The Myth of the Child Interview in Texas Custody Cases

How much voice should a child have in determining the outcome of a Texas custody dispute? If your child is 12 or older, he or she will play a starring role in your Texas custody case in the form of a child interview.

Texas Family Code §153.009 states:

“In a child custody dispute, the court shall interview in chambers a child 12 year of age or older and may interview a child under 12 years of age to determine the child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence… Interviewing a child does not diminish the discretion of the court in determining the best interests of the child.”

Is it plausible to think your teenager is going to walk into an imposing courthouse, sit for tenChild with separated cardboard cutout parents minutes with a total stranger (judge), speak in complete sentences, and choose one of her parents over the other in a custody dispute? If your child does state a preference to live with one parent instead of the other, should he be believed, and should his preference be the last word in the inquiry?

The reliability of any child interview depends on the interplay between these three actors; your child, the adults influencing your child, and, the judge interviewing your child.

To understand more, let’s look at each of these actors, individually.

Your Child: There’s a bit of a “sliding-scale” in the child interview business… the younger the child, the less weight that is given to his or her preference. For instance, if your 12-year-old is interviewed by the court, his statement will be considered as one of many factors in the custody battle. On the other hand, family court judges, give far more weight to the pronouncements of a 16-year-old, and in many cases, her declaration will be controlling.
But, does your child really want to be interviewed by a family court judge and asked to make statements damaging to at least one of her parents?

Of course not.

In the absence of some pathology such as family violence, chronic neglect, or substance abuse, kids love their parents and want to please them. These children know what’s going on and they are stressed by the current of unease and emotion running through both homes. Going to a “throw-down” with a family court judge is traumatic not what they want.

Assuming they make it to the courthouse without incident. your child’s ability to compose himself in the interview is important. How mature and articulate is he? Is he prepared for the interview? In this superficial “speed-date” with the judge, these things matter.
Judges always tell parents not to talk to their children about the case or impending child interview. This amuses me. Let me just ask; when is the last time you went into an important meeting, job interview, or doctor’s appointment without some level of preparation? The typical child interview occurs at the courthouse in the afternoon after a long day at school. Then, child goes downtown to family court for a one on one with a stranger. I suspect most of us adults would struggle with this format.

Parents and Other Manipulators: As I said earlier, judges tell parents not to discuss the Parents arguing at divorce table.pending custody case with their children out of concern that the child’s preference will be influenced by outside pressures. Really? I always say there’s offensive holding on every play in a football game, and there’s manipulation in every custody case… it’s just a matter of degree! Remember that communication is more than verbal; it’s nonverbal, too. Are you communicating something to your child when he sees you crying or posting a devil emoji on your Facebook? Of course. And then, there are the surrogate influencers; grandma and grandpa are especially effective mouthpieces when it comes to a custody fight!

Often child manipulation has been going on for months prior to the filing of a custody case. Courts ordering parents to not discuss custody with their child is like you draining your bathtub before the hurricane hits. By the time your child is interviewed, his perception of reality and truth may have been whitewashed by a parent with ulterior motives.

The Judge: Some family court judges are just better with kids than others. The good ones possess the training, experience, or innate skill necessary to establish a rapport with your child and draw her comfortably into a conversation about her living arrangements. In contrast, other judges have a way of shutting kids down into something closer to an interrogation, leading them to respond with monosyllabic answers and no elaboration.
Finally, judges, like the rest of us, perceive things through the lens of their own experiences, attitudes and biases. Because family law attorneys are rarely permitted to be present during these child interviews, we do not know the extent to which a child interview is slanted by these human factors.

Is that you, or just a brilliant disguise?

While these interviews have become protocol in custody cases, they are anything but tamper-proof, and the outcomes are of questionable validity. This is not to say we stop talking to children. I think Judges should put a face with a name… especially when making life-changing decisions for children. However, we should place less emphasis on such interviews and to keep them in the proper perspective. After all, these are children … unfinished works and very much dependent on parents to meet their physical and emotional needs.

Gregory L. Housewirth is a an attorney and a Board-Certified Family Law Specialist. He has devoted his career to helping clients through life’s most challenging 

Fort Worth Attorney, Greg Housewirth

times.

Greg Housewirth, Attorney/Mediator

 

1329 College Avenue
Suite 100
Fort Worth, Texas 76104
P: (817) 923-9999
F: (817) 717-5003

How are Things at Home, Mr. President? 

If you’re looking for hot political discourse, keep clicking.  This isn’t about politics, it’s about our intimate relationships and how they shade every other aspect of our lives. POTUS just happens to be an easy case study.

Aren’t you just a little freaked-out that POTUS and FLOTUS don’t even pretend they are a team, much less committed marriage partners?  He goes to Washington.  She remains sequestered in a New York penthouse.  Gone from the media feed are the First Family moments we were raised on; the meeting of the eyes, the knowing smiles, the holding of hands.

Sure, prior First Couples have run the spectrum from those who are soulmates, to those whose marriages seem bound together more by duty and obligation than affection.  The common thread among them has been that they’ve at least played their part, giving us those images of marital solvency we need to see.  Yes, I said, need.

