Keeping Children Safe

Jun 22, 2023 | Child Custody, Child Protective Services

Deciding to divorce is a big decision. Once it has been made, proper preparation is, like with so many things in life, a key to making the outcome more likely to be positive for you and your family. And, yet, because it can be such an emotional decision, many people do not develop a plan for successfully moving through the process. This piece is designed to guide you in developing that plan.

Initially, it is important to go through this process before beginning the divorce. That is when issues can be pondered without having the pressure of a pending divorce affecting your decision-making

Step 1 Who will be your allies during this process? Divorce can be emotionally-taxing. One or both spouses may make emotional decisions that create chaos, confusion, or worse. It is easier to get through those times with allies—family members and friends who can provide support. It is also important to have people who you can talk to regularly; esp. if other family members and friends decide to not be there for you at this time. Having the support of allies help you to better weather the storms of your case.

Step 2 Do you understand the property matters? Do you have, or can you get, documentation (hard copy and/or virtual) pertaining to all debts and assets of the family? Car titles, mortgage statements, retirement and brokerage account statements, bank or credit union statements, loan applications, credit card bills, health and life insurance policies, and tax returns are all important to have. Do you know where to obtain any of those documents which you do not already have? Is there anyone who can assist you with this process? Be sure to store electronic versions of those documents in the cloud (such as via OneDrive, Dropbox, Google Drive, or Box), so that you can access them from anywhere that you have an internet connection

Step 3 Who provides services to the home? You should either know, or learn, the identity of the gas company, the electricity provider, and the cable or satellite provider, for the home. Are there other service providers that your family uses, such as for landscaping, lawn maintenance, or babysitting? Do you know how all of those bills are customarily paid? What about the water/trash bill for your home? Do you either have access to that information, or can you get it? In a similar vein do you know all about your family’s health insurance, toll tag, phone, and other accounts? Can you compile all of this information in a document that you can access online?

Step 4 How will you meet financial obligations during the divorce? In addition to your living expenses, there will be additional charges related just to the divorce process, itself. So, securing a means to pay those expenses allows one to continue the case, rather than perhaps being forced to settle on less-than-favorable terms because you’ve run-out of money. The court may award certain bills, support, or alimony during the case. But, that is uncertain until it happens. Funding is sometimes available by taking a loan against a retirement account; selling some securities in a brokerage account; securing one or more credit cards in your own name, and unknown to your spouse, ideally; or opening-up a line of credit with a financial institution. Also, do you have a relative who will loan you money, or who will allow you to use his or her credit card? Is there home equity available to borrow? Even if the house is owned by both of you, the court may allow that home equity to be used to pay the expenses of the case.

These are the first few considerations. We will address more of them with the next post, so check back for more useful info!

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What are Parents’ Options Regarding School Re-Openings

Jul 15, 2020 | Child Custody

As the normal school year rapidly approaches us (as of this writing), many parents are rightly concerned about how to safely, and yet effectively, allow their children to resume their education. According to a recent University of Texas poll[1], a full 65% of Texas parents believe that it would not be safe to return their children to school now. And, that same poll, found that Texans are less approving of all levels of government and state and national leadership as the pandemic worsens in the state. Id. So, while the U.S. Center for Disease Control (CDC) directed on July 24, 2020[2] that “communities should make every effort to support the reopening of schools safely for in person learning in the fall”[3],  many Texans have discussed, often on social media, alternatives that they hope will be safer than a normal reopening. Among the most-discussed of those ideas are traditional home schooling (which may be available to those families who have the luxury of a parent remaining home, full-time, to instruct their children), to hiring tutors for one or more families (often called “learning pods”). For other parents, it seems more important to have their children attend their schools virtually, so that they might retain social connection with their classmates, friends, and familiar school officials.

Some parents are making arrangements to either work remotely, and thereby, be available for their children, as they learn at home; or, take their children with them, to wherever they will be working[4]. Others are considering hiring a nanny or college student to monitor the children, while those kids attend school virtually. In either case, the goal is to limit children’s exposure to others, while still having them learn.

Since the 2020-2021 School Year has not yet begun (again, as of the time of this writing), it is likely that some of these approaches will be deemed more, or less, effective than others. And, as that occurs, some approaches will be either dropped or modified, in an attempt to make them better. Additionally, new approaches will probably be developed.

For those children who will be returning to their schools this Fall, the CDC suggests that exposure be limited to a select group of people for each student. This procedure is called “cohorting.” In describing this procedure, the CDC tells us that “Cohorting forms groups of students, and sometimes teachers or staff, that stay together throughout the school day to minimize exposure for students, teachers, and staff across the school environment. Ideally, students and staff within a cohort would only have physical proximity with others in the same cohort. This practice may help prevent the spread of SARS-CoV-2, the virus that causes COVID-19, by limiting cross-over of students, teachers, and staff to the extent possible…[5]” This procedure should be available for children who either attend school full-time (on a traditional basis), or part-time, through a “hybrid” model, in which kids attend their schools on certain days, as remote learn on others.

School Year 2020-2021 will, in all likelihood, be memorable for both parents and children, because of its uniqueness. The challenging nature of this school year is instigating the creativity of parents and school officials, as we all try to ensure that our children can learn, socialize and play, in a safe and effective manner. This topic may be one that we return to further discuss as events develop.

1 https://texaspolitics.utexas.edu/set/it-safe-or-unsafe-send-your-child-school-june-2020#overall

2 https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/reopening-schools-faqs.html.

3 Judging by its statements about children returning to school, by in July, 2020, the CDC seemed to be significantly less concerned about the health threats posed by that return than they were in March, 2020.
Download PDF here https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/Schools-Decision-Tree.pdf

4 Obviously, this arrangement works better for parents who work in an office setting, rather than in a factory, construction site, oil field or ranch.

5 https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/reopening-schools-faqs.html

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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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How to Avoid a Trial in Texas Family Court

Oct 23, 2014 | Child Custody, Family Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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