JUST THE FACTS MA’AM

By | Alienation, Child Abuse, Co-Parenting, Custody and Conservatorship, Divorce, Trial Issues

It’s a given – as parents we want what is best for our child.  I’m a parent, and I believe I am the ONLY person who knows what my kids needs and what is best for them (we won’t talk about the fact that my “children” are 28 and 24 – that’s a completely different topic.)

I’m Right and You’re Wrong

When parents can’t agree because they each have different beliefs about what is right and best for their child, the Judge makes decisions for them and for the child.   Ironically, at that point, both parents lose complete control of the situation because a third party (the Judge) is going to make decisions regarding their child.

So, how does a judge, who has never met you, your spouse, or your child decide what is best?  What does a judge look at when making rulings about conservatorship, possession, and support?   (Let me assure you that most, if not all, of the Judges I know are thoughtful, concerned, well-intentioned, knowledgeable, and extremely smart.   Although I may disagree with a ruling, in my experience each Judge makes decisions after listening closely to the evidence and carefully considering what is best for the child.)

Facts vs. Beliefs/Feelings

You are not going to like this, but there is a difference between feelings/beliefs and facts.   Fact – your child failed English.  Feeling – mother is to blame for the child failing English.  When you say you are “right” and he is “wrong” – you are expressing your feeling and not a fact.   I know this is horribly distasteful, but the distinction is important.

Feeling Becomes a Fact

Each case is different, but part of your lawyer’s job is to help you convince the Judge that your feelings are fact and that you know what is best for your child.  You do so by introducing evidence which supports your feeling.

The “fact” is your child failed English.  You “feel” it is Mom’s fault the child failed English.   To prove your feeling is a fact, you introduce the following hypothetical evidence:

  • English is the child’s first class of the day
  • Child was late to school many times and sometimes entirely missed the first class of the day
  • Mother took the child to school each day
  • Mother did not respond to the teacher’s numerous emails about the child not turning in work and falling asleep in class.
  • Mother allows the child to set his own bedtime and does not check on the child to see that he is asleep

Gold Standard – Best Interest of the Child

The best interest of the child is the guiding principal behind and the standard for making decisions regarding a child.  After hearing the evidence and observing the witnesses, the Judge makes decisions which best provide for and foster the child’s happiness, security, mental health, and emotional development under the facts of that particular case.  In Texas, generally, it is in the child’s best interest to have a good relationship with and frequent contact with both parents.

Evidence of Best Interest

The Court looks at many factors in deciding what is in the child’s best interest.    In my opinion the following absolutely is not an exhaustive list, but does contain some of the evidence a Court may consider in making decisions about the best interest of the child:

  • Emotional, educational, medical, physical, and basic needs of the child – which parent is better able to identify, understand and meet those needs (which are different and change depending upon the age of the child)
  • Stability – which parent has been the primary caretaker of the child. Courts want the children to be affected as minimally as possible by divorce.
  • Safety – is domestic abuse present? Does either parent use alcohol to excess or drugs while in possession of the child?   Does either parent allow the child to be in the presence of a registered sex offender or a person who uses drugs?  Does either parent operate a motor vehicle while intoxicated while the child is passenger in the vehicle?
  • Mental and physical health of the parent – Does either parent have mental or physical health issue which affects his ability to care for the child?
  • Emotional Ties – What is the relationship between the child and each of her parents? Why does the child not want to spend time with her father?
  • Alienating Tactics – does one parent talk about the litigation with the child? Does one parent share details of an affair which led to the breakup of the marital relationship?   Does one parent say derogatory things about the other parent to the child?   Does one parent hide the child from the other parent?
  • Child’s Wishes – what does the child want? This factor is extremely dicey and should be approached with great caution and finesse.  When the child is asked about his or her desires, the child is placed in the middle and is required to choose between parents.   Moreover, although children are very smart, they do not understand adult situations and are not able to comprehend what is in their best interest.   The age and maturity of the child are huge components of this factor.

