisdiction to determine issues of conservatorship, support, and possession of and access to the child; nor, the authority of the court to exercise management and control of the suit. And, the PF may not modify any order, judgment, or decree. The Parenting Facilitator must comply with the Ethical Guidelines for Mediators as adopted by the Supreme Court of Texas.

The Qualifications of the Parenting Facilitator

Your court will determine the required qualifications of the PF, provided that s/he must have experience working in a field relating to families, have practical experience with high-conflict cases or litigation between parents, and; hold at least either:

  1. a bachelor’s degree in counseling, education, family studies, psychology, or social work;  or a graduate degree in a mental health profession, with an emphasis in family and children’s issues;

 or

  1. be licensed in good standing as an attorney in this state.

Additionally, s/he must complete at least:

(1) eight hours of family violence dynamics training provided by a family violence service provider;

(2) 40 classroom hours of training in dispute resolution techniques (such as mediation) in a course conducted by an alternative dispute resolution system or other dispute resolution organization approved by the court; and

(3) 24 classroom hours of training in the fields of family dynamics, child development, family law and the law governing parenting coordination, and parenting coordination styles and procedures.

In appropriate circumstances, a court may, with the agreement of the parties, appoint a person as parenting coordinator who does not meet all of those requirements, if the court finds that the person has sufficient legal or other professional training or experience in dispute resolution processes to serve in the capacity of Parenting Facilitator.

Successful Co-Parenting can be difficult. It takes work, and a willingness to explore different ways of working with your ex. But, your child will benefit from having successful co-parents. That is why we make the efforts, even when they are initially awkward or uncomfortable. A good Parenting Facilitator can guide you through that process.

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Can CPS Remove Your Child from YOU Because of What The Other Parent Has Done?

Jul 22, 2019 | Child Protective Services, Family Law, Family Violence

Child Protection Services (CPS) exists, and is often needed, to protect children from abuse or neglect. When it is not safe for a child to live with a parent, then we, as a society, need to have the ability to protect those children, by removing them from their homes, and placing them somewhere safe. That is our law. When only parent is the problem, however, the application of that law to the innocent parent can be unfair.

As background to the problem, Texas law provides that when CPS removes a child from a parent, either with or without a court order , the child’s parents are entitled to appear before the court to contest that removal (usually within 14 days of the removal). This proceeding is called an “Adversary Hearing.” If, after the Adversary hearing is conducted, the court upholds the removal of the child, then that court will typically order the parents to participate in, and complete, certain specific services related to the reason that the child was removed; like counseling, drug and alcohol assessments, psychological evaluations, random drug testing, parenting classes, and so on.

A problem can arise when the court upholds the removal of the child, but only one parent is responsible for that removal. Texas law allows the court to order both parents, including the “non-offending”(innocent) parent to complete services, like those discussed above. In my experience, that is what usually happens after an Adversary Hearing. Importantly, if either parent fails to complete those services, then the court could terminate that parent’s parental rights, even if that parent is innocent and was not at all responsible for the child’s unsafe environment. So, if, for example, Mom is using drugs with her boyfriend in the home with the children, and CPS receives a report about that circumstance, CPS can remove the children from Mom’s home; the court can uphold that removal, and order both Mom and Dad (who was not using drugs) to complete a list of services. If Dad is unable to work his schedule so that he can spend four (4) hours with a psychologist being evaluated; attend counseling, submit to random drug tests, and so on, then the court could terminate his rights to his kids; even though he is a non-offending (innocent) parent.

Because of this problem, there was a bill proposed in the Texas house of Representatives, during 2019: the Child Trauma Prevention Act (House Bill 3331), which would have addressed this situation. Unfortunately, that bill did not become law. Consequently, the problem described in this article still exists, as of the time of this writing. Anyone interested in working to address this situation should contact” their representatives in the Texas House of Representatives, and Texas Senate; the Texas Home School Coalition Association; or, the Texas Public Policy Foundation (TPPF).

