Lewisville Family Law Blog

NOT YOUR ORDINARY PTA MOM: BUILDING A CUSTODY BATTLE ADVANTAGE

  • 29
  • August
    2014

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Sometimes just being an ordinary, sit-on-the-sideline, watching-what-happens type of parent doesn't cut it when your kids are at stake in a custody battle. My colleagues and I entertain the question almost every day from parents seeking to "win" rights and/or time with their kids. These are parents who usually are decent, law-abiding, and well-tempered clients who want to be more involved in their children's lives. They have good intentions and aspirations of being elite parents.

I find it admirable when parents step up their game to be better parents for their kids. Unfortunately, many of the parents we see in Court, either seeking to maintain their current rights or trying to increase their possession and access with their children, do not have a clue what that looks like.

Here's an example. Dad has always been around for his children while exercising his 1st, 3rd, and 5th weekends under the standard possession order. He now wants to develop a better and deeper relationship with them. So he hires an attorney to file a modification asking the Court to give him an expanded standard possession order with overnights for Thursday and Sunday nights. After all he is entitled to be a better dad, right?

Regrettably, he shows up to the temporary orders hearing and gets stumped on several questions that he did not anticipate. Opposing counsel asks, "Sir, please tell the Court the names of your kids' current teachers." Dad states that he doesn't know. "What's their pediatrician's name?" asks the lawyer. Dad once again says, "Uhhh, I don't know."

Opposing counsel continues, "Well, then, can you tell the Court any of their teachers from last year?" Dad just looks perplexed and states, "I used to know them. . . ."

"What about your daughter's dance teacher?" the lawyer asks, now with exasperation and disdain in his delivery of the question. "Uhmmm, I'm not quite sure," Dad finally gets out. Do you see where I'm going with this? That's right-Dad is a typical sit-on-the-sideline, watching-what-happens type of parent who fails at his expensive quest to have more time with his kids. He may genuinely want more time with his kids, but what has he done to show the Court he really wants it?

Here's what I would challenge every parent to do, whether you seek a change in custody or possession, or you just want to get in the game and stop sitting on the sideline: JOIN YOUR KIDS' SCHOOL PTA AND VOLUNTEER TO HELP WITH THEIR ACTIVITIES!pta-meeting-parents-e1316549376678.jpg

What's that you say? Ridiculous? Absurd? Preposterous? Well the fact is, I AM NOT YOUR ORDINARY PTA MOM! But I am my kids' school PTA President! You read that right, and it is the truth. I am the President of the W.S. Ryan Wrangler PTA. Admittedly, I am not in a custody battle or seeking additional court-ordered time with my children. But if I was, I could tell you the name of every teacher my kids have had since they started school. I could even tell you the name of their friends' teachers over the past few years.

Of course, you're too busy with work and other things, is that right? Nonsense! You have the time to get to know the teachers of your children. You have the time to volunteer to help out with a fall festival or bake sale. I am a PTA Dad, and I'm proud of it! Yes, it takes more time. And yes, it is sometimes a pain in the neck. But I guarantee you, if you want to make a better showing about how you're involved in your little one's life, get involved at the school level. Then, when you're asked those pesky questions, like "Who is the principal at your kids' school?" You'll know.

And maybe you'll get that extra time with your kids after all.

FIVE THINGS YOU MIGHT NOT KNOW ABOUT THE PARALEGAL WORKING YOUR DIVORCE CASE

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  • August
    2014

Thumbnail image for CT0R4007.jpg1.  We can't give legal advice- Since we are usually the first ones that clients speak to when they call the office, we are continually asked what they should do in certain situations. A paralegal with many years of experience will probably know the answer, but we cannot legally give the client advice on what to do.  We will always have to go to the attorney and get his advice or opinion and relay that message back to the client or have the client speak directly with the attorney. That is why the attorney has the license and we don't.

2. We lose sleep- We really do care and sometimes leaving "it" at work is not possible. When you have cases that are high conflict and last for a long time, we build relationships with our clients whether we mean to or not.  This is especially true in family law cases where children are involved. Some of us in this business can relate well because we have similar situations that have happened in our own personal lipara3.jpgves. 

