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.

Anxiety & Fear – Marcy Freeman, a Family Law Attorney, Teaches us How to Process Both in the Wake of COVID-19

By | Unsolicited Opinions

As I write this blog, fear is the prevailing emotion of our country, and most everyone I know is experiencing anxiety.   We are being bombarded with bad news about our health and our economy.   How are we supposed to live in these times of uncertainty, where are we going to buy toilet paper, what is going to happen to my retirement account?  BUT – if we take a minute to really think about our fear and anxiety rationally, we can move forward and feel a lot better.

Fear and anxiety are different.    According to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) “Fear is the emotional response to real or perceived imminent threat, whereas anxiety is anticipation of future threat.”

We should remember fear is an emotion which alerts us to a “a real or perceived danger.”  Our fight, flight, or freeze response evolved as a survival mechanism and is an instantaneous physiological reaction in response to a perceived harmful event, attack, or threat to survival.  Throughout history, fear has helped us to avoid danger and to stay alive.    So, some fear is good because it protects us while irrational fear is not good.   How do we determine whether fear is good or bad?

I say we stare fear in the face so that we can get a good look at it and assess the “perceived danger.” Our evaluation of the perceived danger educates us about that danger – is it real, how close is it, etc…      After I know the danger, I can make a plan and move forward.

Anxiety is an insidious little creature because it feeds on itself.  Anxiety is the result of the way that I deal with my fears about the future.   In my head, I create and replay “stories” about what might happen in the future in an attempt to make sense of things and to control what might happen.   The truth is that my stories don’t solve my problems because the stories are based upon something that may or may not happen in the future.   When I repeatedly replay the story, the story becomes a never ending loop of anxiety.

How can I stop the loop?   Fortunately, I can change my thought processes.  According to studies, meditation (an ancient practice which brings us back to the present moment) can help with feelings of anxiety, anger, and depression and can even change your brain! https://www.forbes.com/sites/alicegwalton/2015/02/09/7-ways-meditation-can-actually-change-the-brain/#50d655aa1465

The present moment is what life is all about.    I can only control what is happening right now.     If I am busy thinking about the future (or the past) I am going to miss what is happening right now – a beautiful smile, the sunset, a fragrant smell.    I am going to miss my life.   I am not going to allow Covid 19 prevent me from living in the present moment.   Life is too short!