Category Archives: Child Custody

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.

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

 

 

 

 

 

 

 

 

Can I get a witness? How the Rules of Evidence can torpedo your family law case

I know it’s summertime, but let’s pull out the old barrister wig, channel our inner Blackstone, and talk about evidence in family law.

In most family law cases, there’s what you know … and then there’s what you can prove.    Proof comes in the form of admissible evidence.  Admissibility is determined by the Texas Rules of Evidence.  Family court judges apply the rules.

This is why so many seemingly simple divorce or custody hearings turn sour; lawyers objecting to testimony or offers of documents and judges making rulings based on their interpretation of the evidence rules.  In court, you’ll hear some of the following objections:
can you prove it—Schreier Housewirth

  • Leading
  • Relevance
  • Hearsay
  • Narrative
  • Privilege
  • Speculation
  • Unresponsive
  • Lack of personal knowledge
  • Compound

With all these rules and their subjective and inconsistent interpretations by family court judges, it’s easy to see how what you know may not be what you can prove.

Let’s take a common example.  Texas Rule of Evidence 401 “Test for Relevant Evidence” states:

Evidence is relevant if:

a.  it has any tendency to make a fact more or less probable than it would be without the evidence; and,

b.  the fact is of consequence in determining the action.

So, evidence may be probative of a fact, e.g., the witness saw Jimmy walking down the road with a fish on a hook may tend to prove Jimmy caught a fish.  But the evidence may not have anything to do with the case at hand, e.g., does Jimmy catching a fish really matter in a child custody hearing?

You’d think there would be some uniformity in the application of these rules, but it’s not.  It’s more like calling a foul in basketball, a strike in baseball, or holding in football; it’s all on the fly.

At Schreier & Housewirth family law, we know family law evidence and help our clients prepare for their day in court.  For over 25 years, Tarrant county divorce and custody clients have turned to our law firm when proof is key and outcomes are critical.

Up For Grabs, Kids Without Court Orders

It happens all the time.  You knew things were rocky and your relationship strained, but when you come home to an empty house, it takes your breath away.  The kids… where are they?  No doubt, your spouse or partner has loaded them into the car and hit the road.

Sad man sitting on the floorWhat now?

If you are both parents of the children and there are not existing court orders in effect, you both have equal rights to the children.  Let the games begin.  If she has the children and won’t let you see them, you may have to wait until you get to court and obtain temporary orders for possession.

Or, you go to Plan B.  You go to school and pick the kids up at the end of the day before She gets there.  Score one for you.  The kids are now with you and there’s nothing She can do to wrestle them away.

What about calling the police?  Most of the time, police will be reluctant to intervene in such a situation.  At the most, they may go do a “welfare check” or knock on the door to see if the kids are OK.  However, if the kids are with the other parent, the police will not, and cannot, compel that parent to surrender the children to you.

Call CPS? You’re getting into dangerous territory here.  CPS workers know when bogus referrals are made to gain an advantage in custody litigation so you’d better have something real to report.  Did I mention a false CPS report is a crime?

It’s time to consult a good family law attorney.  I am a Board Certified Family Law Specialist with offices in Fort Worth and Dallas , and can help you during these uncertain times.

While each divorce or custody case is different, I usually recommend that my clients file their suit for custody and obtain a temporary restraining order (TRO).  These orders are granted automatically by Texas family law courts and prohibit the other parent from hiding the child, disturbing the peace of the child, removing the child beyond a prescribed area, or changing the child’s school enrollment.

A TRO is served on the other parent along with the petition for divorce or custody and remains in effect for up to 14 days.  Before the TRO expires, a hearing will occur in court to determine whether the TRO should be made an injunction and other, temporary orders for custody should be entered by the family court.   In most cases, serving a TRO on the parent in possession of the child is both a deterrent and a conversation starter.

A typical, TRO will not, however, award you emergency possession of your child.  To get emergency possession of children and deny the other parent possession prior to a full custody hearing, you have to do more.  You have to submit to the court a supporting affidavit, alleging that the children are in immediate danger and that they could be subject to further abuse or neglect if allowed to remain with the offending parent.  Again, this is your time to consult a family law specialist who knows what facts are important to the court and can help you prepare your affidavit.  Remember, family court judges are very cautious about denying a parent possession of a child, so your affidavit has to overcome this reluctance by the court.