1 In an emergency situation, CPS can remove children from an unsafe place before presenting evidence to a court to obtain an Order authorizing the removal. Otherwise, a court order is required prior to removal.
2 By finding that “there was a danger to the physical health or safety of the child…which was caused by an act or failure to act of the person entitled to possession and for the child to remain in the home is contrary to the welfare of the child” TFC  262.201 (g) (1); also, that “the urgent need for protection required the immediate removal of the child and reasonable efforts , consistent with the circumstances and providing for the safety of the child, were made to eliminate or prevent the child’s removal; and” TFC  262.201 (g) (2) “reasonable efforts have been made to enable the child to return home, but there is a substantial risk of a continuing danger if the child is returned home.” TFC  262.201 (g) (3).
3 The bill passed the House committee with no witnesses testifying against it. However, the bill died in the House Calendars Committee because an unknown member of the committee stalled the bill until it died on a deadline.

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Grandparent Rights

Apr 1, 2019 | Child Custody, Family Law

There are a number of circumstances in which a person might ask a Texas court for custody, or possession and access to, a child. A couple of the more common circumstances are when the child has been left by the parent for a long time, or when both of the child’s parents have passed away (there are other particular circumstances, too, which are beyond the scope of this article). In addition to those situations mentioned above, the Texas Family Code makes special provisions for a Grandparent, or certain other relatives,[1] to seek custody of, or possession and access to, a child.

The process begins with the Grandparent or other relative filing a lawsuit requesting custody of, or possession and access to, the child.  Because the United States Supreme Court has held that “the interest of parents in the care, custody and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this court,” certain things must be alleged in the lawsuit when it is filed, and later proved, in order for the Grandparent’s requests to be granted. Those things are that the child’s present circumstances would significantly impair the child’s physical health or emotional development.

A case where the child’s parents are using drugs might qualify. Cases of abuse or neglect would qualify. Other circumstances might also qualify. The requirement is that the child is being, or will likely be, harmed unless the Grandparent’s requests are granted. And, since “emotional development” is a type of harm which qualifies, there does not have to be physical abuse in order for the Grandparent to prevail in their case. Just what type of emotional harm would qualify does not seem to be definitively stated within the statute, nor specified by Texas courts.[2]

This Texas law allows concerned relatives to rescue children when the children are unsafe with their parents. And, it also acknowledges the special rights that fit parents have in raising their children. The U.S. Supreme Court has held that among those rights is the right of having their children associate with people whom the parent chooses. So, if a fit parent decides that it is not good for his or her child to be around a Grandparent (or, for that matter, just about anyone else), then that parent is entitled to deny the Grandparent the right to visit with his or her Grandchild.

An important thing to remember is that while courts presume that fit parents make good choices for their children, there is no such presumption for unfit parents. And, just because those decisions by fit parents are “presumed” to be in their children’s best interest, does not mean that those decisions cannot be proved be against (contrary to) the children’s best interest.

Texas law tries to balance the rights of parents to raise their children how they want to, with the duty of the state to protect children from harm. Because those two items are often in tension with one another, it can sometimes be difficult to say which specific fact situations allow one of them prevail of the other.

If you think that you might have a child custody case, then you might find useful information in these articles about How Custody Cases are Won, and How to Not Lose Your Custody Case

I hope that you have enjoyed this article. Please feel free to give us feedback about it!

[1] aunt, uncle or great-grandparent

[2] Other states likely have similar, but different requirements, so an attorney in the state where the children reside should be consulted for advice about Grandparent Rights in that particular state.

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Parenting with a High-Conflict Ex (Part 4)

Feb 23, 2019 | Child Custody, Family Law

Initial Steps That You Can Take

In the first three articles of the series, we have discussed things to do, along with what to avoid, when attempting to parent a child(ren) with someone who is disrespectful, rude, or dismissive of you and your parenting preferences. A review of those articles (Part 1 , Part 2, and Part 3 of this series) will bring you up-to-speed on good ground rules and practices that you should be using, if you find yourself in this situation.

Additional Help for You

When dealing with a high-conflict person, it is reasonable to expect that some level of parental conflict will likely remain, since such people tend to be relentless in their demands for unilateral control of their children. You must decide whether that level of conflict is manageable and, thus, acceptable; or, whether more needs to be done to manage the situation. If you decide that you would like for more to be done to resolve the conflict, then an often-effective process is to have the court appoint a Parent Facilitator (a neutral, third-party expert) to work with the parents on identifying problems, and implementing solutions.[1]

Court requirements of the Parents

When the court appoints a Parent Facilitator, both parents are Ordered to attend meetings with the Parent Facilitator, and to meaningfully participate in the facilitation process. This is important, because the high-conflict parent will almost certainly resist having anyone else discuss parenting issues with him or her. They usually are convinced that they know best, and anyone trying to discuss parenting with them is “interfering.”  And so, they should be ordered by the court to attend, and to meaningfully participate in that process.

