Lewisville Family Law Blog

Social Studies - A Court's Evaluation

  • 08
  • December
    2014

johndenke_SMALL1.jpgIn cases involving children and disputes over issues like custody and possession, a court can order a variety of pre-trial matters to take place which are aimed at helping the court decide these issues. Some of these matters can take the form of evaluations, classes, or counseling for the parties and the children. Today, I would like to focus on social studies and their role in family law litigation.

When there is a dispute regarding children, the court will likely order a social study to evaluate the best interests of the children by investigating the circumstances of the children, the parents, and relatives or friends, and their relationship with the children. The focus is typically on the home environment of the children, and the court will appoint someone to evaluate this upon proper motion of a party to the lawsuit.download (1).jpg

The social study evaluator can come from difference sources, whether public or private. In cases where the parties have limited financial resources, the court may order that a public entity perform the study such as the court's domestic relations office. If the parties can afford a private evaluator, the court will consider appointing an evaluator who has more extensive education or training and experience, as long as the person is approved by the court.

The purpose of a social study is to compare the parties' parenting abilities, living arrangements, and relationships with the children through interviews with the parties' themselves and any other people who have observed them, such as family members, neighbors, teachers, coaches, and doctors. The social study evaluator will observe each party in session, then the children, and then each party and the children to closely evaluate the relationships between each of them. The aim of the social study is for the evaluator to get a better idea of these relationships and to ultimately make a recommendation on how the court should resolve the dispute between the parties as to things like custody and possession.

As for costs of the social study, the public entities performing the evaluation will usually have a set fee for the evaluations, while each private evaluator will have their own customized fee. The responsibility of paying for the social study is left up to the court hearing the case. Sometimes, the fees are split 50/50, while other times the party requesting the social study is required to pay for it.

Once the social study is completed, the evaluator will render a written evaluation and opinion which will be distributed to the parties' attorneys for review. The social study is typically filed with the court and becomes part of the record for the case, leaving each party free to use it as evidence in a later hearing or trial. The evaluator can be called to testify at these later hearings, and their evaluation and opinion can be questioned at this time.

Social studies serve as a useful tool in family law cases to give guidance to the court as to possible orders to make regarding the children and the parents. While they sometimes can be expensive, they can give the parties and their attorneys insight into the details of the relationship between the parents and the children in the case. The need for a social study in a disputed family law case involving children can be vital to all parties involved to give an independent third party evaluation of the best interests of the children the subject of the litigation.download (2).jpg

Do I need an attorney just to go to mediation ?

  • 04
  • December
    2014

Thumbnail image for ted ogilvie_SMALL.jpgThe simple answer is "No." The smart answer is "Yes." 

I was recently posed this question in the context of a divorced parent required by the Court to attend mediation to try to resolve a modification of the current orders from the Decree. 

To begin with, you can legally represent yourself at mediation just like you can in court, in this scenario. The problem comes with the legal effect your actions will have throughout the process. A mediator's goal is to get‎ the parties to agree, without real consideration of whether the deal for you is a good one or not. Hence, you may agree to a deal that may legally compromise you, without even knowing it. 

At the end of the mediation session you will likely be asked to sign a Mediated Settlement Agreement ("MSA") to memorialize your agreement with the other party. You need to know that a MSA will be binding, setting your agreement in stone. Seeking an attorney after the signing of the MSA may be too late to save your rights or protect you from agreeing to terms against your best interest. I would recommend any party attending mediation to be represented by an attorney.‎

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Withholding Orders - What are they?

  • 02
  • December
    2014

Thumbnail image for johndenke_SMALL1.jpgOften times in family law cases, a parent or spouse is put under an obligation to pay the other party monetary support. This can take the form of either child support or spousal support. The court will typically order that a certain amount be paid each month to one of the parties for a set period of time. The way this money is paid can be facilitated through the use of a withholding order.

A withholding order is a document signed by the judge which designates how money is to be paid to a party from the other party's employer. The withholding order states the amount of money to be paid on a schedule according to the paying party's pay periods. So, it will state how much is to be paid monthly, bi-monthly, bi-weekly, and weekly with specificity so the employer will know the exact amount to remit to the receiving party. It will also say where the payment is to be sent, which is typically the Texas State Disbursement Unit in San Antonio.

The employer is obligated to begin withholding the money for either child support or spousal support on the first pay period after they receive the withholding order. If they receive multiple withholding orders for the same employee, then they are to pay them, but only up to 50% of the employee's disposable earnings. This can happen when the employee has more than one child for who they owe a duty of support to or if they have an ex-spouse to who they owe child support and spousal support. The 50% must be split equally between child support and spousal support in the case of an employee subject to both.Unknown-17wwh.jpg

An employer is required by law to follow a wage withholding order it receives from the court, but may object if done timely. However, noncompliance with a withholding order can make an employer subject to reimbursement for support not paid and possible fines. If an employee changes jobs, the employee is obligated to inform their new employer of the existence of a withholding order. When this doesn't happen, it sometimes makes it necessary for the party owed support to cause the withholding order to be issued to the new employer so they have notice of it. When a withholding order is no longer in effect due to a child turning 18 for example, then the paying parent will need to petition the court for an order terminating the withholding order.