Remember when you were a kid and believing that your parents loved one another made you feel there was order in the world and that you were safe?  We call the occupants of our White House “the First Family” for a reason.  In some strange way, they’ve become our national mom and dad, modeling the domestic tranquility, whether real or fabricated, that makes us feel safe.  Yes, even in this cynical age, we expect the man at the top to be a “family man.”

But, why? 

Because, we know relationships matter.  No marriage is inert. A marriage trends up or down, fueling or depleting our reserves of psychic energy. In 30 years of family law practice, I’ve seen both the vacant eyes of clients who have clung to dead marriages as well as the radiance in the eyes of those who discovered relationships that feed their souls.  When I ask my clients about some of the worst decisions they’ve made, categorically, they explain that they were “in a fog,” “lonely,” or “depressed.”

I’ve reserved space here so you can tell me how the “great ones” compartmentalize: one box for this, another for that, and the two shall never meet.  Sure, we all compartmentalize, in one way or another, just to get through life.  But, such a coping mechanism is only somewhat effective and sustains us for a limited duration.  Sooner or later, the angst of the personal bleeds into the stoicism of the professional.  And, all Hell breaks loose.

Mr. President, forgive me if I have speculated.  Indeed, I hope you are buoyed and sustained by a relationship where you are truly loved and loving, in return.  From such a relationship comes peace, clarity, and creativity… things you’ll need along the way.

Sir, just let us know how things are going at home so we can try to relax.

Gregory L. Housewirth is a an attorney and a Board-Certified Family Law SpeFort Worth Attorney, Greg Housewirthcialist. He has devoted his career to helping clients through life’s most challenging times.”

Greg Housewirth, Attorney/Mediator

1329 College Avenue
Suite 100
Fort Worth, Texas 76104
P: (817) 923-9999
F: (817) 717-5003

Catch and Release: The New World of CPS Investigation

I can’t make this stuff up.

Because Texas CPS has implemented what I call a “catch and release” policy when investigating allegations of child abuse or neglect, stories of CPS investigations like the one I’m going to share with you happen every day.

Here goes.

Jimmy goes fishing and gets caught in a CPS dragnet. 

Our story begins with the Jones family on a quiet Thursday afternoon at home in their access-controlled housing community.  Mom and dad are working in their home office, trying to finish their end of the month reports.  The two oldest boys, Jeff (14) and Jayson (10) ask to walk to the neighborhood pond, about a quarter-mile from home, to do some fishing.

Mom and dad say “sure” but instruct the boys to take Jimmy (5) with them.  But, Jimmy didn’t want to fish and the two older boys decided to ride their bikes in the neighborhood rather than fish. Unbeknownst to mom and dad, Jimmy changed his mind, slipped out of the house and went towards the pond, in search of his brothers.

Enter your wacky neighbor and mine

Neighborhood resident Ms. Gladewater sees this young boy walking alone and calls the police to intervene for this “missing child.”  The police come, kindly unravel the situation, and usher Jimmy home to his parents.  The entire episode transpired in about 15 minutes.

What the Texas Family Code says about reporting abuse 

Texas Family Code section 261.101 mandates that anyone who suspects child abuse or neglect must report it immediately.  The report may be made to law enforcement or the Texas Department of Family and Protective Services. Further, law enforcement and other persons licensed or certified by the state of Texas are instructed to always err on the side of the child’s safety an
d report suspected abuse or neglect, which can lead to CPS investigations.

If CPS gets a call, you’re getting a call

Texas CPS policy tends to ebb and flow depending on recent events, available funding, and the general political climate. Long starved for resources, the agency has always been pressured to do more with less.  Then, when catastrophe strikes, blame gets divvied up from the most junior case investigator to the agency commissioner in Austin.

Now, CPS is adding staff, some more qualified than others, and responding to a mandate to thoroughly and aggressively investigate all reports of suspected abuse or neglect.  Coming back to our story, what was a harmless miscommunication on a Thursday afternoon is now a CPS investigation.

What can you expect during an abbreviated CPS investigation

Each investigation differs depending on the allegations, but you should expect the following to occur:

  • The CPS worker will visit and inspect your home for safety, cleanliness, and adequate food supplies;
  • The CPS worker will interview you not just about the allegations at hand but also about a wide array of other matters such as your employment, relationships, use of alcohol, use of drugs, and criminal history;
  • The CPS worker will interview your children… outside your presence.  Again, expect this interview to be wide-ranging;
  • The CPS worker will contact doctors, teachers and other collaterals necessary to complete the investigation;
  • If there is a concern about drug usage, the CPS worker will request you subfamily reunited after CPS investigationmit to an oral swab drug screen.

Four things I do to help my clients live through a CPS investigation

My work with clients facing CPS investigations extends beyond the courtroom.  In fact, my goal is to keep my clients out of the courthouse as the formal legal process simply adds to the trauma of an investigation, causes excessive delay, and adds greatly to the expense of a case.  Here are four things I do to help you get through a CPS investigation:

  • Protect clients from intimidating or otherwise unprofessional behavior by CPS investigators;
  • Clarify and verify the facts of the allegation;
  • Identify those specific actions necessary to address any existing safety concerns and to control those risk factors going forward;
  • Establish clear deadlines for the conclusion of the CPS investigation and completion of agreed-upon services.

