How to Get Your Kids Back From CPS

So, CPS has removed your children from your home: is there any chance that you can get them back? The short answer to that question is “yes.” To start with, CPS is only authorized by law (Chapter 262 of the Texas Family Code) to remove children from their home when facts exist that would “satisfy a person of ordinary prudence and caution to believe that there is an immediate danger to the physical health or safety of the child, or the child has been a victim of neglect or sexual abuse, and that continuation in the home would be contrary to the child’s welfare.

If CPS makes that removal, and you disagree with their decision to do so, then you have the right to have a hearing in court (called an “Adversary Hearing”), no later than fourteen (14) days after that removal of your children occurred. And, during that proceeding, you or your lawyer has the right to cross-examine the witnesses called to testify by CPS, testify yourself, and present your own witnesses and other evidence to a Judge. At the end of that hearing, you will get your kids back unless CPS can convince the court that your children were in danger when the removal occurred; and, that they should not be immediately returned to your home. For a more detailed discussion of these topics, see “When can Texas CPS remove a child from your home?

If you find yourself in the position of having your kids removed by CPS, then I truly hope the court finds that your kids should be returned to you after the hearing discussed above takes place. But, all is not lost even if your kids are not returned at that time. The court can Order their return at any time during the case.

When do courts Order that children who were removed from their home by CPS be returned to their parents? They do so when the parents of those children have demonstrated that they are able and willing to provide their children with a safe home. That means different things in different cases. For some parents, it means their staying clean and sober so that they can properly attend to their children. For others, it means eliminating the threat of domestic violence by attending and meaningfully participating in appropriate counseling. For some folks, it means becoming able to provide their children with the basic necessities of life, such as food, water, safe shelter, clothing, and so on. In each case where the initial removal is upheld by the court (as discussed above), the court will Order specific things that the parents will need to do in order to have their children returned to them.

Those things that parents must do are spelled-out clearly, but they are not usually easy for parents to do, since it involves their making one or more serious changes in how they live their lives. But, since the reward for doing those things is having their children returned to them, what reasonable parent would not try his or her hardest to do them?

Do you wonder what you should do if CPS is investigating you? Check-out this article for tips and suggestions.

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CPS Is Investigating Me: What Do I Need to Do?

According to the most recent statistics available, approximately 3,200,000 children are investigated each year by the various Child Protective Services agencies operating within the United States of America. Of course, not all of those investigations result in findings of abuse or neglect. And, while no one who has been through that experience would call it “enjoyable,” we, unfortunately, have no system of investigating child abuse or neglect which is perfect at avoiding putting innocent parents through such investigations.

The purpose of this writing is to lay-out some ideas on what you can do if you find yourself being investigated by CPS.

The first thing to do is to remain calm. This lets you converse intelligently with the CPS case investigator with whom you are dealing.

If at all possible, record the exchange with the CPS investigator, perhaps on your phone. That recording will allow everyone who may become involved in your case (such as any attorney appointed to represent your child, your attorney, the CASA representative assigned to your child, and the Judge or Jury) to see how the exchange took place. The goal is for you to look reasonable and appropriate.

If you are told that an abuse or neglect complaint has been filed regarding your child, politely ask for the details of the complaint—something beyond just a general statement that there has been an allegation of abuse or neglect—what conduct, specifically, was alleged? Who was alleged to have engaged in that conduct? When did the conduct in question allegedly occur? You may not be provided all of that information, but you are entitled to request it. And, if CPS appears on your recording to not be cooperating with you, then that may be used as evidence at any trial that may result from the investigation.

You do not have to speak with CPS before consulting with a lawyer. You can politely tell the investigator that you wish to speak with your lawyer before you speak with CPS. That is often a good idea, depending on the allegations that are being made against you.

If the investigator requests to see your child, then allow that to happen. But, stay present and (hopefully) record the interaction between your child and the investigator.

In Texas, CPS will typically interview a child who is alleged to have been abused or neglected, and who is old enough to communicate intelligibly. That interview will be recorded. It is best to not coach your child about what to say, prior to that interview. The child’s statements should be natural and genuine.

It is important that you have legal representation if the process continues beyond this point. If CPS asks you to agree to allow your child to live somewhere else for a while, or if CPS tries to have your child removed from you without your agreement, then it is imperative that you speak with a lawyer in handling CPS cases right away, before you speak with CPS again, if possible.

CPS investigations are serious matters. I hope that this information has been helpful to you.
For more information regarding CPS cases, checkout “When can CPS Remove Your Child?

