How Child Custody Cases are Won (Part 3)

Apr 16, 2024 | Child Custody, Family Law

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)

Apr 16, 2024 | Child Custody, Family Law

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)

Apr 16, 2024 | Child Custody, Family Law

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!

Copyright © 2024 Heiman Law Firm. All Rights Reserved. Website by Butler I. T. and Higher ADvantage

Can CPS Terminate Parental Rights Based on Old Events?

Mar 25, 2024 | Child Protective Services, Family Law

As always, I can give advice only about cases pending under Texas law, since I am licensed within only that state. CPS in other states may be similar or dissimilar to Texas CPS

The Department of Family and Protective Services (of which CPS is a part) states in their publications that:

“(w)e promote safe and healthy families and protect children and vulnerable adults from abuse, neglect, and exploitation.

…

Values

Accountable: We act with a sense of urgency to deliver results in an accountable, ethical, and transparent manner.

Respectful: We recognize the value of each person and act timely, value privacy, and treat all with respect.”[1]

In light of those express commitments to act “urgently,” and “timely,” we might expect that if CPS had concern(S) about the safety and welfare of children, then they would focus on recent events involving those children. In our experience, however, that is not always the case.[2]

Our courts have held that allegations of abuse or neglect against a parent must not be too remote in time, if termination of parental rights is sought because of that behavior. And, if you think about it, that makes sense: something that a parent did or did not do years ago does not bear strongly on a child’s current living circumstances. Put another way, “termination proceedings should be based on facts that are fresh enough to apply to the children at the time of the trial.”[3]

Texas CPS has to show not only some act of abuse or neglect by the parent, but also, that the termination is in the current “best interest” of the child. So, something that happened long ago does not provide solid evidence of what is currently in a child’s best interest. Things change over time; kids mature, and their needs change.

So, what are some examples of time periods that our courts have found to be too long past (remote) to support a current termination of parental rights? Well, in our research we have learned that our (Texas) courts have, so far, not defined that time period precisely. They have, however, determined in one case that that five (5) years between the act of abuse or neglect, and the termination trial, was too long. Another Texas court has held that three (3) years was too remote to support a termination finding.

Consistent with those cases, the Texas legislature has enacted legislation in Texas which requires generally (as with most things dictated by a law, there are exceptions to the general rule) that termination cases end within one year of when they are begun. But, of course, even if they meet that standard, the acts of abuse or neglect may still be found by a court to be too remote if the case was not started until a long time after the incident(s) occurred.

So, CPS should investigate a case soon enough after alleged abuse or neglect occurs; and, begin and complete their legal case timely. The burden of accomplishing those things fall on CPS, and not on the parents.

As with most legal matters, it is important to consult with an attorney for legal advice as soon as possible. Once a case has been filed, you may be entitled to have legal counsel appointed for you.

As always, we wish you the best, and hope that all kids are treated with love and respect.

Until next time, please take care of yourself and your loved ones!

 

Best regards,

 

David

 

[1][1] Texas Child Protective Services Handbook,” Section 1110

 

[2] Granted that some things, such as our government’s response to a pandemic, is out of the control of CPS

[3] This language is from a brief that we prepared and filed

 

 

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Can I Change my Child Custody Order?

Feb 18, 2024 | Child Custody

So, you have a child custody (or conservatorship) order. It was arrived at either by initial agreement of the parties, informal negotiation, mediation, or after a trial. And now, one of the parties wants to change it. Can that be done?

It is widely reported that each of the United States, and each territory of the United States of America, provides for modification of child custody orders under certain circumstances, such as a substantial change in the circumstances of a child, parent or other relevant party. The requirements for doing so vary from state to state. I am licensed to practice law in the State of Texas, and in no other. Accordingly, my comments will focus on, and be limited to, Family Law proceedings within the Texas court system. While these comments may or may not also apply to another state or territory, it is important for a party who is considering this issue to be advised by an attorney who is properly licensed within the relevant state.

In Texas a final “custody”[1] order may be changed under a few different conditions which may have arisen since the last custody order was entered[2]

The most common reason that a child custody order is changed is because of changed circumstances of a child, parent, or other party. The change(s) must be material and substantial, to the extent that the current order is no longer in the child’s best interest. Further, case law provides that the change must be something not anticipated by the current order. So, for example, the mere fact that a child has aged, and/or is in a different grade or school is not, by itself, a sufficient change to warrant a modification of custody. An example might by the child’s development of a learning disability or emotional condition that negatively affects the child; and, further, which is unacknowledged, or unaddressed, by the parent currently having “custody.” The types of changes that may be material and substantial vary from family to family. The question is whether that change is something that should be addressed by the court, because the current orders do not properly address it.

Another reason why a custody order can be changed is the designation of a child who is twelve (12) years or older. A child of that age may express his or her wish regarding custody. Importantly, because the best interest of the child is still the required finding for the custody change to be made, the court does not have to follow the wishes of the child. A child might prefer a parent who does not ensure that school assignments are completed; or, one who allows the child to abuse drugs or alcohol. It is unlikely the court would find the child’s desire to be in his or her best interest in those circumstances.

