RESIDENTIAL EVICTIONS AND COVID19 – UPDATED

By | Construction & Real Estate News|Firm News, Domestic Violence, Real Estate Law

On April 6, 2020, the Supreme Court of Texas extended the deadlines regarding residential evictions.

Under the “old normal,” when a tenant violated a residential lease agreement, the landlord could evict the tenant by filing a lawsuit, serving the tenant with notice of the lawsuit, and having a hearing.

The Ninth Emergency Order applies only to residential tenants.  Trials, hearings, or other proceedings cannot be conducted until after April 30, 2020 and a writ of possession may not be executed until after May 7, 2020.    This means that a court cannot have an eviction trial until after April 30, 2020 and landlord cannot regain possession of the property until after May 7, 2020.

Before April 30, 2020, a landlord can file a residential eviction lawsuit at any time; however, the landlord cannot serve a tenant with notice of the eviction until after April 30, 2020.

The Supreme Court carved out an important exception –a “Sworn Complaint for Forcible Detainer for Threat to Person or for Cause.”  If the landlord believes that a tenant is being threatened or a crime is being committed, the landlord can file a Sworn Complaint for Forcible Detainer for Threat to Person or for Cause.    That complaint must be sworn to or have an affidavit attached to it which describes:

          1) that the actions of the tenant or the tenant’s household members or guests, pose an imminent threat of physical harm to the plaintiff, the plaintiff’s employees or other tenants, or

          2) criminal activity.   

The threats and/or criminal activity must be within the personal knowledge of the person signing the statement.   The complaint and/or affidavit must be signed in front of a notary public.    If the landlord does not have personal knowledge, the landlord can still file the complaint and attach an affidavit signed by the person with personal knowledge to the complaint.   For instance, if the landlord had rented to a husband and wife and the wife physically assaulted the wife.    The landlord could file the complaint and attach the affidavit of the wife to the complaint.   If the court determines that the complaint satisfies this requirement, the court can proceed and have a hearing.

The rationale behind the Supreme Court’s order is obvious – during this time when many people are not able to work, tenants should not fear being kicked out of their homes.   At this same time, landlords can still file eviction lawsuits and tenants who are threatened can still be protected.

 

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.

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.

 

Mistakes people-pleasers make when divorcing a narcissist, from a divorce lawyer

By | Co-Parenting, Community Property, Custody and Conservatorship, Divorce, Domestic Violence, Just and Right, Marital Property Division, Separate Property, Trial Issues, Unsolicited Opinions, Wellness

So common is it that a potential new client tells me that they are married to a narcissist, that I actually have a specific knowing smile in response and I swear to myself I should create a YouTube channel about divorce and narcissists. I’d make a fortune even if I only charged $5 a viewing.

Note: I am not a psychologist, psychiatrist and I have zero training to be preaching about personality disorders. Everything I know, I’ve learned on the job. Take it with a grain of salt.

Did Tom Cruise really love Katy Holmes? Or, did he love how she looked when he was looking down on her from his stool in their wedding photos? He certainly made a fool of himself in the name of love but wasn’t it really more about the attention he got? Despite reports that Katy “won” their divorce (or at least did better than Nicole Kidman), I’d put money on Tom bragging that he was the one who outsmarted her and that the reason he has Suri most of the time is because “he let her.”

Divorcing one of these gems? Here are some common mistakes people-pleasers make divorcing narcissists. Drum roll please. . .

  1. Not filing first. Assuming you have made the moral decision to get divorced, be the first one to file for divorce. The person who files first gets to go first. That means that party gets their story out first at the hearing on temporary orders and at trial. It means that person’s lawyer will give the first impression of the case. The person who goes second or last has the hard job of disproving what has already been said or suggested and retelling the story in his or her own light. It’s a compromising position. Most likely the narcissist will have a “poor baby” approach, as in, “I really had no choice but to file, since he doesn’t bring me coffee anymore” and with this story line going first, it forces the people-pleaser to get defensive which drowns out the real story, that being that there was no room for another person (you) in the marriage to a narcissist.
  2. Be ready to fight the obvious. A people-pleaser would never sell a car to a friend for a premium price, but a narcissist would. A narcissist would never concede you broke up with her, but a people-pleaser would let you have the final word. Do not assume that just because you have always taken care of the kids or operated the business that your spouse will concede that you are primarily responsible for those items. This is especially important because you need establish the status quo to your judge. Be ready to defend the last two years of painful homework projects or to demonstrate you have prepared all the company’s tax returns and landed the biggest client.
  3. Trying to prove a point. Don’t. Even. Try. What does it matter if you have won every battle or even the war? It will make no difference to the narcissist, who is still clothed as an emperor. Narcissists will walk out of a courtroom having been ridiculed by a judge and want to celebrate with the local sommelier’s choice in wine with red meat. Therefore, don’t think if you could just “show her” or you could just get the “judge to tell him”, that it will be downhill from there. Nope. You married a narcissist, so don’t for a second think that all the granted motions in the world will humble him.
  4. Not carbo-loading. Here it is, here is your permission to go to a buffet in jeggings. A narcissist plans on his spouse complying with his plan for division of assets and custody arrangement. In the narcissist’s mind, the narcissist will simply prepare the decree and the spouse will sign it. Divorcing a narcissist will not be over and done in a couple of months unless you give him everything he wants including the things he demands at the last minute. Oh yes, to a narcissist, “what’s mine is mine and what’s yours is mine”. Awarding all of the assets to the narcissist is just papering what is already true to a narcissist. Since you can’t make the narcissist understand that your inherited money is actually yours, you will have to set the case for trial and plan on going. It’s like a marathon: it takes a year to prepare for and complete and you are delirious at the finish line (if you make it). The only difference is you have a lot less money now, hate your lawyer (at least a little) and you may have kid issues to deal with. Like the jungle, the tired animals get eaten. So, carbo-load because this is going to take a while, you might as well enjoy it.
  5. Expecting mediation to work. Where a people-pleaser might get worn down by the long hours stuck in a room with a lawyer (gag), a narcissist is just getting started and is appreciating how all the professionals have their day tied up in what she will not agree to. Picture the scone-eating narcissist being asked if she would like creamer or milk in her tea while she contemplates whether or not she can live without his grandmother’s diamond watch. Go to mediation but have a plan and listen to your lawyer.
  6. Self-infliction. A narcissist is the blade a people-pleasure cuts himself with. The people-pleaser mistakes the narcissist’s joy as love. The joy was getting attention, not being with their “person.” The people-pleaser really loves the blade, and misses the blade even when the claws come out in court. Loving your spouse is not a bad thing. Love is an exhibit of our humanness, as beautiful as the body’s ability to heal itself or birth a baby. Deal with the love, loss, rejection and sadness without cutting yourself on the blade. Cut the nerve instead and cooperate with your spouse but don’t inflict new wounds on yourself. You will end up with the wounds and the narcissist will only feel better about herself because you “did it to yourself”.
  7. Be ready for Karpman’s triangle. According to Karpman, the cycle of dysfunctional relationships involves three roles: victim, persecutor and rescuer. Pay very close attention to the role you are playing in the drama cycle so you can learn what it is when the narcissist plays victim or rescuer. If your spouse said you would never see your kids again, get ready for him to play victim of the year when you are awarded primary of the kids. Offer him a compromise and get ready to be the victim when he takes advantage of your kindness.