3. Paralegals can and do draft most of the initial legal documents on your case.   We just can't sign them. Most attorneys will have the paralegals draft the majority of the initial paperwork then the attorneys read over those drafts and make any necessary changes. This also keeps the cost down for the clients.

4. Networking/maintaining relationships -    A paralegal is on the front lines which makes it is very important for us to network and maintain relationships. It is necessary for us to have and maintain excellent rapport with court staff, experts such as counselors and psychologists, and other professionals such as process servers and private investigators.   Without all of these individuals we could not do our jobs and because of these relationships we serve the client better.

5. Notary-  Most, if not all, paralegals, are notaries. Paralegals are routinely asked to notarize documents by attorneys and by clients. If you ever need to get an important document notarized on short notice, your paralegal can provide this service.
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The Attorney General's Role in Child Support

  • 25
  • August
    2014

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When child support is an issue between separated parents, as it often is, one or both parents might apply to the Office of the Attorney General for services. In addition, if the State of Texas is providing public benefits to a parent of the child, the Attorney General may either file their own action for child support or intervene in a pending case between the parents.

It is important to remember that the Attorney General only represents the State of Texas in a suit involving a child. This means that they will generally not take a position on items such as custody or visitation that may be in dispute in between the parties. Their sole interest is to make sure that the child is being financially supported by the parents.childsup2.jpg

In certain counties, the Attorney General has their own courts of jurisdiction where suits that they file are heard. Essentially, these are associate courts that hear many cases in a particular day having to do with child support, retroactive child support, health insurance, and unreimbursed medical expenses for example. The decisions handed down by these courts are final, but appealable to the District Court in which the case was originally assigned.

A litigant must proceed with caution when the Attorney General is involved, as they might seek to pursue certain remedies against them for things such as non-payment of child support. These remedies might include an order of contempt containing a judgment for back due child support, suspension of a license, or, more importantly, jail time. If you have a case involving the Attorney General, it is in your interests to talk to an attorney to assess the case, build a strategy, and assert any defenses you may have to the establishment or enforcement of child support against you.

"A Goal without a Plan is a Wish!"

  • 20
  • August
    2014

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Do you know where you're headed in your Family Law Case?

Thumbnail image for Thumbnail image for Thumbnail image for wfneal_SMALL.jpgYou have probably heard this before. It makes so much sense. It has been used by everyone from Dale Carnegie in the 80's in their motivational classes to Herm Edwards, Football Coach and Analyst, to describe what you have to do to get to a SuperBowl. However hackneyed it might be, the point it makes is right on point in every endeavor that is taken by a human being - including success in your Family Law Case. Do you and your lawyer have a plan to get what you want out of your family law case?

You are never going to come out ahead on the other side of a divorce or custody fight unless you have a plan. Going through the motions of meeting with your lawyer, providing all the information needed, and attending Court hearings will not get you more time with your children or the asset division you need to survive post-divorce unless there is a well thought out plan in place. This planning should start in the first consultation or meeting you have with your lawyer. The attorney should dig out the goal issues important to you and then give you realistic feedback on whether those desired results are going to be achievable. Chasing a dream that the facts in your case won't support is only going to cost you money you shouldn't have to spend and make you feel very used, angry and despondent when the case is finished.

The plan in a family law case - be it divorce or modification - must take into consideration the facts, the law, the Judge, your spouse or ex, opposing counsel, and budget. Your lawyer should sift through each of the factors and then give you different options for a plan that can be to reach your goal. The final decision should be yours as to what road you should take and, once selected, should be written down for both of you to follow. You should have clear direction on what is needed from you and what the time constraints are to be on the initial plan.

The Plan you choose should be centered around a "theme of the case". Every family law case has a "theme". The "theme" is the anchor around which each step of the Plan is designed. It is the core principle of the case that determines the evidence that must be located and used, the presentation in court or mediation, and how you justify your position in the case.

Like all Plans, it more than likely will have to be modified and changed as the case proceeds. The actions of the other side, unforeseen events that always occur during the case, and budget constraints will lead to modifying the original Plan. When that happens, you and your attorney should jointly decide on what changes need to be made. The revised Plan again needs to be memorialized so you and your attorney know what steps need to be now taken on the amended Plan.