… And the Jones family lived through their CPS investigation

I met with the Jones family, outlined what they should expect during the investigation, and intervened with the CPS investigator to set up a meeting at my office.  While the parents were not present during the interview of the children, I was there – – which was a great comfort to mom and dad.

The CPS investigator (who was very professional and sensitive to the boys’ apprehension) completed his investigation quickly and “ruled-out” any allegations against the Jones family.

For more information, please view our FAQ on CPS investigations

Gregory L. Housewirth is a an attorney and a Board-Certified Family Law SpeFort Worth Attorney, Greg Housewirthcialist. He has devoted his career to helping clients through life’s most challenging times.”

Greg Housewirth, Attorney/Mediator

1329 College Avenue
Suite 100
Fort Worth, Texas 76104
P: (817) 923-9999
F: (817) 717-5003

 

 

Settle is Not a Four-Letter Word

Settle is a bad word in our individualistic, success-driven culture.  To settle is to fail.  If you google “never settle” you’ll see just how many companies have built their brand on our core belief that you should always strive for perfection, get exactly what you want, and never be satisfied with lesser alternatives.A family being separated in court

Now, let’s talk family law.  When you are in a divorce or child custody case, you’re often wounded, fearful, uncertain, and ___________ (insert your own adjective here.)  Your brain is in full “fight or flight mode” and you’re looking for someone or something to protect you, restore your balance, and vanquish your tormentor.

Enter the gunslinger

Somewhere in a distant land, an advertising genius told a lawyer who told 10 million other lawyers that they should seize upon the flight or fight response and package themselves as protectors of the wounded and slayers of wrongdoers. Hence, we now have legions of divorce and custody lawyers plastered across our screens, standing confidently (chin-up, chest-out) promising aggressive representation that’s “on our side.”

And, it really, really works!  If you’re hurting and afraid, the idea of some guy or gal in a suit cleaning up the oil slick that is your life while singing you a lullaby appeals greatly to your primitive brain.  So, you go, you meet, and you hire a lawyer for your family law case.

Your mother doesn’t work here

But, things change and your lawyer isn’t your mother.  By my estimation 90 percent of all family law cases find a resolution (“settle”) prior to trial.  If this is the case, when, and how, does the conversation with your lawyer pivot from “kicking-ass” to “option development?”

While the fight or flight response of the primal brain can keep us from being eaten by a bear, in divorce and custody, it’s the rational brain that gets things done.  A good divorce or custody lawyer doesn’t just feed red meat to the primal brain, he or she engages the rational brain at the beginning of the attorney – client relationship.  That way, you, the client, begin to engage your brain rather than your emotions and you don’t feel “sold-out” when your lawyer starts using the “S” word.

Learning to use the “S” word

I have a saying: “Negotiate when you can. Fight when you should.”  Hiring a lawyer for your divorce doesn’t mean you’re done making decisions.  With the help of your lawyer, you should be constantly defining your goals, assessing cost against perceived benefit, and seeking to minimize long-term damage.A divorce settlement being signed

When you learn to bend in this process without breaking, you’ll get through it and emerge safe on the other side.  Settlement is not failure. It is an alignment of interests for a mutual good.

True, you won’t be seeing lawyers wearing cardigans online anytime soon. It just wouldn’t sell. So, let’s just keep the suit, pull the shoulders back, but start talking differently about how family law works.

Adoption Options for Families

Our daughter is adopted.  Eighteen years later, I remember the experience as if it were yesterday.  All those years ago, adoption agencies controlled the process, matching birthmothers with adoptive families, presenting the adoption options and then handling the legal work on both ends of the equation.  It was very much a face-to-face business. parents holding their newly adopted child

In purely economic terms, these adoption agencies controlled supply (by recruiting and supporting birthmothers during their pregnancies) and demand (by recruiting couples desiring to adopt children).  Because the demand for healthy newborn babies far outpaces supply, adoption agencies routinely charged over $25,000 for their services as intermediaries in the process.

You know what happened next.  Birthmothers and adopting parents went online, making their own connections, cutting both costs and corners in the adoption process.  While we will never go back to the days when adoption was strictly a “brick and mortar” industry, the same rules of law apply in our culture of online searches, message boards, and social media.

If you seek to adopt a child in Texas, consider these facts and adoption options as you begin your journey.

Only a licensed child-placing agency is authorized to facilitate the adoption of children by adoptive families.  Avoid solicitations from facilitators, including lawyers, who represent they have an “inventory” of birthmothers or babies to be adoption.  Such activity is illegal under Texas law.

You can do your own match with a birthmother, but you cannot buy a baby.   Texas law does allow for the payment of some prenatal and postnatal expenses and the birthmother’s living expenses, but Texas law prohibits payment of money in exchange for a child.