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When can Texas CPS remove a child from your home?

Texas law (the Texas Family Code) provides that CPS shall investigate reports that a child has been abused or neglected. Those reports are typically made through either a phone call, or online ( ph. 1-800-252-5400 or www.txabusehotline.org).

The law goes on to state that the investigation shall be “prompt and thorough,” and may require the assistance of local law enforcement. And when that investigation reveals an “immediate danger” to the welfare of the child, then CPS may remove the child from his or her home, either with or without first obtaining a court order, depending on whether “there is …time” “consistent with the health and safety of (the) child” to first obtain a court order (such as a temporary restraining order).

The law provides that CPS could first file a lawsuit, serve the parents with those lawsuit papers, and set a hearing, all prior to removing a child. But, in my experience, that rarely happens. Instead, CPS does not typically initiate a case until and unless they determine that the situation is, in their opinion, so bad at the child’s home, that CPS needs to remove the child from that home. And, by that time, the CPS personnel involved in making that determination usually will decide that the need for removal is imminent.

In whichever way CPS removes a child from his or her parent, the court must have an “Adversary Hearing” within fourteen (14) days of when the child was taken into custody by CPS, unless the child has already been returned to his or her home by then. At that hearing, the child’s parents will be allowed the opportunity to dispute the charges being made by CPS, to cross-examine the witnesses called to testify by CPS, and to present their own testimony and any other relevant evidence that they may have.

At the conclusion of that hearing, the court shall order the return of the child “…unless the court finds that: 1. the child was in danger; 2. the child’s remaining in the home is contrary to the welfare of the child; 3. the urgent need for protection required the immediate removal of the child; 4. reasonable efforts…were made to eliminate or prevent the child’s removal; and, 5. 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.” (see Texas Family Code section 262.201). In other words, the court is not going to return children to parents whom the court finds were not parenting them safely.

If the continued removal of the child is approved by the court, then the court will make further orders at that time regarding the parents and child. If, however, the continued removal is not approved of by the court, then the case terminates.

When CPS gets involved in a case, it can be quite serious, and that involvement can dominate a family’s life for a year or more. These situations should be taken as the important events that they are.

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How Child Custody Cases are Won (Part 3)

In the first installment of this series, entitled “How Child Custody Cases are Won (Part 1),” we went over the specific factors which a Judge will use to decide our custody case. Next, in Part 2, we focused on our initial case presentation, such as: letting the Judge know up-front about the specific rulings that we want the court to make at the end of the hearing; and, explaining how parenting has been done in this family up until now. If you have not yet read those posts (or if you have read them, but could use a refresher), then you should refer back to those earlier writings, (linked above) before reading Part 3. That will help you put the new information presented here into proper context.

In this piece, the third installment of this series, we will discuss some other evidence that will be helpful to winning our case.

What Harm May Result If Your Requests are Denied

By this point in our case, the Judge has already heard from us about your family’s relevant history, and what we think is best for your kids going forward. We have also discussed your plan for parenting the children, if the court awards you custody of your children. It is now important for the Judge to become aware of any problems, hardships, or dangers that your children might experience if our requests are not granted. We do this initially through your testimony; but, since the other parent is unlikely to agree with all of that testimony, we also need to present additional evidence to the court of those potential problems, hardships, or dangers.

So, for example, if not granting child custody to you will cause your children to: move away from their friends and school; spend significant time without adult supervision; or, perhaps, be exposed to inappropriate experiences or circumstances (such as drug abuse, drunk driving, or other criminal activity); then, properly-presented evidence (such as photographs, social media postings, admissions of the other party, police reports, or eye witness testimony) can demonstrate these bad circumstances for the Judge, and make it clearer why our requests should be granted. Of course, that evidence won’t be entered unless we are able to first lay a proper predicate for it, so please let us know about that kind of evidence as soon as possible. That way, we can take the steps necessary to allow us to use it in court.

Help Available to You

Often, people going through a child custody case will have the support and assistance of relatives, friends, and neighbors to assist them with being a single parent of their children. If this is true for you, then the court needs to hear about it. Of course, you should testify about this help, but having those other people present in court to also testify about their willingness to help you with your children is even better! That way, the Judge will get to meet and listen to the people who are willing to help you when you need it. The Judge gets to see who they are, as well as evaluate them as credible people. And, their testimony will confirm to the court that what you are saying about their willingness and ability to help you is, in fact, true.