So, let’s conclude by returning to the normal scenario; two fairly decent parents who have put their children in the middle of their divorce or custody case.  Here’s what to do.  Stay calm during these first few days before you get to court and know that he or she will not be able to deny you the children.  In fact, this kind of unsophisticated warfare comes back to haunt the offender.

Finally, you need a lawyer who knows family law, child custody, and divorce.  This is no time to do it yourself.

CHILD CUSTODY LAWYER EXPLAINS CONSERVATORSHIP LAWS IN TEXAS

All kids’ issues originate from these core questions:

  • Who will be named as conservators of the child?
  • Which conservator has the right to designate the primary residence of the child?
  • Will the domicile of the child be restricted to a certain geographic area?
  • How will time with the child be allocated between those persons named as conservators? And,
  • How will the child be supported?

A case concerning a child is called a “Suit Affecting the Parent-Child Relationship.” Such a suit is defined as, “a suit in which the appointment of a managing conservator, or a possessory conservator, access to or support of a child, or establishment or termination of the parent-child relationship is requested.”

In a Suit Affecting the Parent-Child Relationship the Court may appoint a sole managing conservator or may appoint joint managing conservators. If the parents of the child are separated, for instance in a divorce, the court shall appoint at least one managing conservator of the child.

While the Suit Affecting the Parent-Child Relationship typically involves only the parents of the child, it is important to know that other people in the child’s life may have the legal right, called “standing”, to file such a suit. For instance, a person who has had actual care, custody and control of a child for at least six months has standing. Likewise, if both of the child’s parents are deceased, a relative of the child within the third degree of consanguinity has standing. As a final example, a CPS foster parent who has had possession of the child for one year has standing. You should talk to a family law lawyer to learn about other examples of standing.

If the parents of a child are divorcing, the law requires that the Suit Affecting the Parent-Child Relationship be included in the divorce. In other words, the divorce court will enter orders regarding the conservatorship and support of your child at the same time it enters orders for the division of your marital assets and debts.

In a Suit Affecting the Parent-Child Relationship, the court is guided by the following principles:

  • Children should have frequent and continuing contact with parents who have shown an ability to act in the best interest of the child;
  • Children should grow in a safe, stable and nonviolent environment;

Parents should be encouraged to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

Also, and most importantly, the Family Code states, “The best interests of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”

While the Family Code does not specifically define the word “conservator”, it is easiest to think of a conservator as someone who has one or more “rights, duties, or powers” to a child by virtue of a court order. The Family Code does elaborate on the concepts of “Sole Managing Conservatorship”, “Joint Managing Conservatorship”, and “Possessory Conservatorship”.

Unless the court finds that appointment of a parent as a managing conservator would significantly impair the child’s physical health or emotional development, a parent of the child shall be appointed as a sole managing conservator or both parents shall be appointed as joint managing conservators of the child. In other words, at least one of the child’s parents is going to be “raising” the child unless the court finds that neither parent is able to meet the child’s physical and emotional needs.

Texas courts presume that the child’s parents will be appointed as joint managing conservators. This means the parents will share the rights and duties of a parent. Note, however, that certain rights and duties may be awarded exclusively to one parent.

A court may decline to appoint joint managing conservators and instead name one parent sole managing conservator if the court finds there has been a history or pattern of family violence involving the parents or the child.

Additionally, the court will consider whether the joint managing conservatorship is in the child’s best interest considering the following factors:

Any joint managing conservatorship, whether entered into by agreement of the parents or ordered by the court, must contain provisions that:

If feasible, recommends that the parties use an alternative dispute resolution method before requesting enforcement or modification of the court’s order through further litigation.

Assuming that the parents are going to be appointed joint managing conservators, most disputes center upon the following issues:

As noted above, depending upon terms of the court order, these decision making powers may be allocated to one parent exclusively, require the joint agreement of both parents, or be exercisable by each parent individually when the parent has possession of the child.