Withholding orders can provide an easy way for parents or spouses to insure that they are paid the support that is owed to them. In addition, it can provide reassurance to a paying party that their obligations are being paid without having to keep track of payments made each month. Both parties will want to have a record of payments going through the State Disbursement Unit so there will be protection if one of the parties tries to say the other party did not pay or did not receive payment. As a parent or spouse involved in family law litigation, you should consult with your attorney about the benefits of having a withholding order issued in your particular case for either child support or spousal support.images-71.jpeg

So, your teenager wants to talk to the Judge . . .

  • 26
  • November
    2014

wfneal_SMALL.jpgIt happens. And, it is happening a lot more than in the past thanks to the 2009 Texas Legislature making the visit between your child and the Judge mandatory on certain issues and advisory on other issues. Assuming this avenue of inquiry has any merit at all in a child custody determination (which I personally don't), then allowing a one to one chat with the Judge is far better than the old practice of getting the teenager to sign an affidavit expressing their "selection" of one parent over the other as to where they will live most of the time. Prior to abolishment in 2009 of the right to file affidavits signed by a child, I have seen an affidavit by a kid picking Mom filed on a Friday and an affidavit picking Father filed on the next Monday after Dad returned the child after his weekend. Ludicrous actions that were occurring all the time in the "selection of parent by affidavit era".images-67.jpeg

The magic age now for your teenager to get this wonderful opportunity to pit parent against parent is 12. Over the years, the Texas Legislature has moved this age all over the dial - from 14 to as low as age 10 at one point! If you haven't figured it out, I don't like this part of our family law practice. It takes our Judges away from what they know how to do and should be doing (apply the facts to the law and make decisions accordingly) and makes them become mental health counselors for 20 minutes. It pits the child against the parents. It increases the costs of the litigation. It effectively authorizes a game of "hide the ball" between the litigants and the Court. And lastly, and the worst part of all, it empowers that child at age 12 to manipulate and gain power/control over both parents - even though one thinks at the time shoving that kid into seeing the Judge and picking them is going to be the panacea for all their custody problems. Nope - you've just created a far bigger teenage monster than the one you would have parented anyway. Set the age of choice for a child at 16 and I am fine. No parent has any consistent and regular control over a 16 year old anyway - so let them decide say whatever they want. Most Judges agree.images-66.jpeg

So, what to do when you learn your sweet child is going to go tell the Judge he or she wants to live primarily with the other parent? Manage it through your lawyer. First, understand the law. Seeing the Judge is mandatory for a child over 12 as to that child's choice of conservatorships or wishes as to which parent has the right to determine the child's primary residence (which parent the child will live with more). Seeing the Judge is only discretionary on the child's wishes as to possession and access or if the child is under age 12.

One sure fire way to stop this strategy cold is to file for a jury. The Judge can't interview any child if a jury has been requested and paid for as to any issue that the jury will decide. This gets complicated but suffice it to say that filing for a jury will stop the interviewing process for all practical effects. However, willy-nilly asking for a jury trial then cancelling that request as final trial approaches has lots of bad karma attached to that strategy. Only make that decision after long talks with your attorney. If you are the one who believes you have the edge with our child as to where that child wants to live, then press for the Judge to talk to the child as early as possible. If you are the one that is going to be "second choice"- then postpone the inevitable as long as possible. Try and make it the last thing the Judge hears in your case. If you haven't been able to convince the Judge you are the one best suited to be the primary parent for your child by that stage of the case, then it really won't matter what your child wants to say. Often, at that point, the Court has already made up its mind and will only talk to the child because it has to - not for any other reason. Third, use the social study process to ameliorate and investigate any negative situations or choices that might be coming from your child. Fourth, if the child is in counseling use the counselor to show that the other parent is influencing the child to make this choice against you. If the child is not in counseling, get him or her into counseling immediately. Fifth, make sure your lawyer asks for a record of the interview. You won't see it until the appeal but you need to eventually know what your kid told that Judge. It will make you a better divorced parent no matter what was said.

Being chosen number "2" by your child is never fun. But it isn't the end of the world in a custody determination. Judges are normally well equipped to see manipulation and deception from the child and the parent pushing for the interview - if it exists. Furthermore, Judges are not going to turn the world the child lives in over to that child at age 12 -18 - even if one of the parents is. The best insurance against a bad ending resulting from the child talking to the Judge is have all the impactful facts of your case that show why you should be the primary parent presented to that Judge before the interview ever occurs. Most of the time a history of good parenting will win over a bribe of a bigger X-Box or less chores - however, all bets are off when the bribe is a new Mustang convertible to a 15 year old about to turn 16. (Only kidding! I think)images-70.jpeg

The Judgment of Solomon is alive and well in Family Law Courts . . .