Children’s Best Interest

As discussed previously, the bottom-line ruling of the court is based on the Best Interest of the child or children before the court. By presenting the information discussed in the earlier posts, along with the additional evidence discussed above, the Judge should be able to see that our plan is what is best for your children.

How Child Custody Cases Are Won (Part 2)

I have previously written about “How Child Custody Cases Are Won (Part 1).” In that piece I discuss what kind of things courts consider when making child custody decisions. In this piece, I will discuss how those things are shown to the court.

Getting Started

By the time of your initial custody hearing (perhaps for Temporary Orders), the Presiding Judge, likely, knows nothing about you and your family other than the information contained in pleadings filed with the court—things like how many children are involved in the case; their ages; the names of their parents; and whether there are any prior Court Orders pertaining to these children. It is our job to provide the court with the information about the story of your family—how you lived together up until this point; your current circumstances; and, your plans for taking care of your children going forward. That way, the court can consider the factors discussed in my earlier piece (linked above) and make a custody decision grounded in fact and law.

Initial Showing

Pleadings filed with the court usually contain only general requests for appropriate orders pertaining to conservatorship (or custody), possession and access to the children, the allocation of parental rights and duties, and the award of appropriate support between the parents. Depending on the facts of your case, other requests, such as for injunctions, name changes, and discovery terms, may also be requested. From just reading those pleadings, the Judge cannot determine the specific requests that we are making. And, of course, we do want to be very clear about what we are specifically asking for. So, I prepare a “Summary of Requested Relief,” which I will enter as a trial exhibit at the start of the hearing; and then, I move to publish it to the court. This trial exhibit details the specific rulings that we want the court to make. That way, the Judge can quickly see precisely what we are asking for.

Family History

When families are intact—both parents and all children are living together—parents make agreements, or come to understandings, about how they will care for their children. For example, one or both parents: get the children up in the morning; arrange for getting the kids to their school, daycare, or babysitter; make sure that the kids have clean clothes to wear, are dressed appropriately, are clean, and eat breakfast. So, naturally, when parents are making their cases to the court about why they, rather than the other parent, should be primarily responsible for caring for their children going forward, judges want to know what the childcare arrangements have been up until this point—and, how well they have worked. So, these things should be shown to the Judge near the top of the case presentation. In preparing for your child custody hearing, considerable time should be spent with your lawyer discussing this history of the children’s care.

New Factors That Make Change Desirable

If you are not the parent who was primarily responsible for doing those things mentioned above, then for you to win custody, you will need to show the Judge what has happened to make the prior childcare arrangements unworkable or inappropriate now. For example, maybe, one spouse is now interested in a paramour, and so, neglects his or her parenting duties. Or, perhaps, the parent who was primarily responsible for the children’s care now has a substance—alcohol or other drug—problem. Any number of things can happen to impact the ability of a parent to be responsible for children. The judge needs to know about all that apply to your case.

Effective Case Presentation

It is your lawyer’s job to gather and organize the information discussed in this piece, with your help. And then, your lawyer should present that information to the court in a clear and persuasive manner, rather than by merely stating a bunch of facts to the court. This is the art of being a trial lawyer. It usually takes many years and trials to become good at it.

Other Information To Present

Presenting the information discussed in this piece is a good start to presenting your case to the court. But, as you know from reading my earlier piece discussing how child custody cases are won (linked above), there is more information that needs to be presented to the court. We will explore that additional evidence in a later piece that I will write. In the meantime, make sure that you are not hurting your case by doing any of the things that I wrote about here. You are now well on your way to presenting your best case for child custody to the court!

How Child Custody Cases Are Won (Part 1)

As a practicing Texas lawyer, I see lots of different kinds of Family Law cases. And while a relative few of them may not involve children (such as in some divorce cases), the majority of the Family Law cases that are filed DO involve children, in one way of another. At the heart of most of those cases is the determination of who is going to primarily raise the children. They are child custody cases, even if paternity, child support, residence restrictions, or other factors are also involved.

Of course, these are important cases. And, often one side or the other feels as though he or she won, and another party feels as though he or she lost. Often, the welfare of the children hang in the balance. So, how are these cases decided?

Best interest

According to the Child Welfare Information Gateway, part of the U.S. Department of Health & Human Services, “All States, the District of Columbia, American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands have statutes requiring that the child’s best interests be considered whenever specified types of decisions are made regarding a child’s custody, placement, or other critical life issues.” So, this is what courts look for in these types of cases. How do they determine which orders are in children’s best interest?