You will need an adoption homestudy, prepared by a licensed social worker.  If you have an adoption match, you should get started with your adoption homestudy.  Such studies are very thorough and take time to prepare.  You are also required to produce to the court a criminal history report for each prospective adoptive parent.  To obtain the report, you must have your fingerprints taken and forwarded to Texas DPS.

If you are adopting a child in another state, you must comply with ICPC.  This is where things get dangerous… Interstate Compact on Placement of Children.

Every child has a father – – you just may not know him.  Texas adoption law requires that the parental rights of the child’s presumed or alleged biological father be terminated.  To avoid frustration and even heartbreak ahead, you need to identify and engage the father of the child in your adoption plan.

An affidavit of relinquishment cannot be signed by a birthmother for the first 48 hours after birth.  The intent of this Texas law is clear: to make sure the birthmother is not under the influence of any medications at the time she signs her relinquishment.  This time can be gut wrenching for adopting parents. The flood of emotion surrounding the birth of a child as well as pressure from other family members can unravel an adoption quickly.  A trusted adoption attorney or adoption social worker can help you develop rapport with the birthmother during the months prior to delivery.  Such a rapport can help you to develop a feeling of family that will make relinquishment less traumatic.

Complete a Health, Social, Educational, and Genetic History Report.  This report is also required under Texas adoption law.  The report, completed by the child’s biological family gives adopting parents a bit of an “owner’s manual” that can be very useful in the coming years.  For instance, you should know if anyone in the biological family had any health issues that may be passed on to your baby.

Post-Adoption contact is an agreement, not a contract.  Remember, adoption terminates the rights of the biological parents to the child and you cannot enter into a legally binding contract for post-adoption contact.  The “openness” of your adoption is something for you and the birth-family to discuss. mother and father holding their newly adopted daughter

Now that you know a little of the vocabulary and your adoption options, you hopefully you can distinguish the qualified adoption attorneys from those who are hoping to learn as they go.  I haven’t just been an adoption lawyer for 30 years, I’ve lived the life of an adoptive parent which is a gift unlike any other.

 

How To Testify in Family Court

I’ve seen some pretty slick lawyers in my day.  Polished, glib, and oh so charming, they run interference for their clients, putting lipstick on the proverbial pig.   It’s times like these I wonder if the client presents as well in court as their lawyer, so I call their bluff.

When a divorce lawyer marches a frightened and unprepared witness to the stand without having taught them how to testify in family court, bad things usually happen.  Things happen fast when you’re on the stand, words don’t come out right, tempers flare, and cases crumble.  And, your lawyer can’t help you!Witness in divorce trial swearing their oath

I’ve practiced family law in Fort Worth for 30 years and I’m still wired going into the courtroom.  Imagine how you’ll feel having never been in a courtroom, much less having testified  while your spouse glares at you.  Your pulse quickens, the blood pounds in your veins, your eyes start to dart, and you adversary leads you like a lamb to the slaughter.

It’s time for a trip to the woodshed.  The woodshed is a mythical place where good lawyers prepare their clients to testify in family court.  If you miss your trip to the woodshed prior to going to divorce court, let me share with you a few pointers I give my clients.

  1.  Remember, this Judge knows nothing about you, he is really trying to figure out if you’re in this case for the “right reasons.”  You are honest, helpful, and likable.  You admit to any shortcomings but you don’t dwell on them.
  2. The judge is watching you all the time you’re in the courtroom, whether your’re testifying or not.  Your demeanor and non-verbal communication matters.  Groaning, Shaking your head, glowering, snickering and other gesticulating is prohibited.  You listen attentively and courteously,
  3. If you need to communicate with your lawyer, discretely pass her a note.  Your lawyer is listening to the testimony and watching for objectionable statements, and does not need you buzzing in her ear.
  4. Courtrooms are big and you need to “project” yourself in the room, sitting up in your chair and projecting your voice.  Always make eye contact with others in the room.  Also, there usually is a court reporter taking your testimony, so it is extra important you speak slowly and clearly.
  5. Work on your breathing – – seriously.  If you can keep your breathing and heart rate steady, you have a much better chance of avoiding “flight or fight” and being able to focus on your testimony.
  6. Direct-examination occurs when your attorney asks you to testify.  Direct examination questions are non-leading and begin with words such as, “who, what, where, why, when, and how.”  Your lawyer is asking you questions to walk you through your story to the court. Answer these questions  thoroughly without rambling.  Hopefully, your lawyer has gone over with you an outline of his questioning so you know where things are going.
  7. Sometimes, the judge will ask you questions, directly.  Don’t panic, look him in the eye, and give your answer.
  8. Do not let the antics of the other lawyer distract you from your testimony.  When a lawyer makes an objection, stop speaking, “bookmark” what you’re testifying about, let the judge rule, and then move on.  That lawyer is trying to throw you off your game, is often making objections to get you to worry about him and not concentrate on your testimony.
  9. Cross-examination follows direct-examination.  This is the chance for your opposing counsel to diminish your testimony and to get you to make concessions to his theory of the case.
  10. On cross-examination, listen to the question, make sure you understand the question, take a pause to compose your answer, and then give a direct and factual answer to the question.  A “fact” is something you’ve seen with your own eyes or heard with your own ears… it is not a supposition.
  11. If you don’t know the answer to a question, say you don’t know, and when your opponent asks you the same question 50 different ways, stick to your original answer without giving in.
  12. Don’t let them see you sweat.  Even if you testify to something that is damaging or embarrassing to you, don’t slump your shoulders and look down.  Maintain your dignity without becoming combative.Lawyers conferring with a judge in family court
  13. Many cross-examination questions call for a “yes” or a “no” answer so as to put you in a corner.  You can tip off your lawyer by adding the words, “… but may I explain.” to your answer.
  14. Your lawyer will get a chance to re-direct examination where she can mitigate any damage sustained in cross-examination.