Cost of Being Right

In closing, the general consensus is that usually a child’s best interests are best served when parents are able to work together and make joint decisions for the child.   This is not because Judges are not capable, but because in a trial each parent’s goal is to prove “I am right, and you are wrong.”  To prove he or she is right, each parent is going to sling a lot of mud at the other, which will increase the animosity, anger, and hostility between them. Parents spend years resolving these emotions, which invariably trickle down to your child, and your child will most likely suffer as a result. With this in mind, I encourage you to think carefully before you back yourself into the righteous corner, put on your gloves, and come out swinging.

 

 

 

TEMPORARY ORDERS – BUT I WANT MY DIVORCE NOW!

By | Child Support, Co-Parenting, Custody and Conservatorship, Divorce, Marital Property Division, Trial Issues

We have all heard the expression that “Rome wasn’t built in a day.”   Well unfortunately, that adage holds true for your divorce or lawsuit pertaining to your child.

In Texas, a divorce cannot be granted until at least the 60th day after the Petition for Divorce was filed.  (Do not expect that your divorce is going to be final on the 60th day because that almost never happens.)

The time span between the date of the filing of the Petition for Divorce and the date the Final Decree of Divorce is signed can range from a few months to a few years.  Often parties to the lawsuit are unable to agree about how life will look during this in-between-time.   So, the Texas Family Code allows parties to request a hearing on temporary orders and gives the Court the authority to grant temporary orders.   Temporary orders generally address issues related to children and property and can also enjoin parties from doing certain things.

Each spouse has an obligation to support the other spouse for so long as the parties are married.   With that in mind, we often see provisions in temporary orders that do not carry forward into a Final Decree of Divorce.

Temporary Orders is a big topic which encompasses a lot of information.   For that reason, I am going  to talk about various issues  in separate blogs and videos.  This particular blog/video provides general information which lays the framework for the following blogs and videos.

Temporary Orders for Issues Relating to Children:

The issues related to children which can be addressed by temporary orders include, but are not limited to:

  • Conservatorship
  • Possession
  • Child Support
  • Medical Support
  • Appointment of Attorney Ad Litem or Amicus Attorney for the child
  • Drug and alcohol testing
  • Appointment of various experts, such as psychologists, psychiatrists, educational diagnosticians
  • Child Custody Evaluation
  • Social Studies

Temporary Orders for Issues Related to Property:

The issues related to property which can be addressed by temporary orders include, but are not limited to:

  • Temporary award of marital residence
  • Temporary award of personal property
    • Cars
    • Personal items
    • Bank Accounts
    • Livestock
  • Temporary award of management of businesses
  • Temporary payment of debts
    • Mortgage
    • Car Payment
    • Living expenses
    • Insurance
    • Credit Cards and other unsecured debt
    • Temporary Spousal Support

Injunctions

The Court can also issue Injunctions.  An injunction is an order which prohibits a person from doing a certain act. During a divorce, the purpose of the standard injunctions is to maintain the status quo and to preserve the community estate by prohibit parties from hiding and squandering assets.    Injunctions can also protect children and parties from harassing behavior.

Before I go to court for a hearing on temporary orders, I need information from my client to properly prepare and also to use as evidence at the hearing, which I will talk about in my next video.

Remember that good results take time and patience is a virtue.

PREPARE TO MEET WITH YOUR ATTORNEY

By | Child Support, Co-Parenting, Community Property, Custody and Conservatorship, Divorce, Just and Right, Marital Property Division, Separate Property, Wellness

I am here to help you.    Very simply, a large part of what I do is to ask questions and receive information.   Once I have sufficient information, I am then able to strategize with you and move forward to solve your problem.

Many of you have never met with an attorney, so you don’t really know what to expect.    I am going to tell you some things you can anticipate.  I hope that having this knowledge will put you at ease.  I want you to feel relaxed and comfortable for your first meeting.

Typically, during my initial meeting the first thing I want to do is to hear from you.    I want to know the good, the bad and the ugly of what has brought you to my office.   I want to hear about your children and about their relationships with you and the opposing party.  I want to hear about your property – what assets and liabilities do you have.