Criteria

Courts, such as the ones in which I practice, may have formal criteria for determining the best interest of children. Those criteria may be elements such as:

  1. the desires of the child
  2. the emotional and physical needs of the child now and in the future
  3. the emotional and physical danger to the child now and in the future
  4. the parenting abilities of the individuals seeking custody
  5. the programs available to assist those individuals to promote the best interest of the child
  6. the plans for the child by these individuals or by the agency seeking custody
  7. the stability of the home or proposed placement
  8. the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one
  9. any excuse for the acts or omissions of the parent

These criteria, are not listed by area of importance. And, this list is not exhaustive, since each individual case will have certain factors that are more important than others. Courts consider all relevant evidence about what is best for the children in the case before them. And, those courts have broad discretion in making the determination of what is in the child’s best interest.

What NOT to do

While your case is ongoing, the courts will strongly consider any negative behavior by the parties in making the best interest determination concerning children. Emotions often run high during these periods, and people, sometimes, don’t fully think through the consequences of their actions. I have written about the things to avoid doing during your child custody case (How to Easily Lose Your Child Custody Case and How to Avoid It) Make sure that you do not engage in any of those behaviors.

Conclusion

As a party with a child custody case, it is your job, and the job of your attorney, to provide the necessary information to the Judge so that the court can make the determination of what is in your child’s best interest. This is done by your taking the time to think through the criteria listed above; writing down the facts in your circumstance that apply to those criteria, along with other important facts that the Judge should hear about. Your attorney’s job, then, is to gather and organize the evidence showing those facts; and then, to present that evidence to the court in the most persuasive manner. That is how child custody cases are won.

Additional Information

I plan to write additional pieces about the kinds of evidence that can be used to show the 9 criteria listed above. For now, going over that list, and discussing it with your lawyer, is a great starting point for getting your child custody case ready to win. Good luck!

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Divorce and Child Custody FAQ

Frequently Asked Questions about Divorce and Child Custody

Q1:  For how long must a person live in Texas before he or she can obtain a divorce in Texas?

A: The wife, the husband, or both spouses must have lived in Texas for at least the most recent six months (this is referred to as “being domiciled in Texas”)
Had a home for at least the last ninety days, in the particular county in which the divorce case will be filed (this is what is meant by “being a resident” of that county).

Q2:  What do some terms commonly used in Texas divorce proceedings mean?

A: The spouse who initiates the case, by filing an Original Petition for Divorce, is known as the “Petitioner.” The other spouse is designated as the “Respondent.” When “Venue” is proper for the divorce case, that means that the divorce is filed in the right county. In Texas, proper venue for the divorce action is in the District Court within a county in which the residency requirements (discussed above) are met.

Q3:  How long does a divorce case have to be on file with the court before a divorce can be granted?

A: Once the divorce case is filed, there is a minimum sixty-day waiting period prior before the court has the power to grant the divorce, except in cases of Family Violence. But, most contested cases are on file longer than sixty days, because it usually takes more than sixty days, to learn what issues remain contested and what the evidence is for those issues. Also, if a trial will be necessary, the court often requires the parties to mediate the case prior to trial. Drafting and having final documents entered also will usually take awhile.

Q4:  I have heard people talk about “having grounds for divorce.” What does that mean?

A: “ground for divorce” means simply a basis on which the court may grant a divorce. In most cases, the grounds used are so-called “No Fault” grounds (discussed below).

Q5: What are the recognized grounds for divorce which are recognized in Texas?

A: No Fault—this means that the marriage has become insupportable because of discord or conflict of personalities that destroy the legitimate ends of the marriage; and, there is no reasonable expectation that the spouses will reconcile with one another.

There are also fault grounds for divorce. These are grounds for which one of the parties is at fault for the failure of the marriage. Cruelty, adultery, confinement in a mental hospital, and concealed divorce are fault grounds recognized in Texas.

Q6:  What is “spousal support” under Texas law?

A: “Spousal support” (sometimes informally called “alimony”) is money paid by one spouse to the other to compensate a spouse for the loss of income which will be experienced by the spouse who will receive the spousal support.

Q7:  Is spousal support available while the divorce is pending in court, or only after the divorce has become finalized?

A: The court may order that one spouse pay spousal support to the other spouse while the divorce case is ongoing, as well as after the case ends. There are different standards which apply to each of those types of spousal support payment programs.

Q8:  What factors will the Texas court consider when determining how much spousal support to award to a party?

A: The Court will consider the needs of the requesting spouse and the ability of the other spouse to pay. The court will also consider whether the person seeking spousal support is disabled, or is the full-time caregiver of a disabled child. And, the Texas Court will additionally consider the health and age of the party’s ability to work, responsibility for children, availability of funds, and the length of the marriage.