What if One Parent Refuses to Participate?

If one of the parents, usually the high-conflict one, refuses to follow the court’s Order, then what happens? One advantage of a Parent Facilitator over a Parent Coordinator is that the Parent Facilitator will be required to submit reports to the court, which will discuss: his or her efforts to schedule facilitation meetings with the parents; whether progress is being made in those meetings; whether the process should continue, and so on.[2] Knowing that to be the case, both parents usually will be motivated to attend meetings, discuss parenting issues, and work on implimenting solutions, so that the Parent Facilitator’s report will not reflect a lack of participation by that parent (although the high-conflict parent will initially probably “discuss” how the other parent is bad or wrong, and how that other parent should just accept and appreciate the wisdom of the high-conflict parent). The court, of course, has various remedies to mandate that either its Orders are followed, or significant consequences occur, such as a finding of contempt-of court, and/or a change to the Orders pertaining to the parents and child.

When can a Parent Facilitator be Appointed?

The Texas Family Code provides that in order for a court to appoint a Parenting Facilitator, the court must determine that the case is either a high-conflict one, or that there exists good cause for such appointment. And, as with all Orders pertaining to children, the court must find that   that the appointment is in the best interest of the child. This determination by the court may be made following an agreement of the parties presented to the court, or after a hearing is set, and testimony, along with other evidence, is presented to the court.

Conclusion

Today, we discussed the basics of having a neutral, third-party expert, a Parent Facilitator, assist the parties manage their parenting relationship when it is high-conflict. In the next post, we will delve into the specific procedures and techniques used in that process, and what you can expect to occur in Parent Facilitation.

[1] State such as Texas allow judges to make these appointments in certain circumstances (one of those circumstances is when the case is found by the court to be high conflict.

[2] The other difference between the two (2) positions is that a parenting facilitator may also monitor the parties’ compliance with court orders.

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Parenting A Child With A High Conflict Ex (Part 3)

Oct 23, 2018 | Child Custody, Divorce, Family Law

When a romantic relationship ends, whether by divorce or otherwise, parents often find that their residual emotions spill over into their dealings with one another as they try to work together to parent their children. This can, obviously, pose difficulties in a shared child custody arrangement. We have previously discussed techniques which you can use to mitigate conflict when attempting to co-parent with someone who cannot, or will not, treat you politely and with respect. A review of those articles (Part 1 and Part 2 of this series) will give context to the information which we are discussing today.

One of the recommended techniques to resolve this conflict is putting in place (ahead of time) a method for resolving parenting disagreements outside of court. That way, disagreements can be resolved relatively quickly, easily, and inexpensively. To be successful, that method must consider, and be respectful of, each parent’s, thoughts, views, and wishes about the decision to be made. It can, then, be supported by the court, if challenged by a disgruntled parent who thinks that he or she should be able to unilaterally make decisions about the child or children.

Examples of decisions which parents might disagree about are educational decisions, such as whether to “hold a child back” in a particular grade for a school year; whether to enroll the child in Advanced classes; which electives a child will take; or, whether to have your child “skip” a grade. Other examples are medical decisions, such as whether to have a child start taking medication, say for ADHD or clinical depression; or to start counseling, or undergo surgery or other medical treatment.

One effective dispute resolution method involves writing into the court order a “tie-breaking” procedure, whereby the parents would present their disagreement to someone whom they have previously agreed is a logical person to weigh-in on the matter at hand. The parents might agree, for example, that if they cannot agree on one or more educational decisions for their child, they will allow the child’s school Principal to cast the tie-breaking vote on the decision, after conferring with the child’s teacher, counselor, nurse, or other personnel relevant to that decision.

Similarly, for medical decisions, the parents might agree in advance, or the judge may order, that the child’s Primary Care Physician will cast the tie-breaking vote regarding these decisions. The doctor would first consult with the child, each parent, and any other relevant healthcare professional (such as a medical specialist), prior to making the decision.

Those professional people casting the tie-breaking votes presumably have the child’s best interests at heart. And, they can look at these decisions through their professional education, training, and experiences, without having to wade through the emotional baggage between the parents. Ideally, this process results in a high likelihood that a reasonable decision will be made for your child.