As Schreier and Housewirth Family Law, we understand, and practice, the art of advocacy.  When your facing a divorce or child custody trial in Tarrant county, you can count on our lawyers to invest in you and your case so that you’re entering the courtroom confident and prepared.

Planning for Divorce in Texas

Planning for Divorce in Texas

The initiation of the divorce process can be overwhelming. Whether you are filing for divorce or you have been served a divorce petition initiated by your spouse, you likely have many questions. Which court will have jurisdiction? What will happen to your parental rights? Can you be barred from entering your home? What are your rights?

Fort Worth divorce attorney and Board-certified family law specialist Greg Housewirth and SchreierHousewirth has prepared this comprehensive guide to divorce in Texas. While each Texas divorce is unique, this road-map will help you to understand the divorce process from start to finish.

Contact Schreier & Housewirth Family Law when you’re ready to move forward with divorce in Tarrant, Dallas, Johnson, or Parker counties.

Safety First

When thinking about divorce, you must consider the risk of family violence during the initial separation and ensuing divorce.

If there has been a history of family violence in your marriage, act with extreme caution and talk to your divorce attorney about obtaining a family violence protective order. If family violence has occurred in the past and there is a clear and present danger that it will occur in the future, a temporary, emergency protective order may be issued by a Texas divorce court.

While you may believe the risk of your spouse becoming violent is slight, remember that filing for divorce can provoke very strong emotions. Do you have an emergency plan for you and your children? Do you have a family member or a close friend who can provide you with a safe place to stay while your divorce is pending?

Avoid physical altercations with your spouse during the initial separation. While this may seem common-sense, a finding of family violence by a divorce court may result in a custody arrangement with you having reduced time with your children, or even result in you having to visit with your children under third-party supervision.

Documents Your Divorce Attorney Needs for Court

What do you know about your family’s financial situation? You should begin making an “inventory” of both your assets and liabilities that you can review with an experienced family attorney. Simply put, “what do you have, and who do you owe?”

Next, make copies of your important financial documents such as: bank statements, tax returns, investment account statements, retirement plan statements, house closing documents, property tax statements, automobile loans and insurance statements, credit card statements and any other financial information you can think of that impact your financial status. Store these documents in a safe place outside your home.

Similarly, if your spouse has made expenditures that have harmed your marital estate, such as expenditures on paramours, gambling, drug usage, or excessive alcohol consumption, you should attempt to identify and copy any receipts, canceled checks or credit card statements that identify the expenditure.

Your divorce lawyer will need to have these documents, and to the extent you can obtain and organize them, you will be saving yourself time and money, and potentially protecting your marital estate from being squandered by your spouse.

Dividing Marital Property in a Texas Divorce

In a Texas divorce, only the community property of the parties is subject to division by the court. “Community Property” is that property, other than separate property, acquired by either spouse during marriage.divorce agreement

Separate Property” consists of: property owned by a spouse prior to marriage; property acquired by a spouse during marriage by gift, devise, or descent; and the recovery for personal injuries sustained by a spouse during marriage, except for a recovery for loss of earning capacity during the marriage.

While these rules for characterizing property as either community or separate property seem simple, there are many nuances and special rules for different types of property. For instance, a common question arises when separate property increases in value during the marriage. You will need to depend on the experience and skill of your divorce lawyer in advising you regarding the characterization of the property involved in your Texas divorce.

Make a Divorce Budget

Divorce results in the creation of two households where there had previously been only one. For most families, this results in a significant financial burden. You should know how much money you need each month to keep a roof over your head, the minimum balances on your bills paid, and you and your children fed. Family Court Judges in Tarrant County and other Texas counties frequently require that you produce an income and expense report at your initial temporary orders hearing.Divorcing couple arguing over finances

What is your income? What is your spouse’s income? Has your spouse agreed to pay some of your monthly expenses and can you depend on him or her to do so? Who will be harmed the most if your financial obligations become delinquent? These are all questions you should consider and bring to your attorney’s attention.

When you meet with your lawyer, you should be prepared to discuss your financial needs. Your lawyer can help you to better evaluate your financial situation and tell you whether you have a realistic chance of obtaining temporary support from your spouse in court.

This is a good time to remind you to inform your accountant and your financial advisor about your pending divorce. These are the professionals who can best advise you regarding which financial accounts you should seek to retain given your age, earnings, and projected financial needs. If there are unpaid taxes for years prior to the year of divorce, you’ll want to bring it to your lawyer’s attention.