As a final point on joint managing conservatorship, it should be noted that a joint conservatorship does not imply that each parent will have actual possession of the child fifty-percent of the time. Possession issues are addressed below.

If the court declines to appoint the parents joint managing conservators, one parent will be appointed a sole managing conservator of the child will have the exclusive power to make critical decisions for the child. In short, the sole managing conservator is “raising” the child while the parent named a possessory conservator typically will have the right to obtain information from the other parent, schools or doctors regarding the welfare of the child, but will not have authority to participate in decision making. A possessory conservator can consent to emergency medical care and is obligated to provide for the child during times of possession.

Which conservator has the right to designate the primary residence of the child?

While the Family Code emphasizes a preference for “co-parenting” even when the child’s parents are divorced or separated, the determination of the child’s primary residence continues to be a difficult and emotionally charged issue for many parents. While the Family Code gives no specific definition of “primary residence”, the term is best described as the residence that will be the child’s “home base” and be used for the child’s school enrollment.

The parent with the “primary” designation will have possession of the child at least half the time and will be entitled to receive child support from the parent who does not establish the primary residence. Additionally, unless there is a specific agreement to the contrary, the “primary” parent will have the right to claim the dependency exemption for the child on his or her federal income tax return.

In cases where there is disagreement as to which parent should be permitted to designate the child’s primary residence, many courts will appoint a qualified investigator to perform a social study into the circumstances of both parents and the child. The investigator is usually a trained social worker, psychologist or other similar person known to the court. The investigator will interview both parents and their references. Also, the investigator will usually observe each parent interact with the child, and if the child is of sufficient maturity, have a direct conversation with the child about his or her desires. At the conclusion of the investigation, the investigator will furnish a detailed written report to the court with specific recommendations regarding conservatorship and primary residence of the child.

A child 12 years of age or older may indicate to the court in writing the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child, subject to the approval of the court.

Will the domicile of the child be restricted to a certain geographic area?

Consistent with the public policy that both parents have continuing and frequent access to the child, the Family Code requires that, in a joint managing conservatorship, the issue of “domicile restriction” of the child be addressed. The court order must specify either that there is, or is not, such a restriction on where the “primary” parent may establish the child’s residence.

Assuming that both parents have been meaningfully involved in the child’s life, most courts in North Texas are inclined to impose the restriction providing that, so long as the non-primary parent continues to reside in “X county” or a contiguous county, the primary parent shall be required to establish the residence of the child within that same area until further order of the court.

Note, however, that the restriction may be more narrow, for instance limited to a school district, or more broad, for instance one or more States, depending on the particular circumstances of the parents and the child.

Such restrictions pose a difficulty when, for instance, the “primary” parent must relocate to another location for business or other purposes. Whether the court allows the primary parent to relocate outside the domicile area with the child depends on a number of factors such as the nature of the relationship between the child and the non-primary parent, the reason for the relocation, the age of the child, and the availability of air transportation between the new location and the original county of residence.

How will time with the child be allocated between those persons named as conservators?

The Standard Possession Order is to be used by the courts as a guide in ordering the terms and conditions for possession of a child by a parent named as a possessory conservator or as the minimum possession for a joint managing conservator.

Again, in real-life, courts are inclined to give non-primary parents “standard possession” unless there is specific evidence that such possession would be inappropriate. A history of family violence, alcohol or drug abuse, unstable living conditions, irresponsible sexual practices, or even excessive interrogation of the child during times of possession are all factors that could lead a court to impose restrictions on a parent’s times of possession.

Possession in excess of “standard” usually occurs in situations where the parents live in close proximity to one another and can alternate times of possession with out disrupting the child’s school and other activities. Obviously, both parents have to be appropriate caretakers and be able to tolerate a high level of interaction with one another.

The Standard Possession Order does not apply to children under three years of age. In such situations the specific possession schedule entered will depend on the particular circumstances of the parents. As a general rule, it is believed that younger children should have more frequent, but less lengthy, contact with the non-primary parent.

For instance, two hours access each Tuesday, Thursday, Saturday may be appropriate for a child up to six months of age. The possession schedule would “stair-step” as the child grows older. For instance, the above schedule may be increased to 6 hours each Saturday until age one and then progress to one over-night visit at age one.