We have been using these types of tie-breaking procedures for our clients since the 1990’s. Over those many years, we have found that these types of tools often keep high- conflict parents from getting “stuck” when trying to make those important decisions for their child which will, inevitably, arise from time-to-time; and, doing so, without our clients having to rehire us to go back to court over the decision.

When a disagreement on a parenting decision occurs, having a process in place which allows a dispassionate professional person to assist in the decision-making, allows stability for the child to occur.

 We appreciate your attention to this article,and would welcome any questions or comments about it which you may wish to send to us from this website. That is all for now. Plan for potential problems with co-parenting, so that you can keep doing what is the very best for your kids!

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Parenting A Child With A High Conflict Ex (Part 2)

Aug 20, 2018 | Child Custody, Family Law

As mentioned in this prior article, reducing the contact and communication between parents who highly-conflict with one another is usually beneficial for a child or children, everything else being equal. One of the effects of these reductions, however, is that “regular” co-parenting will not work. These parents will, instead, “Parallel Parent” their child or children.

According to Edward Kruk, Ph.D., “Parallel parenting is an arrangement in which divorced parents are able to co-parent by means of disengaging from each other, and having limited direct contact, in situations where one or both may have demonstrated that they are unable to communicate with each other in a respectful manner.” What this means is that these parents will not seek input from one another on parenting issues, in order to make consistent rules and policies for the child. Instead, each will parent as he or she sees fit during their respective periods of possession of the child. So, the rules and expectations for children when they are with Mom, will likely be different from those when they are with Dad.

The goal of this arrangement is to protect the children from being in the middle of ongoing disagreements and hostilities, while preserving their relationships with both parents. Conflict is reduced. And, the child is able to benefit from, and enjoy, respectful relationships with each parent.

On some matters, such as educational and medical decisions, the input of both parents is ideal, even when they are Parallel Parenting. The communications related to those decisions are usually made in writing, and exchanged by approved means, such as via Our Family Wizard. The discussions should remain factual and on topic; with neither parent attacking the other one, nor questioning the motives or decision-making abilities of the other parent.

From my experience, however, when the high-conflict includes some degree of attempted Parental Alienation, or on-going Family Violence, parents are typically unable to make even these important decisions for their children in a respectful manner. In those cases, it is better if either one (1) parent is assigned to each of the decisions to be made (it may be the same parent for all decisions, or they may be split between the parents, in some manner); or, a tie-breaking system (which I intend to discuss in more depth in a later blog post) is implemented. In cases where one (1) parent makes decisions, after those decisions are made, the parent who made the decision will be ordered to timely notify the other parent of the decision, within a specified time frame.

Parents who use Parallel Parenting rarely need to ever see one another outside of their children’s school or extracurricular activities. Exchanges are typically done by dropping-off the child at school (or daycare), when in session; and, at some other public place, without speaking to one another, when not in session. When one parent drops-off a child at school or daycare in the morning, and the other picks-up that child in the afternoon or evening, these parents don’t have to even encounter one another. And, when exchanges are done in silence, at a public place, their contact with one another is intentionally brief. With other people around, the likelihood of conflict occurring between the parents is significantly reduced.

As the divorce or other separation of the parents from one another becomes less recent, many parents find that they are able to interact respectfully with one another. And so, in those instances, the strict procedures for interactions and communications with one another become less necessary. But, for some parents, the intensity of the conflict remains; as if, one or both of these parents has decided to make fighting with the other parent, a theme of their remaining years on this planet (This seems to often be the case with narcissists, psychopaths, Machiavellians, and sadists—the so-called “Dark Triad.”) With these parents, the Parallel Parenting can continue until the children are adults.

Children deserve to be loved, protected, and nurtured. They, also, deserve to have quality relationships with both of their parents, so long as each parent can move beyond any emotion lingering from the divorce or other break-up, and can parent in a manner that is in the best interest of their child(ren). For some adults, Parallel Parenting provides a reasonable choice to allow those things to happen.

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Dealing with a High-Conflict Ex (Step 1)

Jun 14, 2018 | Child Custody, Family Law

It is well established that healthy parents provide stability to their families. As children grow, learn, and work to figure-out how to be and thrive in this world, they derive security from parental love, support and protection. That security allows them to develop as they should. And, even if their parents do not live together, children tend to thrive if they feel that both parents are still there for them.