Divorce Takes Time

A Tarrant county divorce is a process, not a single event. At a minimum, a divorce cannot be finalized for 60 days after the date the case is filed in court, and as a practical matter, most cases are not finalized on the 61st day.

The finalization of your case can be delayed by things such as the discovery process and the time required for each side to exchange information regarding marital assets and debts. Additionally, scheduling issues between divorce attorneys, clients, mediators and the Tarrant county divorce courts can also delay finalization.

If there are issues in your case regarding child custody claims, and a social study or other custody evaluation is ordered, your case may be delayed by as much as six months.

If your case cannot be resolved by agreement and requires a trial, a trial setting in Tarrant county divorce court could take anywhere between two months and six months depending on your court’s docket.

Temporary Orders in Texas Divorce Cases

All divorces in Texas begin with the filing of a “Petition for Divorce” in the court having divorce jurisdiction in the county where the parties reside. In most cases, the Petition will also request that the Court enter a temporary restraining order, ex parte, then a temporary injunction and other temporary orders after a hearing.

Ex Parte means that the temporary restraining order is entered by the court without notice to the other spouse. The purpose of the temporary restraining order (“TRO”) is to immediately prohibit the other spouse from the commission of certain acts which could result in the dissipation of the community estate, harm or annoyance to the other spouse, or interference with possession of a child. A Texas temporary restraining order remains in effect for 14 days after the date of issuance.

Absent a specific finding of family violence within the preceding 30 days of filing for divorce, a divorce court cannot exclude a spouse from the family home.

For divorce cases in Tarrant county, a temporary orders hearing will be scheduled by the court sometime near the expiration of the TRO. The opposing spouse must be personally served with notice of the temporary orders hearing. The notice will specify when and where the spouse is to appear for the hearing.

At the temporary orders hearing, the court may enter a temporary injunction for the protection of the parties and preservation of the marital estate. A court may order:

  • the parties to furnish a sworn inventory and appraisement of their property;
  • the payment of certain debts by a spouse;
  • the payment of temporary spousal support;
  • the production of books, papers, documents and other tangible things by a spouse;
  • the payment of reasonable attorney’s fees and expenses;
  • the appointment of a receiver;
  • an award of exclusive use and possession of the family home to a spouse;
  • that the parties limit their expenditures to reasonable living and business expenses and the payment of legal fees;
  • that one party has exclusive control of his or her usual business or occupation.

Because many Texas divorce cases can continue for six months to even a year, it is critically important that you and your divorce attorney be prepared to effectively present your case at the temporary orders hearing. Remember, too, that temporary orders establish a precedent that will affect future settlement negotiations. In addition, the trial judge may rely on the temporary orders as a guide at the final hearing.

Do You Know how to Act During Your Divorce?

While your divorce is pending, you are in “the fishbowl.” In other words, you need to remember that your activities, your spending, your behavior towards your spouse and your children are under scrutiny by your spouse, opposing counsel and, in some instances, even the family court or Child Protective Services. Be mindful of the impression you make on the people involved in your divorce, from the judge to his bailiff, from custody evaluators to the teacher’s aide at school.child of divorcing parents

Much of Texas family law is based upon people’s subjective evaluations of other people, and as they say, “you never get a second chance to make a first impression.” Be at your best even when things are at their worst.

What You Should Expect From Your Divorce Lawyer

A divorce is one of life’s “defining moments.” The outcome of your divorce could have a lasting effect on you and your children for years to come. You should put some thought into the selection of a successful divorce lawyer. Obtain references from friends, and others who have been satisfied with their qualified family law attorney.

Interview at least two attorneys. You should evaluate whether:

  • the attorney is experienced;
  • the attorney is board-certified;
  • does the attorney have trial experience;
  • does the attorney have good “diplomacy skills”;
  • does the attorney listen to you;
  • does the attorney convey an understanding of your objectives in the case;
  • does the attorney’s staff appear to be competent;
  • how accessible is the attorney going to be to you;
  • is the attorney able to clearly explain his or her retainer fee and billing procedures;
  • does the attorney’s personality compliment yours;
  • does the attorney inspire your confidence?

Once you have retained your attorney you should expect that he or she will become familiar with your circumstances and be able to plan a “road map” of your case with you. Additionally, and most importantly, you should expect your attorney to give you sound advice as to whether your expectations are realistic and as to the best means of achieving your goals.

At Schreier & Housewirth Family Law, our attorneys are known and respected in Tarrant county family law courts. Attorney Gregory L. Housewirth holds the distinction of being Board Certified in Family Law by the Texas Board of Legal Specialization. Attorney Kendall Goetz has been recognized as a top divorce attorney by Fort Worth Texas Magazine.

Our experienced divorce lawyers can ease the stress of appearing in court by sharing with you important tips for making your best case. Clients rely on us to make an overwhelming experience more manageable.

Getting to the End of Your Divorce in Tarrant County

Most divorces do not end with a “Perry Mason moment” where one witness confesses to a multitude of sins after a withering cross-examination by counsel. The vast majority of divorces are concluded by agreement of the parties.

