Child Living Arrangements Archives

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)

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!

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:

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

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.

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.

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!

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.

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.

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.

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

Dec 23, 2016 | Child Protective Services, Child Custody, Family Law

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?”