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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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

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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