On the other hand, we know from numerous studies that Parental Conflict can be a source of continual pain for our children — whether the parents are married or divorced. According to Larry M. Friedberg, Ph.D., “enduring conflict between divorcing parents is one the most significant risk factors for children of divorce.” And, such conflict, which may include one or more incidences of domestic violence, is considerably more likely to occur at or near the time of divorce.

As you might expect, in most of those cases, the conflict significantly declines during the 1 to 3 years immediately after divorce or separation. But, according to Judith Wallerstein, Ph.D., in a surprisingly large percentage of those case (10-25%), conflict remains elevated even after 3 years have lapsed since the divorce or separation occurred. The kids in those families are the ones at greater risk. The first step in working effectively with them is the topic of this writing. Other steps will be discussed in later posts.

It used to be thought that shared parenting was harmful to children when there was on-going high-conflict between the children’s parents. The yelling, name-calling, and unfriendly behaviors between the parents traumatize the children, to a greater or lesser extent, each time that they are experienced. Edward Kruk, Ph.D. notes, however, that recent observations of high-conflict families reveals that reducing the contacts that each parent has with the other one reduces negative effects experienced by their children. And, with that negativity reduced, children often benefit from shared parenting.

Accordingly, parental contact with children should not be reduced simply because there exists high-conflict between those children’s parents. In fact, everything else being equal, such contact is usually beneficial to children. Rather, the contact between the parents should be reduced and/or regulated. One example of this is having exchanges of the child occur at the child’s school, daycare facility, or other neutral, public place. Another one is having the court Order that all communications between the parents (except in the case of an emergency) occur only via court-ordered means, such as via Our Family Wizard—a program which allows the court to easily review those communications, if requested by a parent to do so).

Importantly, those ideas do not apply where there is more than merely high-conflict occurring, such as where there is violence (used or threatened against a parent), or when Parental Alienation is occurring. Both of those occurrences are treated as child abuse. In those cases, other measures are typically called for. I have written on Parental Alienation and Legal Protections Available for Family Violence. Neither of those should be dismissed nor minimized, since each of them can have devastating impacts on children, as well as the victimized parents.

Children need to have relationships with two healthy parents. Barring that, they, at least, need to be protected from unhealthy interactions between their parents.

 In our next post, we will discuss other beneficial steps to take when dealing with a high-conflict parent.

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Legal Protections Available for Family Violence

Nov 23, 2017 | Family Law, Child Custody, Child Protective Services, Family Violence, Protective Orders

Last month, we started this conversation by discussing the Court Orders that are immediately available to victims of Family Violence; some, even before the Protective Order case has been filed. Those orders are designed to offer legal protection to victims right away, before there is time for proper notice and a hearing to occur. This is, obviously, very important, so all of that information is available here. With those immediate protections in place, we can now look to what happens next.

Starting the Protective Order Case

The case is initiated by the filing of an Application for Protective Order (by or for “the applicant’). Upon that filing, a Temporary Ex Parte Protective Order can be requested to offer immediate protection to the applicant; and, the Court is required to schedule an evidentiary hearing. In most Texas counties, that hearing must be set to occur within fourteen (14) days of the filing of the Application for Protective Order. In very large, or very rural counties, however, that hearing can be scheduled to occur as many as twenty (20) days after the Application is filed. Importantly, if obtained, the Temporary Ex Parte Protective Order should be in effect up to the date of the hearing.

The Protective Order Hearing

The Protective Order hearing is a trial. As such, the parties, and any other witnesses, can be called to provide testimony. That testimony will be about the allegations made within the Application for Protective Order filed by the applicant. Importantly, any witness called to testify at the hearing may be cross-examined by any other party to the case. And, usually, the witnesses will not be allowed to hear the testimony of the other witnesses, nor to discuss testimony with other witnesses, so that their respective testimonies will not be influenced by what they would hear other witnesses testify to at the hearing (at least, that will be the case if your lawyer makes a proper request to the court for sequestration of the witnesses).

Other Evidence Considered by the Court

In addition to witness testimony, relevant photographs, recordings, documents (such as medical, or police, reports), and other relevant evidence can be introduced as evidence (caution: each of these types of demonstrative evidence requires sufficient evidentiary predicate in order to be admissible over the objection of another party to the case, so it will be necessary to coordinate those foundations with your lawyer ahead of time). In addition to the evidence introduced by the parties, the Presiding Judge may ask questions to clarify what happened between the parties to the case.