Q9:  On what basis does a Texas court decide how marital property is divided?

A: Texas is a so-called “equitable distribution” state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. The court has wide discretion in dividing property.

Q10:  What is “Separate property.” 

A: The Texas Constitution defines “Separate Property” and “Community Property.”While the definitions are straight-forward, applying them to a particular marriage can be tricky and complicated, especially if the marriage is a long one; if gifts and inheritances have been received by the parties, if monies were not kept in separate accounts, and if separate property was productive (i.e. it earned interest or income). Additionally, there can be issues of “Equitable Reimbursement” which arise from certain uses of Community or Separate Property.

Q11:  What happens to that “Separate Property” during a divorce case?

A: This question concerns whether property owned by one of the parties should be included in the marital estate for purposes of the court’s property division. Generally, property is “separate” if it was acquired before the marriage, or by gift or inheritance at any time. Sometimes, one or more items of property “mutate” to another item or items of property. “Separate Property,” once proven to be such, is excluded from the marital estate unless it has been ‘co-mingled” with community property to the extent that it is no longer distinguishable from the community property.

There are a lot of tricky considerations concerning Texas Community Property Law, such as whether income from separate property is separate or community property, or whether the parties may agree between themselves to alter the character of certain items or classes of their property. An experienced Texas Family Lawyer can explain these issues to you.

Q12:  I have heard that the presumption in Texas is that the parents of a child should be appointed as “Joint Managing Conservators.” Does that mean that the parents split time with the children 50-50?

A: No. “Joint Managing Conservators” means that the parents share rights and duties to to their children. This means that both parents should be involved in the making of important decisions for their child, such as on school issues, and when a medical decision is needed. The “Standard Possession Order” awards possession and access to the children. And, it is presumed to be in the best interest of a child who is 3 years of age or older.

Q13: What is Managing Conservatorship (custody) and possession and access (visitation)?

A: In Texas, there is a rebuttable presumption that parents should serve as the Joint Managing Conservators of their children (see above). In Texas, “Conservatorship”is the equivalent of “custody” of the children. Those two terms are not identical in meaning. “Conservatorship” recognizes that parents have duties to care for their children, rather than merely the right to temporarily “own” them, such as with property.

The right to Joint Managing Conservatorship does not mean that each party will have the children one-half of the time. It also does not mean that child support will not be awarded to one parent. Joint Managing Conservatorship does mean that the parents will either share, allocate, or apportion parental rights and duties. In most cases, it also means that the child’s domicile must be established in the final Court orders, so that each parent will be able to be involved in the children’s lives. “Possession and access” speaks to when each parent has the right to visit with, and spend time with children from the marriage.

Q14:  If the parents cannot agree on conservatorship and access issues, on what basis will the court decide those issues?

A: These matters, like all of those pertaining to children, are based upon a finding by the court of the children’s best interest. As discussed above, the Texas Family Code contains a “Standard Possession Order” which is presumably in the children’s best interest. So, while the court does not have to follow that Order, that is where the discussion starts, and often, where it ends.

Q15: What is “child support?”

A: Child support is money paid by the non-custodial parent to the custodial parent in order to meet the needs of the children.

Q16: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?

A: The Texas Family Code contains guidelines for the computation of child support. The guideline amount is presumably the minimum amount which should be awarded as support for the children. If any child has “Special Needs,” then additional child support may be awarded.

Q17: When does the duty to pay child support end?

A: Unless the child marries sooner than age 18, joins the military, or does something else to become “emancipated”prior to turning 18 years of age, child support orders continue until the child reaches age 18. But, if the child is in high school at age 18, support continues until high school graduation. If the child is disabled, it may be possible to continue child support for an indefinite period. Texas law makes no provision for support during college, or the payment of college expenses. But, the parties may provide for the payment of those expenses by contract.

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How to Avoid a Trial in Texas Family Court

Can you avoid a trial in a Family Law case? Most of us have seen movies and t.v. shows depicting contentious divorces or other Family Law cases. But is that the only way to resolve a disputed case of that type?

Thankfully, the answer is “no.” After more than two decades of “alternative dispute resolution” being encouraged by lawyers, the courts, and parties, it is now quite common to have even a contested case resolved without the contentiousness of a nasty court battle.

Of course, the court still must enter the required paperwork to give the resolution effect, but that can be done in a non-confrontational manner, after the parties have resolved their case.

