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

Feb 18, 2023 | Child Custody

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

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

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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