Most often an agreement is reached after both attorneys have reviewed the parties’ inventories and other discovery materials and have had the opportunity to confer with their client and opposing counsel regarding a proposed division of the marital estate.

While there are many technical rules of property division the one, overarching principle is that the marital estate should be divided in a manner that is “just and right, having due regard for the rights of each party and any children of the marriage. A “fair” division of the marital estate can mean different things to different people. Accordingly, there is considerable room in the settlement process for negotiation and compromise in divorce.divorce mediation

If the parties have been unable to agree upon a division of the marital estate in their informal negotiations, the parties may agree to attend mediation, or in some cases, the court will order mediation. A mediation is a settlement process conducted by a mediator. The mediator is a neutral person, trained in mediation, whose job it is to facilitate a structured settlement dialogue between the parties.

While a mediator will always try to “cajole” the parties into reaching an agreement, the mediator cannot force the parties to do anything they don’t want to do. The mediation is confidential to encourage the parties to negotiate in good faith and without the concern that they will be later held to a certain offer of settlement should the process fail.

Mediation is often an exercise in “shuttle diplomacy” where the mediator “caucuses” with each spouse and their attorney privately and assists them in generating settlement proposals and responding constructively to the settlement proposals of their spouse. Through this process of give and take, the mediator draws the parties towards an agreement.

If the parties come to an agreement, the mediator prepares a mediated settlement agreement to be signed by all parties. The agreement is binding and irrevocable. A final decree of divorce will then be prepared based upon the mediated settlement agreement.

While divorce mediation is the dominant means of alternative dispute resolution in family law, arbitration is used in some instances. The court will only order arbitration if the parties agree in writing to arbitrate. The award of a divorce arbitrator may be binding or nonbinding.

If you are in the minority and your case does not settle, it may be necessary for you to proceed to trial. Most divorces are tried to a judge rather than a jury. This is because juries are limited by law in their power to make awards of specific property; such awards are left to the providence of the judge, and for most people jury trials are very costly.

At a divorce trial, the family court judge will expect a very organized and “to the point” presentation of your case. For this, you and your lawyer will need to prepare. Your divorce lawyer should have the trial expertise to direct your preparation. Most Judges will hear the evidence and take the case “under advisement” for a day of two to review the evidence and making a ruling.

While a court’s ruling in a divorce case is appealable, such appeals are very rare and usually not successful unless it can be shown that the Judge “has abused his discretion” in dividing the marital estate.

Beware of Loose Ends in Your Texas Divorce

Once your divorce is concluded, your lawyer should provide you with a divorce decreecertified copy of your divorce decree. The decree will be signed by a judge and have a special seal on one of the back pages put there by the court clerk to show that the copy of the original divorce decree has been “certified” as accurate.

For many people, the decree is only the beginning of the end. Your lawyer should advise you about the need for any other closing or transfer documents necessary in your case. For instance, if you are remaining in the family home, you will want to obtain a Special Warranty Deed from your ex-spouse. Additionally, you may be required to execute a Deed of Trust to Secure Assumption. Through these documents, your ex-spouse will be conveying his or her interest in the home to you while retaining a “secured interest” in the home should you fail in your obligation to make the mortgage payments.

If you have been awarded an interest in your ex-spouse’s qualified retirement plan, you will need to present to the employer a Qualified Domestic Relations Order to secure your share of the retirement plan. Your attorney should either prepare this document for you or direct you to an attorney specializing in the preparation of these orders.

Advise your investment advisor of your pending divorce and request that he or she assist you in meeting the requirements of your investment fund managers for dividing your investment accounts.

Make sure that your health insurance needs are met. If you have been covered by your spouse’s plan, you need to consider your alternatives prior to your being dropped from the insurance after the divorce. While C.O.B.R.A. may be available to you, in many instances the continuation of such coverage is prohibitively expensive.

Have your attorney obtain a power of attorney authorizing you to sell any automobiles awarded to you in the decree but owned in the name of both you and your spouse.

While the divorce court retains jurisdiction to clarify or enforce the terms of your divorce decree, it is far better and less expensive to make sure that all of the closing documents are executed either at the same time the decree is entered or as close thereafter as possible.

Kendall Goetz Named A Top Divorce Attorney in Fort Worth

Attorney Kendall Goetz“This recognition confirms what Tarrant county divorce attorneys and Judges have known for years… that Kendall is one of the best divorce attorneys in Fort Worth,” said Gregory L. Housewirth, managing partner at Schreier and Housewirth Family Law in Fort Worth. “Kendall’s clients turn to her for her fierce advocacy, wisdom, and compassion.” Housewirth added.

Divorce and child custody clients turn to attorney Kendall Goetz for her fierce advocacy, her wisdom, and compassion. She listens, she understands, and she represents.

Kendall Goetz may be reached at Schreier and Housewirth Family Law, 1329 College Ave., Fort Worth, Texas 76104; (817) 923-9999; Kendall@fwfamilylaw.com

Kendall Goetz—Schreier Housewirth

Children of Divorce During the Holidays

Divorce affects children in many ways. The feelings of loss that accompany a divorce are Child with divorced parentsheightened around the holidays, when kids are forced to adjust to life with only one parent at a time. With the holiday season approaching, there’s potential for stress and conflict over visitation schedules, but it is important that you put your children first when making holiday arrangements.