So, what are these alternative dispute resolution procedures? Well, the simplest way to settle a case is just by talking and negotiating. Once the parties to a case have legal counsel to advise them on their options, and the likely outcomes if the case were to go to court, the parties can sometimes reach an agreement between themselves without any formal procedure being used. Of course, that is considerably more likely to occur if all parties are clean, sober, and mentally healthy. Narcissists and druggies are hard to have constructive conversations with.

Mediation
The first formal alternative dispute resolution which we will discuss today is mediation. Just like with the first method, the parties do communicate with one another and try to reach an agreement. Mediation is different, though, the communications are guided by a mediator—a person trained in helping the parties find middle ground in a case. Naturally, an attorney who has extensive experience trying divorces and other Family Law cases in the area where the case is pending can offer the parties a better, more in-depth analysis as to what the true middle ground in a particular case is.

Mediations usually occur after the parties have filed their lawsuit, gone through whatever preliminary actions are needed in court (such as seeking “Temporary Orders” covering things like child support, child possession, use of the residence during the divorce, and related matters), and have conducted “discovery,” such as exchanging relevant documents, and stating their individual legal contentions. Mediations typically last a full-day, and resolutions occur most of the time—it seems that the success percentage rates vary from one geographic area to another, but all reports are that a majority of mediated cases settle in all areas of the U.S.

Mediation has other advantages over trial: according to a 12-year report in The Journal of Consulting and Clinical Psychology (2001, Vol. 69, No.2, 323-332), when mediation is used to resolve child custody disputes, the parent not living primarily with the children stayed more involved with their children, even twelve years after the mediation occurred. Not only were they involved in making decisions for their children, but they also spent significantly more time with them than the similarly-situated parents who took their cases to a contested trial. Mediation is a good thing.

Collaborative Law
Collaborative Law cases are much different from litigated cases. Parties and their lawyers who choose to use Collaborative Law first tell the court (in a formal filing with the court) that they are choosing to use Collaborative Law, and that they commit that they will:

  • respectfully, honestly, and constructively communicate with each other with the goal of efficiently and economically settling the terms of the dissolution of the marriage
  • not make accusations or claims not based in fact
  • disclose all relevant information to one another, whether requested or not.
  • We agree that settlement meetings will be focused on economic, and possibly parenting, issues and the constructive resolution of those issues.
  • not to engage in unnecessary discussions of past events, especially blaming or criticizing discussions

Once that filing is made, the case proceeds much differently from a typical, litigated case.

Rather than filing motion with the court, conducting formal discovery, and having contested hearings in court, the parties and their legal counsel, instead, meet with one another to discuss “interests” rather than legal “rights.” Before each meeting, the parties agree to specific “homework” that they will do before the next meeting, such as having a formal appraisal done of the marital residence, meeting with teachers to assess the impact that a recent move has had a child’s school performance, gathering and sharing requested documents, or meeting with an agreed-upon “neutral,” such as a financial planner or CPA, a child counselor, or “coaches” who help the parties effectively work towards resolution.

Collaborative Law works when the parties are committed to resolving the process honorably and fairly, without any more fighting with one another. For obvious reasons, High Conflict People, such as Narcissists or people who have an Antisocial Personality Disorder (such as Psychopathy or Sociopathy), are not good candidates for Collaborative Law, and neither are people who are active drug abusers or practicing alcoholics.

Arbitration
Although arbitration is used more and more in commercial disputes, it is not as commonly used in Family Law cases—at least not in Texas.

With arbitration, the parties select an arbitrator, i.e. the person who will substitute for a Judge in the case. They also lay the ground rules about what discovery will occur, the time limits of the case, and even whether evidence which would not be admissible in a normal trial, will be allowed to be presented to the arbitrator.

The arbitrator runs the case, rules on any disputed pretrial matters, hears the evidence and argument, and issues a decision, similar to what a Judge would do at a formal trial.

The advantages to arbitration begin with choosing the arbitrator who will preside—rarely can the parties to a traditional case choose their Judge. Advantages also include efficiency, such as emailing documents to the arbitrator and having hearings occur on the telephone rather than in person, the ability to choose as much or as little time as desired for the case and trial to take. And the ability of the parties can agree to recess a hearing without having to convince the Judge presiding over a crowded docket to “continue” the case.

Today, we discussed three alternative dispute resolution procedures used in divorce or other contested Family Law cases. There are also hybrids of these procedures and new ones being developed as people continue to try to resolve these very personal disputes in a manner more civilized than outright war.

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