If this procedure is followed throughout the duration of your case, you will always know where you are in achieving your case goals and, more importantly, allows you know where you are in the process. In a field where budgeting for the costs of the project is often difficult to accomplish, implementing a written plan for the case provides some accountability and responsibility for the end result.

The Plan for your case should be a joint collaboration between you and your lawyer. Each of you should be 100% committed to the Plan you finally decide to use. The Plan should be a simple as possible. The Plan should be flexible enough to change when needed. And finally, you should always know the Plan. Blind adherence to the process and assurances from your attorney that "everything is under control" without being fully informed of how that process is being used to achieve your goals is nothing more than a "wish".images-28.jpeg

Those Were Happy Days, Mork!

  • 19
  • August
    2014

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I, too, am saddened by the tragic outcome of what seems to be a depression-caused suicide of the best alien I've ever gotten to know. Robin Williams bounced onto the T.V. scene playing Mork from Ork in the series "Happy Days" in the mid 1970s. You see, "Happy Days" was MY happy days! And Mork took the Fonz, Richie, and the gang into a whole new dimension for me as a kid growing up in the seventies. Indeed, I loved "Happy Days" and had the "Ayyyy" t-shirt with Fonzie and his thumbs up to prove it!mork2.jpg

Time writer Jamie Poniewozik published a great little snippet on Robin Williams that includes Mork on the cover of Time Magazine in 1978. It's worth a look at [http://time.com/3102128/robin-williams-dead-mork-remembrance/] to remember even more about "those happy days."

I miss those days, and apparently Robin did, too. Unfortunately Robin was one of the nearly 15 million American adults affected by a darkness that I am fortunate not to battle everyday. But I have many friends and colleagues who live in those dark shadows most days out of the year, out of the month, out of the week. Depression is a disease that is so pervasive, yet so taboo. We don't dare stand around the water cooler at work revealing what really makes us tick. Why bring everybody else down?

So since I've already brought up a taboo subject, how does depression relate to marriage? Consider the common and direct affects on those with depression:

Job problems or job loss

Financial losses or falling behind on critical payments (i.e., house, cars, utilities, etc.)

Physical appearance shows declining attention and value of self-worth

Communication with others is deteriorated, and possibly non-existent

Feeling of despair/no way out

Weight gain/loss

Attitude shows a lack of caring about others

Withdrawn from social activities

Wait a minute! Each of those is a common complaint I hear about the other spouse when meeting with a new divorce client. My psychologist and family therapist colleagues who are members with me in the Denton County Collaborative Professionals Association [www.dentoncountycollaborativeprofessionals.com] seem to agree that there is an uncanny similarity between depression and divorce signs. Depression just seems to collide with family relationships to a point where the spouses simply cannot function together any longer. Either the depressed spouse has simply shut down, or the other spouse has blown a gasket trying to compensate for the dissonance. A strained marriage, whether or not depression plays a role in the breakup, exhibits similar signs, such as job loss and missed house payments, weight gain and sloppy appearance, feeling trapped with no way out, estranged friends, and shutting down communication with the other spouse (at least good communication, anyway-the venom is usually exposed at that point).

But my therapist friends would love to see couples before the signs become obvious and permanently damaging. I would like to see couples with qualified mental health professionals instead of in my office, as well. You may scoff, but I really would like to see marriages saved rather than destroyed. I find most family lawyers feel the same. I see the results of the divorce day in and day out. The use of the term "damage" is warranted and appropriate here.depressionprofessional.jpg

I understand that Robin Williams had been diagnosed with clinical depression for quite some time. Yet he still couldn't take it, and he checked out early. Some marriages are like that, too. No matter how hard both parties try, the couple simply won't make it either. But that doesn't mean we quit trying to make things better. Even during the divorce process, it'll help both spouses to come out stronger and able to deal with creating long term solutions. I wish Robin would have kept on, instead of the early checkout. I'll miss him!

