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!

 

Lessons Learned from ‘The’ Brad Pit from his Custody War with ‘The’ Angelina

By | Alienation, Child Abuse, Divorce, Domestic Violence, False Allegation, Trial Issues, Uncategorized, Unsolicited Opinions

Brad Pitt’s strategy in getting his kids back is what I call the coiled approach. A snake’s coil is the perfect combination of defense and offence. The retreat to a coil prepares its body for an attack and the coil provides the force to strike. Don’t ask if I regularly call my clients snakes. That’s beside the point.

In 2016, at the outset of the divorce litigation, Angelina accused Brad of being dangerous in an effort to reduce his access to their six children. Brad could have responded that he is no more dangerous than the drinking, pot smoking, partier he was when Angelina stole him from Jennifer Anniston. They could have argued for days in court about what constitutes emotional abuse of a child. That knee jerk response would be a point well taken but ultimately a swing-and-a-miss, accomplishing nothing except to frame Brad as a defensive and argumentative father.

Instead, Brad coiled up and got sober. He went to therapy and confessed his weaknesses to Rolling Stone and People among other publications. Who doesn’t want a father who is willing to take a look at the man in the mirror? Ew, probably should not cite anything Michael Jackson. (gag)

Two years after filing for divorce, and with Brad sober and well coiled, Angelina became increasingly more difficult. Her demands became petty, drowning out any normal concerns that may still exist. She reportedly will not allow Brad access to the kids via phone or without a therapist present. For real? Brad was cleared of all allegations. What’s with the irrational demands?  No wonder he drank so much. It wasn’t until the Court threatened to award Brad custody of the 6 kids, that she pulled herself together to comply with the Court’s orders.

Having overcome the initial allegations without being defensive, Brad now controls the stage when it’s time for the final act. Angelina is now on the defensive just as their three years’ divorce is closing. Brad gets to have the last word as the curtains close. Well played Mr. Pitt.