 The Court’s Judgment

After all of the evidence and argument has been presented, and any questions posed by the Judge have ben answered, the court will make findings about: the nature of the relationship that exists between the parties to the case; whether the Respondent committed “Family Violence;” and, if Family Violence did occur, is it likely to occur in the future? Based on all of those findings, the court will either grant the requested Protective Order, or deny the request for that Order.

Conclusion

Family Violence is a serious matter, and our courts treat allegations of Family Violence quite seriously. Whether you are a victim of such violence, or one who stands accused of committing Family Violence, it is important that you take the case seriously, since its outcome will have serious effects.

Divorce

When Family Violence occurs in a marriage, divorce often follows, or is threatened. If you feel that may be the case with you, then you should learn how to get prepared for a divorce case.

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Legal Protections for Family Violence (Part 1)

Oct 23, 2017 | Family Law, Child Custody, Child Protective Services, Family Violence, Protective Orders

Sadly, Family Violence occurs far too often in Texas (as well as worldwide). According to the Texas Council on Family Violence, 158 women were killed by a male intimate partner in 2015; and, shockingly, 1 in 3 Texans will experience domestic violence in their lifetimes. If you are one of these victims, then please contact a helping organization such as Denton County Friends of the Family or the Department of Texas Health and Human Services’ Family Violence Program for 24-hour help, including emergency shelter services.

Temporary Emergency (Magistrate’s) Order

The purpose of the magistrate’s order is to prevent the defendant from inflicting further harm on the victim after an arrested person is released from confinement, but before a higher court has considered an application for a Protective Order. Under Texas law, a Magistrate can issue one of these emergency orders after a perpetrator has been arrested for certain crimes involving Family Violence, stalking, or sexual assault. The order can issue on the magistrate’s own motion or upon the request of the: • victim; • victim’s guardian; • a peace officer; or • the state’s attorney. If issued by the Magistrate, the order will last from 31-61 days, unless a weapon was used, in which case it can be in effect for 91 days. While those periods of time are short, they should be long enough to allow the victim to seek a longer-lasting Protective Order from a higher court.

These emergency Protective Orders have some advantages over the other available Protective Orders: for instance, a hearing is not required before this emergency order can issue; it does not require the defendant and the victim to have any specific kind of relationship with one another (and so, can be issued to protect the victim from a stranger); and, it is issued before the defendant is released from jail. With this type of Protective Order issued, the victim then has an opportunity to seek additional Protective Orders, one of which is discussed below, while the Magistrate’s Order is in effect; thus, providing the victim with some immediate protection.

Temporary Ex Parte Protective Order (issued by District Courts & some County Courts)

A victim may file an application seeking this type of order. This is usually done by an attorney retained by the victim, or by the local District Attorney’s Office. Unlike the emergency order discussed above, this order does not require that an arrest has been made.

The Application for Temporary Ex Parte Protective Order is sworn to (like an affidavit of fact), filed with the appropriate clerk, and then presented in person or by attorney to the Judge presiding over the court in which the application pends. Then, “If the court finds from the information contained in an application for a protective order that there is a clear and present danger of family violence, the court, without further notice to the individual alleged to have committed family violence and without a hearing, may enter a Temporary Ex Parte order for the protection of the applicant or any other member of the family or household of the applicant.” TFC sec. 83.001. That order “may direct a respondent to do or refrain from doing specified acts.” Ibid.

This type of order may, in certain circumstances, provide for the removal of the target from a residence. This order is good for only twenty (20) days, although it might be extended once for a period of time not to exceed twenty additional days. It is intended to offer protection to the applicant until an adversarial hearing can be had by the court during that twenty-day period of time. The adversarial hearing is one in which the target of the Temporary Ex Parte Protective Order is given proper notice of the hearing, and is allowed to oppose the entry of a longer Protective Order, by testifying, calling witnesses, and entering other evidence and argument. This hearing will be discussed in Part 2 of this subject, in a later blog post.

For too long, the plague of Family Violence has not been properly addressed by society. It is now treated by law enforcement and our judicial system as the criminal behavior that it truly is. As more victims come forward for protection and justice, this trend should continue. The days of remaining silent to this scourge are gone.

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