My base point here is simple-others around you care about you and really prefer having you around in a healthy state. Don't be afraid to ask for help, no matter what stage of the turmoil you're in. Plan on being there for those that count on you, even if you have to get help along the way. We are not infallible, and we all have weaknesses. But we have family depending on us and expecting us to be there.

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Nanu, Nanu!

Texas wins child support recognition

  • 18
  • August
    2014

The National Child Support Enforcement Team, known as NCSEA, has announced that the Texas Child Support Division has the best child support collection program in the United States. The program came in first for collections, cost effectiveness and amount of collections per full-time employee.

The Child Support Division, under the supervision of Texas Attorney General Greg Abbot, has collected over $3.6 billion in support for the fiscal year 2013. This is not the first time this program has received national recognition. Over the past seven years, the program collected more than any other state. In fact, collections between 2012 and 2013 increased by $226 million and accounted for a large increase in overall national collections.

You Are Ordered to Mediation-What Next?

  • 18
  • August
    2014

Thumbnail image for ljasmall.jpgThe first decision you and your attorney should make is to decide on a mediator.  Your mediator should be someone who is familiar with the Judges in the county where your case is pending, the Court you are in, and your Judge's certain proclivities.  No mediator can predict what a particular Judge will do, but a mediator who has practiced before that particular Judge may be able to share their experiences in facts similar to your case that they know the Judge has ruled on before.

In divorce cases, it is very important to the mediator to (before mediation) receive all of the pleadings that have been filed in the case, including any inventories and appraisements, temporary orders, and initial pleadings filed by the parties.  It is also important (prior to mediation) for your attorney to provide your position statement (what you want) to the mediator prior to mediation at least early enough for the mediator to review it.  As a mediator, I appreciate having this information one to two days before mediation. I actually read everything! That allows the mediator to review the information and thus possibly reduce the time you are in mediation.  In divorce cases, it allows the mediator to create a spreadsheet as to the community property to be divided, thus giving the mediator a "heads up" as to what the property issues are.  The position statement also allows the mediator to know what custody issues, if any, are going to be at issue.

Itimages-22.jpeg is also very important to speak with your attorney about your mediation, and how the process works.  My next blog with address what your day is going to be like in mediation! Can't say it is easy, but most cases settle in mediation, so you will get through it!

Top Ten Rules For Cellphones in Custody or Divorce Litigation

  • 15
  • August
    2014

wfneal_SMALL.jpgAccording to research conducted by the Pew Institute, as of January 2014 the number of American adults owning cellphones is 90%. (http://www.pewinternet.org/fact-sheets/mobile-technology-fact-sheet). A new study from Common Sense Media reveals that the percentage of U.S. children who've used a mobile device has jumped to 89 percent of all children in 2013 - up from just 38 percent in 2011. (https://www.commonsensemedia.org/research/zero-to-eight-childrens-media-use-in-america-2013 ) It is now routine practice to have multiple text messages, audio recordings, videos, and testimony about cellphones in hearings and trials involving divorce and child custody. The iphone, Android, or BlackBerry that is carried around daily and you can't live without can become a weapon of destruction to your success in a courtroom. Here are my Top Ten Rules to make sure that doesn't happen in your casekidcell1.jpg.

1. Don't hit send on that nasty text to your estranged spouse or ex immediately. Let it simmer and think about how it would sound being read out loud in a silent courtroom on some Monday morning. Rethink what you are texting before you send it. Do you really need to point out again how stupid and ignorant you think they are?

2. Don't buy your child a cellphone until that child is mature enough to handle it and you have an agreement with your estranged spouse or ex about its use while out of your possession. Courts really aren't equipped to manage the use of cellphones between warring parents by the implementation of Orders. If you and the child's other parent can't agree on the rules of use between households - let the child use your phone or a landline for communication with their Dad or Mom. It is far less expensive than the alternative of letting a Court or Judge referee the dispute - and Court's don't like doing it.

3. Don't take pictures on your cellphone of every bruise or scrape your child comes home with after being with the other parent. If there is a serious injury - go to the ER and get it documented there.

4. Don't talk to that "new companion" of yours on your cellphone. Every call or text is logged with the number that was called and the time it was made. Cellphone records are easy to obtain. Twenty five calls between 9 pm and 2 am to a "co-worker" suggests something other than you are putting the final touches on that project report.