At the other end of the age spectrum, the Standard Possession Order becomes increasingly problematic as the child reaches the teen-age years. School, sports and friends occupy most of the child’s time. Most non-primary parents work with their children to informally “adjust” the possession schedule depending on the child’s needs and activities. To avoid being left out of the picture, the non-primary parent should consider taking an active interest, or participate, in their child’s extra-curricular activities.

How will the child be supported?

The Family Code provides that the non-primary parent, either a non-primary joint managing conservator or a possessory conservator, make periodic payments to the primary parent for the support of the child. Additionally, the person ordered to pay child support, the “Obligor”, will be ordered to provide medical support (health insurance) for the child.

While the Family Code lists a number of factors to be considered by the court in setting child support, most often the amount of child support is calculated by applying the child support guidelines to the net resources of the Obligor. To summarize, “net resources” includes all income of every nature, such as wage and salary income, interest income, bonuses, fringe benefits, rental and royalty income, stock dividends less social security taxes, federal income tax, union dues and expenses for health insurance coverage for the child.

Once net resources is calculated then child support is calculated based upon the following percentages:

The child guidelines apply to the first $6,000.00 of the Obligor’s net resources. In other words, the cap for one child is $1,200.00 and $1,500.00 for two children. Additional child support may be paid based upon the proven needs of the child in excess of the cap amount.

Note that if the Obligor is supporting other children in another home, the above percentages will be slightly decreased.

Health insurance premiums paid by the Obligor are in addition to the child support amount to be paid as computed above.

In all cases where child support is ordered, the court will enter a wage withholding order. This order is served on the Obligor’s employer and orders the employer to withhold the child support due from the Obligor’s pay and to remit the child support directly to the child support collection agency.

Child support will be payable until the child graduates from high school or turns 18, whichever occurs later, or the child dies, marries, or the child’s parents marry or remarry. Parties should always specify that the child support obligation will survive the death of the Obligor and it is wise to include a provision in the court order that the Obligor maintain life insurance to secure the child support obligation.

All payments of child support now pass through the State Disbursement Unit in San Antonio, Texas. This centralized process is to improve upon the monitoring and collection of child support payments by the Office of the Texas Attorney General.

To conclude, while there is no debtor’s prison in Texas, an Obligor who fails to pay child support as order faces a fine, jail, or even the loss of his or her driver’s or professional license.

  • Whether the physical, psychological or emotional needs and development of the child will benefit from the appointment of joint managing conservators;
  • The ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child ‘s best interests;
  • Whether each parent can encourage and accept a positive relationship between the child and the other parent;
  • Whether both parents participated in child rearing before the filing of the suit;
  • The geographical proximity of the parents’ residences;
  • If the child is 12 years of age or older, the child’s preference, if any, regarding the appointment of joint managing conservators; and,
  • Any other relevant factors.
    • Designate the conservator who has the exclusive right to determine the primary residence of the child;
    • Specifies the geographic area within which the conservator shall maintain the child’s primary residence or specifies that the conservator may determine the child’s geographic residence without regard to geographic location;
    • Specifies the rights and duties of each parent regarding the child’s physical care, support, and education;
    • Includes provisions to minimize disruption of the child’s education, daily routine, and association with friends;
    • Allocate between the parents independently, jointly, or exclusively all the remaining rights or duties of a parent;
    • Which parent has the power to designate the child’s primary residence?
    • Will the primary residence be restricted to a particular area?
    • How will decisions be made regarding the child’s education?
    • How will decisions be made regarding significant medical issues?
    • How will decisions be made regarding the child’s religious training?
      • For one child, 20% of the Obligor’s net resources
      • For two children, 25% of the obligor’s net resources
      • For three children, 30% of the obligor’s net resources

    For four children, 35% of the obligor’s net resources

A Creative Custody Arrangement During Divorce

Sad Child and Moving BoxesI’ve been working with a client who is unwinding a 20 year marriage after discovering his wife’s infidelity.  They have two children, both of whom have Asperger’s and are resistant to change. Currently, my client and his wife are both residing in the marital residence, but tensions are such that this arrangement is unsustainable.