Finally, custody may be changed if the parent with custody voluntarily relinquishes possession to another, for six (6) months or more, unless that relinquishment was due to the parent’s military service. Of course, the child’s best interest is still paramount.

Child custody matters can be emotionally fraught. Having a good emotional support system, along with wise legal advice, can be helpful in getting though that minefield.

Until next time, take care of each other, and love those kiddos!

 

[1] ”Custody” in not a formal term used within the Texas Family Code. Arther the term “conservatorship” (a Trust term) is used to describe those entrusted with the care of a child or children. And, the right to designate the Primary Residence of a child is awarded to one of the conservators. Being a conservator who has that exclusive right is the equivalent of what most people think of when they used the term “custody.” So, for ease of understanding, it will be used herein.

[2] If the change of “custody” is sought within one year of the entry of the effective order, then there are additional circumstances that must be shown, besides what is discussed herein today, This is a topic for a future post, so stay tuned!

Important Factors in Cases Requesting Protective Orders

Nov 1, 2023 | Child Custody, Child Protective Services

Introduction:

A protective order is a court order that can be entered by the court to protect a victim of domestic violence, assault (sexual or otherwise), abuse, stalking, and/or threats by a family member, household member, or (current or former) dating partner. We have written more about these cases here: Legal Protections for Family Violence (Part 1) and here Legal Protections Available for Family Violence. A review of those posts provides context for this one. Today, we will discuss some of the considerations that are pertinent to these types of cases.

Discussion:

Cases in which Family Violence has been alleged by one partner against another raise issues that are not usually present in other types of cases; issues such as (often) a lack of witnesses who might corroborate or dispute the allegations; sometimes, either a lack of physical evidence, or evidence which is ambiguous, such as whether physical marks, bruises, scratches, and so on are “defensive,” i.e. were inflicted by a person trying to protect themselves, or were caused by an event unrelated to an encounter between the parties; or, even whether they were self-inflicted. So, it is important for the person requesting the Protective Order, as well as the person who is alleged to have committed Family Violence, to focus on the details of the case. These cases are not ones “to wing,” or to do “off the cuff.”

As discussed in the first article linked above [“Legal Protections for Family Violence (Part 1)], Texas has provisions for Emergency Protective Orders, which are typically granted upon the arrest of a person for a Family Violence crime (such as Domestic Assault), and usually last for sixty-one (61) days. Those are granted without a hearing, based solely on the arrest documentation provided by the police department. Those relatively short-lived cases are not what this post is addressing. Instead, it’s the potentially much longer Protective Orders that can be granted by a District Court, after application and hearing, that we are focusing on today (these cases are discussed within the second article linked above, (“Legal Protections Available for Family Violence”).

The investigation of the legal case (for both parties) typically begins with the police report (“Incident Report”). In Texas, the Application for Protective Order will almost certainly contain a report from one or more law enforcement officer who investigated the incident. The details of this report are important, and if they don’t align with other case materials, such as medical reports, witness statements, photographs, audio/visual recordings (and so on), then those details are suspect, and can be questioned. A skilled lawyer, defending the person against whom the allegations are made, will point-out those discrepancies to the court, so as to cast doubt on the reported incident of Family Violence. And, a skilled lawyer prosecuting the case will address and explain those discrepancies (to the extent that can be done) before the defense lawyer has the opportunity to exploit them.  Details, and explanations of variances within those details, are important.

Next, any witnesses who might either support or refute the case allegations should be approached, and, if possible, interviewed. If a witness refuses to speak with either lawyer, then that lawyer should be sure to provide evidence that the witness seemed to be favoring one party’s ability to investigate the case, instead of providing truthful information to everyone who sought it. This raises the issue of the impartiality of the witness.

How do the witness statements compare to the statement given by the person claiming to be the victim? If there are more than one witness, do they agree with one another on all important details? Do the witness statements conform with the officer’s report, and with the physical evidence, visual/audio recordings, photographs, etc.? Are there reasonable explanations for the variances? Is there evidence that witnesses discussed the events in question with one another, to arrive at a consensus narrative?

I next want to know whether the person making the claims in the case sought medical treatment. If so, was there a diagnosis made? Is there a medical report confirming that the wounds, marks, etc. are consistent (or inconsistent) with the patient history (what the patient told the health care provider)? When this information exists, it is often helpful to one side or the other. Consequently, both sides need to be aware of its existence.

Finally, I want to see how the parties communicated with one another running up to their important encounters, and whether they communicated afterwards. I expect to find a text string between the parties when I get one of these cases. What did they say to one another before, during, and after the event(s) in question? This is often quite helpful in determining what likely did, or did not, occur between them.

Protective Order cases can have a significant impact on both parties. And so, I encourage everyone involved in one to take it seriously. The court wants to grant a Protective Order when appropriate, but not grant one when not proper. Our job is to help the court see what is right in this particular case.

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