5. Don't think that deleting that text or picture removes it from your cellphone. It doesn't! The look of horror on a litigant's face when their cellphone is confiscated and handed to an expert for examination is priceless - or devastating - depending on who's phone is being taken.

6. Don't delete - but preserve - abusive texts, pictures, or recorded calls from your spouse or ex. While cellphone records are easy to get, servicers don't save text messages on their servers - you have to protect those types of important information.

7. Don't tamper with your child's cellphone when it suddenly appears at your house after coming home from the other parent. Removing the battery, "accidently" letting it fall into the bath, or taking it away for disciplinary reasons will only assure that this action will become the focus of an expensive court "inquiry". Let your lawyer handle this.

8. Don't put your child in the middle of any cellphone controversy. Don't pass your message about the rules in your house as to cellphone use through your child. Get that straight parent-to-parent with your estranged spouse or ex directly - or do it through your lawyer.

9. Don't buy a full-fledged smart phone for your child. There are a number of phones and plans that limit how and what your child can do with their cellphone. If the goal is communication with your child when out of your possession - then find a cellphone and plan that will accomplish only that goal. Do they really need access to the internet with a cellphone that they have all day - even when you are not around?

10.Don't make your child talk to the other parent on their cellphone in front of you - or worse - make them turn on the speakerphone. If you've allowed the cellphone into your house, then your children deserve privacykidcell2.jpg.

Mediation-What Is It?

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  • August
    2014

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This is going to be my first blog in a series about the mediation process from start to finish. So what is mediation anyway?

Simply put, mediation is a process in which a neutral third person (the mediator) helps the parties who are in litigation reach a settlement of the issues in their particular case. These may include property division, child related issues (child support, custody and visitation), and in some cases, spousal support. A mediator does not act as a judge-he or she simply assists the parties in reaching an agreement.

Increasingly, mediation is being required by many Courts prior to trial, and statistics show that it is highly effective in settling cases. Mediation has a structure and dynamics that ordinary negotiation methods lack. The process is confidential-meaning the mediator cannot be compelled to testify at trial as to anything that is said or any offers that are made during the process.mediationgood.jpg

There are many benefits to mediation as opposed to litigation. The first is that mediation increases the "control" parties have over how their case is resolved. There is no way to predict how a judge or jury will resolve the case. Mediation is more likely to result in agreement that the parties can live with.

There is also the cost benefit to mediation. Even though parties have to pay the mediator (and their attorneys), it is far cheaper than continuing protracted litigation through the court system, possibly taking months (or even years in some cases), causing more fees and no closure.

In my next blog, I will address how to prepare for mediation and what to expect in mediation.

Temporary Spousal Support

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  • August
    2014

Thumbnail image for johndenke_SMALL1.jpgOftentimes, a client will come to me in need of financial support from their spouse when initiating a divorce proceeding. This will usually happen in the context of when a client's spouse makes significantly more money than they do.

Each spouse has a duty to support the other spouse during a marriage. Essentially, this implies a duty of financial support to a spouse who may not have the necessary funds to pay their expenses each month. A shortfall can also happen when a spouse is not in control of sufficient community assets to pay their monthly expenses. This lack in ability of a spouse to pay their expenses can be shown through the use of an income and expense worksheet which lists the income a spouse receives and the expenses they have for a given month.images-15.jpeg

Showing that a spouse has expenses which exceed income is only one part of the proof needed to receive temporary support. It must also be shown that the spouse who is to pay spousal support can afford to make payments to the other spouse and, at the same time, provide for themselves. The court will not make an order of temporary support when to do so would make the paying spouse destitute. This is why the proposed paying spouse should prepare their own income and expense worksheet to give the court an accurate picture of both of the spouses' financial situation.

A client needs to keep in mind that temporary spousal support is different from final spousal support, in that final spousal support demands additional findings and requirements to be entitled to it. However, even though a spouse may not receive final spousal support, they might still be able to establish enough evidence to receive temporary support while their divorce case is pending.images-16.jpeg