Both are good parents who wish to meaningfully parent their children after the divorce. Eventually, each will obtain his or her own residence, but at this time, cash flow is a huge concern.  Remember, in every divorce, you’re making two homes out of one, and this can really stretch family income.

I suggested they try a nesting arrangement, leaving the children in the home and alternating weeks of parenting time.  Obviously, in “off” weeks, each spouse is going to have to find a place to stay, possible with other family or friends.  Think of it as the baby birds staying in the nest and the parents coming and going from the nest.

The advantage to this arrangement is that the adults (mom and dad) alter their living situation to accommodate the children rather than the children shuttling between home and new and unfamiliar environment.  During a divorce, it is important for children to maintain their connection with friends, school and other things familiar and comforting to them.

As you can imagine, this custody arrangement has its limitations and probably isn’t built to last.  At some point, you’ll want to establish a comfortable home for yourself and stop camping-out in the weeks you are out of the house.  In my years of divorce practice, I’ve never seen parents alternate weeks at home for more than an six months or so.

Nevertheless, nesting can be a helpful transition into a permanent co-parenting plan after divorce.

 

 

Getting to Know Our Family Law Clients

getting to know our clientsWhen you hire Schreier & Housewirth Family Law for your case, plan on spending some time with us here at the office.  That’s because we will take the time in our initial client intake meeting to really get to know you and your case history.

In family law, it’s often the “back-story” that drives the “lead-story.”  Did his mother always hate you?  Where was she really when she said she was working late?  Why did his uncle loan you the money?  These seemingly trivial questions often unlock a wealth of vital case information.

Knowing your story helps us develop themes critical to the presentation of your case… and helps us to re-package for court your prior failings and indiscretions.

Our clients know, and expect, a close attorney-client relationship when they come to our Tarrant County Family Law offices.  It’s our willingness to take the extra time, that has earned Schreier & Housewirth Family Law the trust of divorce and custody clients for over 25 years.

The Shoebox And Other Mysteries Of Medical Support For Kids

The Shoebox And Other Mysteries Of Medical Support For KidsSo, you think you know a little about Texas child support laws, right? You’ve heard about the Texas child support guidelines, wage withholding orders, and even the dreaded contempt of court for those who don’t pay. These are all good things to know given that child support is a necessary consideration in every divorce and child custody suit.

But, there’s something else you should consider when crunching those child support numbers: medical support. If you’re in a Texas divorce or child custody case, your mandate is already here. The Texas Family Code plainly states, “The court shall order medical support for the child.” Further, the Code states, “The guidelines for support of a child are based on the assumption that the court will order the obligor to provide medical support for the child in addition to the amount of child support calculated.”

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Fort Worth Collaborative Lawyers Redefine Divorce

An unhappy coupleDoes every Fort Worth divorce or child custody case have to end in a bitter trial? While in days gone by, a Fort Worth divorce attorney devoted the majority of his or her time to preparing clients for that day of reckoning at the courthouse, times have changed.  Although popular media still glorifies the drama of such trials, family law lawyers in Fort Worth have embraced collaborative law as a smart alternative to trial.

Divorce trials put people in an adversarial framework where the only means of achieving success is at the expense of their spouse.  Unfortunately, Dallas divorce attorneys as well as Fort Worth divorce attorneys learned that such “winner take all” conflicts at the courthouse did not lay the foundation for effective co-parenting post-divorce.  Ultimately, it is the children of these divorces who pay the price when they are caught in the middle of parental conflict and bitterness caused by a bitter divorce in Fort Worth.

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What To Do When Your Custody Order Stops Working

Woman Hugging her SonIf you have a crystal ball, be sure to bring it with you when you negotiate the child custody provisions in your Texas divorce decree or visitation order. That way, you’ll see the future and make sure your divorce decree covers every contingency between now and the time your child walks out the door as an adult.

If you’re like the rest of us and don’t have the proverbial crystal ball, chances are you’ll need to modify your divorce decree when circumstances change with the help of a Dallas divorce attorney. In Texas, a family law court retains jurisdiction to modify the custody provisions of an order until the child reaches adulthood.

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