First of all, make sure you and your ex-spouse are clear on the holiday visitation that was determined in your divorce decree. You may have one of the following situations:

Alternating holidays. Each parent is assigned “even” or “odd” years to spend certain holidays with their children.

Splitting each holiday. If parents live near each other, children might spend part of the day at mom’s house and the other part with dad.

Both parents spend the holiday together with their child. This works best if both parents are amiable with each other.

Beyond the Holiday Custody Arrangement

No matter what schedule you must follow, there are steps you can take as parents to ensure that the holidays go as smoothly as possible for you and your children.

Accept your parenting plan and make the best of it. Focus on the time you are spending with your children, rather than the time you won’t be spending together. Be flexible about when and how you will celebrate. Your family won’t be able to do things the way they used to, but be creative and make new traditions with your children. Trying to divide time between mom and dad on every holiday can be chaotic for kids, so come up with a plan that works and stick to it so that children have a sense of stability and know what to look forward to.

What’s important is what’s best for your children, so keep your own emotions in check. Make sure your children can enjoy the holidays without feeling “caught in the middle.” Never place your child in the position of having to choose between parents. Rather, you and the other parent should work out holiday schedules in a way that puts no pressure on your children.

When you and your children are celebrating together, make it a “conflict-free zone.” Don’t talk about the other parent, and avoid negativity and bad vibes. Don’t try to “one-up” the other parent by making gift-giving a competition. Conflict between parents makes children dread the holidays, but this time of year doesn’t have to be stressful if both parents can put the needs of their children first.

Written by Autumn Simpson

Autumn is a student at Texas Christian University’s Honors College currently studying Pre-Law.Autumn Simpson

 

 

 

 

 

 

 

 

Looking back, looking forward: when dinosaurs and family law attorneys roamed the earth

I found myself trapped in a musty old law library last week. Seeing those aging tomes on the shelf sparked a tinge of nostalgia as I remembered the lawyers of my youth and how they were always hunkered-down over a stack of law books while scribbling notes on legal pads.

Without thinking much about it, I pulled the family law volume from the Texas Practice Series, a multi-volume encyclopedia of Texas law published in 1974. The passage I’m going to share here is so dated, so quaint in its reverence for family lawyers, and the legal profession, it’s sad.
It goes like this:

 

Lawyers studying and taking notes in libraryOn occasion “do-it-yourself” divorce kits and methods for obtaining “quickie” foreign divorces are advertised in newspapers and magazines. Although the effectiveness of these types of divorces varies according to the quality of the kit and the validity of the foreign decrees under the law of the state of domicile, there seems to be little doubt from court decisions in other states that the individuals selling these services are in violation of the law relating to the unauthorized practice of law. A New York Court, for example, was specific in identifying areas in which a layman selling the divorce kits would be liable for the unauthorized practice of law. If the layman were to give personal advice on how to use the materials or on how to deal with particular problems, he would be engaging in the unlawful practice of law; citing another case the court stated: “This is the essential of the legal practice – the representation and the advising of a particular person in a particular situation. The Florida Supreme Court has said that any instructions on how to complete the forms in a divorce “package,” or any instructions on how the forms are to be used, constitutes legal advice, with no distinction on the basis of personal dealing with the individual or whether instructions were provided for the general public.”
Time did not stand still in 1974, nor does it now. In it’s infancy, the internet was called an “information superhighway.” In this context, the word “information” is revealing as it makes no comment on the value of what’s being paraded before our eyes at warp speed. “Knowledge,” on the other hand, is an information subset, has been verified by multiple sources, and is reliable.

As for the DIY, or “Quickie-Divorce,” information came online in such a torrent and from so many sources, the State Bar of Texas and other state bar associations had to basically give up. What had once been the providence of qualified divorce lawyers now belonged to anyone with a computer and a printer. Problem was, as noted way back in 1974, some divorce kits were better than others. Family courts and the District Clerk were soon overwhelmed by the influx of litigants trying to stumble through the divorce process.

In 2012, the State Bar of Texas attempted to ease the burden on divorce courts by adopting a pre-approved set of forms for use in uncontested divorce cases. When properly completed, divorcing couples may use these forms to process their own divorce under Texas Divorce Law. While these forms can be helpful in some instances, the potential for misuse or mistake remains high.

When it comes to divorce in particular, and family law in general, many people are penny-wise and pound-foolish. When you go it alone with adivorce, some mistakes that are irreparable, and for those errors that can be corrected, the cost of such remediation is high. While much has changed in the practice of family law since 1974, visions of a kiosk-based divorce system remain nothing more than a futuristic pipedream and the need for an experienced divorce attorney remains high.

Child custody, child support and parenting plan development are important and very individual decisions for every divorcing couple. Additionally, division of community property and debt can affect you for years to come. At Schreier & Housewirth Family Law, we’ve spent 25 years helping Texas divorce and custody clients through life’s most difficult times.