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.

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.

Co-Parenting Tips for the Holidays – It’s the Golden Rule, Duh.

By | Co-Parenting, Custody and Conservatorship, Divorce

Christianity: So in everything, do to others what you would have them do to you, for this sums up the Law and the Prophets. Matthew 7:12.

Buddhism: Hurt not others in ways that you yourself would find hurtful. Udana-Varga 5,1

Judaism: What is hateful to you, do not do to your fellowman. This is the entire Law; all the rest is commentary. Talmud, Shabbat 3id

1. Say yes and keep saying yes. “Can I bring him back late?” “Will you pack her Christmas dress?” “Can I trade days?” Say yes every time. Always know what your decree or other order requires but then always say yes. Don’t say, “yes if you will do x, y, z.” You can’t make someone else be kind. You can only make sure you are kind. Look for these opportunities because your kids are watching and will notice. Just say yes. Maybe smile a little too.

2. Buy the other parent a gift from your child. This is such a cheap and easy way to show the other parent you acknowledge and support the relationship between your child and his or her mother or father. If you want halos or you are an overachiever, also buy your co-parent’s significant other a present. Think Julia Roberts in Step Mom.

3. Follow your child’s lead on Christmas/Hanukkah. If your child wants mom to come to lunch but its not her day, invite her! If your son wants to see what his father got in his stocking, drive him by his dad’s house.

4. Include other half and step siblings in all traditions. Every child wants to be equal to their siblings and every child wants love from the mother and father, grandmother and grandfather figures in the homes they live in. All traditions should be evenly shared among the children. Tell your parents to bring a gift for your step son and to make sure if there is a family day planned to see Santa, that it’s scheduled around your step child’s visitation day. The only qualifier should be that the child is a child, not that the child belongs to so and so or doesn’t belong to so and so. Remember that halves and steps are terms and types of relationships children learn. Try to teach them that “halves” and “steps” are like “bonus” and “cool”.

5. Take a family photo. Not photo of your family. Take a photo of your child’s family. Who are important to him? Who is his mimi, her sisi, his mommy, her other mommy, his big brother…? Let that picture be his family photo he shares at school. Show him his family tree and how many people he belongs to. You have plenty of photos of your family, but does your child have one photo of everyone in HER family?

“Mom, I want to live with Dad”- A Mother’s Problem

By | Co-Parenting, Custody and Conservatorship, Divorce

“Does my child get to pick who she wants to live with when she is 12?” I get that a lot. The answer is “yes and no.” I know, I’m a big help.

The Texas Family Code allows a child to be interviewed by the judge in chambers so that he or she can express her wishes, but that does not mean he or she is the decider.

This is a mother’s problem. Fathers don’t worry about this near as much as mothers do. Mothers feel that when their children “live” with dad, that the world must think they are a terrible mother. Think about it. People wonder, “How did she lose her children?” or “what did she do?” If a mother “loses custody,” then she must have been arrested or getting treatment. When a child decides that they would prefer to live primarily with dad, mom does not lose custody. She actually practically gets the same amount of non-school time, weekends, and a long period in the summer.

At the risk of losing my reader’s attention, here is the specific statute allowing a child to be interviewed.

Texas Family Code § 153.009.

(a) In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child, the court shall interview in chambers a child 12 years of age or older and may interview in chambers 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. The court may also interview child in chambers on the court’s own motion for a purpose specified by this subsection.

(b) In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child or on the court’s own motion, the court may interview the child in chambers to determine the child’s wishes as to possession, access, or any other issue in the suit affecting the parent-child relationship.

(c) Interviewing a child does not diminish the discretion of the court in determining the best interests of the child.

(d) (f) (omitted by author to save attention spans)

If you haven’t stopped paying attention or gone to another article, hopefully I can get you back.

Since everyone knows children need meaningful relationships with both parents, let’s not make this a statement on motherhood. Be informed that when a child wants to “live” with dad, it means he or she wants to be with him more. Since when is it a bad thing for children to want to be with a parent? Sometimes children need one parent more than the other during certain times of their lives. If you and your spouse get along, then most likely your child will never have to be interviewed by the judge. If you can agree that the child should spend more time with the other parent, then crisis is averted.

Yes, if a Court determines that the child should live with the other parent, it could have child support implications. But, if your reason to fight your child’s wishes to live with the other parent is because of child support, you need to re-consider the fight.

Obviously, there are other fact patters worthy of the fight. Let’s say the child gets away with smoking pot or cutting school when he or she is with dad. I’m sure the child will tell the Court all about why dad is better, but fighting that makes sense.

In conclusion, a court must interview a child who is 12 years old or other to hear who they would select as the parent with the right to determine the primary residence and may interview a child to hear their take on possession and access or other issues, but it does not mean that the judge will turn around and order who or what the child selected. It does not mean that the child is in charge. Conservatorship, visitation, parental rights and obligations depend on the best interest of the child. The best interest of the child depend upon countless factors, one of which is the child’s wishes.

It’s important, as a mother, to know the difference between your child genuinely needing their father and a situation where your child wants to go clubbing with dad. Be kind to the mothers who are emotionally evolved and can support their child in wanting to be with dad more. Even if he lives with a homewrecker and her evil children.