After you have told me about your situation, I will explain the legal process to you and strategize with you to develop a plan.   I will not have all of the answers at this point.

VERY IMPORTANT – ABSOLUTELY DO NOT WORRY IF YOU DO NOT HAVE ANY OR ALL OF THE FOLLOWING INFORMATION.   I have found that if you have made a list containing the following and have made copies of financial documents, we can spend less time talking about the basics and more time strategizing.

Information pertaining to your children

  • Full name, sex, and date of birth for each of your children
  • Names of school(s) your children attend and the name of the child care provider(s)
  • Activities in which your children participate
  • Special needs (if any) of your children

Financial Information:

  • Information about your income such as tax returns and/or most recent paystubs for you and the opposing party
  • Bank accounts (name of bank and account numbers)
  • Credit cards (name of credit card, account numbers, and amount owed)
  • Year, make, and model of all vehicles
  • Amount of mortgage or rent

Personal Information

  • Your full name, address, phone number, date of birth, and email address
  • Opposing party’s full name, address, phone number, date of birth, and email address
  • Name of your employer (if any)
  • Opposing party’s employer (if any)

I strongly encourage you to make a list of questions to ask.

If you are modifying a prior court order, please bring a copy of the court order with you to the meeting.

If you have been served with a lawsuit, please bring a copy of the papers to the meeting with you.

Remember, I am here to help you!

 

Sharing Children in a Quarantine

By | Alienation, Child Abuse, Child Support, Co-Parenting, Custody and Conservatorship, Domestic Violence, Uncategorized, Unsolicited Opinions

I came across this article during one of my episodes of insomnia this week and it really brought home the need for this blog. “I just want this to be over soon. I can’t wait to hold my kids again” said a father with COVID-19 in a crowded hospital in the middle of Wuhan, China. I pictured how I might feel alone in a hospital, wondering if I was going to die and wishing I could see my children. The sinking feeling that touching your own child would expose them to life and death danger. Candidly, I already hesitate to hold them like I did pre-COVID-19.

As a family law attorney, I have seen mothers be forced to stop nursing their babies so that the fathers can have thirty days of summer possession. I have seen a father in congestive heart failure beg a judge to give him more time with his baby. I have listed to audio recordings of spouses physically assaulting one another over the whimpers of their children. I have seen children be returned to parents who have hurt them.

As we face the prospect of quarantine and lack of ventilators, I am going to see parents crippled with the thought of not seeing their children indefinitely, penniless to support their hungry children, and worse. I could see a child lose a parent in a matter of four days without warning or the last chance to be held in their arms. With the #flattenthecurve movement, none of this could happen. Here are my recommendations if it does:

  1. COVID-19 DOES NOT EXCUSE YOU FROM THE ORDER. Every effort has to be made to follow the court ordered schedule. If you are the family that follows orders and doesn’t agree on a weekly basis to how to share time, then you need to continue to follow the details. Surrender on time and at the right location. If your community is “locked” down, then you still need to try to meet that schedule. Adjust on the time and the location by agreement as needed, but wholeheartedly try to get there. If you do not comply with the order and have no documented history of meaningful attempts to return the children, then you better have one heck of a lawyer.
  2. HIGHER COURTS.  We have seen the great emergent work of the Texas Supreme Court and the collaborate effort of District Courts in distributing interpretations of never before seen issues. Last week we got orders that courts were going to consider the original calendar of the school before the COVID-19 cancellations. That quick move, ensured most kids were returned to the other parent before school was supposed to resume rather than permitting a parent to keep the child based upon the technicality that spring break had been “extended”. This could happen again as the crisis unfolds. Look for these before you draw any hard lines.
  3. YOU CAN ALWAYS ALWAYS AGREE. Always always, you can agree to something other than what your order says. Best practice to is to get it in writing – email is best. There are too many ways to misread a text.
  4. PROTECT THE CHILDREN. Children need to be in the safest environment possible. Do what you have to do to keep the children safe from this virus. There is some data that children are getting sick, so allow them to be in the best environment for that. That means houses are better than shared apartments, parents with the resources to actually attempt the home-school environment, parents who are less likely to be exposed to the front lines of the pandemic. If you are a first responder, and you feel compelled to keep a distance from your children, then do it. You will not be punished by the courts (or shouldn’t be) for that selfless decision.
  5. NOTICE. Parents should inform the other of any symptoms in their households immediately.
  6. ELECTRONIC COMMUNICATION. There are so many options for parents now. There is facetime, marco polo, video games, apps, and so forth that allow kids and their parents to communicate. No rules during this crisis, do it as freely as possible.
  7. CHILD SUPPORT. This is a real thing. People are losing their jobs left and right and wild predictions are being made that unemployment will surge to 20%. If a parent who normally pays child support loses his or her job, he or she is entitled to a modification of his child support. The Courts are mostly closed but still, there is a way to put a pin in the arrears (total amount owed) by filing a modification action and asserting that the new calculation should be made retroactive to the date of the filing. Because unpaid child support can land a person in jail, its important to change the amount as soon as possible. Generally, the lowest child support can go is based upon minimum wage, therefore: $227 for one child, $284 for two children, $340 for three and so on. This does not include the ongoing obligation to insure the child and cover uninsured expenses.If you are left with nothing and you have primary conservatorship of a child, you have grounds to file an emergency motion. Emergency motions are currently being heard by the local courts. 
  8. SUPERVISED VISITATION. If you are currently visiting your child under terms of supervised possession, it could foreseeably be cancelled. Be ready for that. At this time, exchanges at the courthouse have been cancelled and as people become more sick, there will be fewer willing supervisors.
  9. CPS and VIOLENCE. We may see an uptick in reports of violence and child abuse. If CPS is backlogged, you are free to hire a private attorney and seek to have an emergency motion. Again, emergency matters are being considered by our fearless judges.
  10. MAKE UP TIME. Yes, there is such a thing as a motion for make up time and those hearings will be filling the courthouses to settle the score against parents who did not play fair during this crisis. Here is how you ask for it and how you set up the best case to get it.

Scenario 1: A parent is a first responder and feels it would be best not to expose his or her daughter to the virus during the height of the crisis.

Dear John/Jane Doe,

The Fire Department has asked me to work four 12 hour shifts over the next six days which could be the height of the crisis. As much as I would love to keep Sal during this time, I don’t think its in her best interest to be exposed to what I may bring home. Would you mind keeping her during my regularly scheduled time and if so, would you agree to allow me to take her 4 extra days as soon as the crisis is over?

Response: 

Ill keep Sal. But on the four extra days, it really depends. I have Sal signed up for a bunch of camps and she is really looking forward to it. We also planned to go to Florida but I’m not sure. It depends if my new spouse can get off of work. 

Now, in the above scenario, the other parent may gladly take the days off your hands but not firm up the other side of the deal. If this is a case, continue to put Sal’s interest first by avoiding her until you are cleared, then lawyer up and get those days back.

Scenario 2: A parent becomes symptomatic and fears the worst. That parent is stuck between getting their child sick, exposing their other family to it and ya know, their own mortality. But whose to say the other parent has a sterile residence ready to go?

Dear John/Jane Doe,

This morning I wasn’t feeling well and by lunch I was running a 101 degree fever. I haven’t been to China and I have no other symptoms. I just wanted to let you know. Sal has been good, she has completed two online courses and I’ve been sure to keep my distance.

Response:

Thank you for letting me know. Do you think you have COVID-19? I think Sal should stay with me until you are better but my mom is with us and she has COPD so I don’t know what is worse. Can you get tested?

In this scenario, you have to assume there won’t be any tests and neither one of these parents will know what to do. They will have to figure it out together. Sal may be carrying the virus and its not ridiculous to think she should stay with the symptomatic parent. This is a close call. Either way, a Court would freely grant make up time so do it on your own and get it in writing. Land the plane.

DM us on Facebook @DeckerPoole or Insta @deckerpoolepllc with other issues/concerns.