  • 24
  • November
    2014

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Not exactly the same way it is told in the Old Testament in I Kings - and the Judge is not calling for a sword to cut a child in half - but in modern day terms the result is similar. The concept of letting one parent be the primary parent for one child and the other parent be the primary parent for the other child is often times brought up in settlement discussions - and occasionally trials - in custody litigation. In essence - proposing that the siblings be split between the two parents' homes. There can be logical and psychological reasons for this. A large disparity of ages in the children can cause this idea to be a practical solution. A child is estranged from one parent and the other is not. The parents reside a long distance apart. One parent may reside in a school district that is better suited for developing the talents and skills of one of the children. Or, it can be as plain and simple as splitting the kids will make all the problems the parents are fighting over concerning child support, possession and access, and co-parenting decisions go away.

The problem with this concept is two-fold. First, the law has a statutory presumption that siblings should not be split. Not all presumptions in the law are created "equal" - and this one is certainly one of the step-children of the legal presumptions world. Second, there is sound psychological and real life evidence to back up the presumption. The idea of brothers and sisters having a shared past in spite of the divorce, keeping together during the divorce, and now experiencing a shared future after the divorce is very beneficial for them. Siblings can provide each other with a shared sense of support. The attachment and bonds formed during childhood between siblings lasts a lifetime. Siblings can provide each other with the kind of back-and-forth sharing which helps to build up a sense of identity for them and the shared experiences they have will become part of that identity.custody.jpg

So, what should a Judge (or the parties) do when faced with this predicament? The Judge is going to approve the settlement proposed by the parents unless there is extraordinary facts that make this proposal unworkable. The Courts are not going to set aside a decision that the two most important persons in these children's lives have made. Should the parents then make this decision to split their children? Based on what I have seen in my long career in family law when this has been done - an emphatic NO! Just like the real mother did in Solomon's judgment to save her child, let the other side have the children rather than risk harming their emotional and physical well- being. The situations I have seen where this plan has been instituted by the parents have ended up very sad and the children damaged severely. Maybe the result was caused by the poor parenting of both parties. Maybe it was caused by the genetic psychological makeup of the children. Who knows and there is no such thing in the law as a post-divorce "autopsy" to figure out the cause. In the final analysis - all you have left is either healthy adults thriving in the world - or damaged adults who will struggle all their lives to overcome what happened to them. Splitting brothers and sisters over two households adds to the probability that there will be damage. The short term cost of giving up the fight and letting the children go - even if it costs you child support to pay - is far less than the cost you will pay after the children become adults. The burden will be greater on you while they are growing up to maintain that close relationship while they reside together at your ex's house - but nobody ever said being the better parent came with awards and accolades or was going to be easy. It only comes with the sense of knowing inside you that you put your kids first and did what was truly in their "best interests".Plaque_Castelli_Salomon_Musée_de_Lille_130108.jpg

Legal Strategies That Could Help Bill and Camille Cosby

  • 20
  • November
    2014

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We don't always know when it is going to hit the fan, but it sure seems to be hitting Bill Cosby's fan right now. I suppose it could happen to anyone. But if you're rich and famous, it can hit fast and make a big mess. So, whether you have engaged in inappropriate behavior or not, for many it's simply best to be prepared with a well thought-out plan to protect those around you.cosby1.jpg

Here are a couple of strategies (in Texas, anyway) to consider if you fear that someday somebody will make a run at your sizeable estate:

1. Make your estate scarce by creating a fictitious entity, such as a Family Limited Partnership or Family Trust Agreement. By creating this "alter" entity, you legally remove assets from your own name and title them into the fictitious entity. Now, don't let the term "fictitious" alarm you or make you think this move is improper or illegal. It's not-and I would imagine that Dr. Cosby has something like this set up for him and his family. When you create one of these entities, all assets of the marital estate are placed into the ownership of the entity. In other words, when you buy a car, a house, a diamond necklace, or whatever fine item that makes you happy, it is bought and titled into the name of the entity. Theoretically, you could essentially have nothing titled in your own name, and everything you own (or not own) titled in the name of the entity.

2. Have a Pre- or Post-Nuptial Agreement that favors your spouse with the assets of the marital estate. A Pre- or Post-Nuptial Agreement allows you to pass or transfer the character of the assets of the marital estate to become separate property of the other spouse. Of course, you will need to have a lot of trust in your spouse to defer possible control over your assets. And in the event you get a divorce, you might already have given your spouse all of your assets, leaving the marital estate with very little to divide between the husband and wife and you with no separate property of your own. I wonder if Mrs. Cosby is feeling this love right about now. . . .

These are only two ways (out of many) to consider protecting your assets, and every couple has its unique set of circumstances. If you are a target, then seek out a lawyer who can help you create a customized plan to give you that buffer from a potentially litigious public. If you wait too late, then . . . well, you'll be too late. This philosophy also applies if you're trying to (legally) avoid estate taxes upon your death.

I hope Bill Cosby is innocent, on a personal note. The Cosby Show from the 1980s still brings back great memories for me, as well as watching Fat Albert on Saturday mornings in the late 1970s. But you've got to feel for his wife and daughters who have to go through this as well.cos2.jpg

Standard Possession and Expanded Standard Possession - The Difference

  • 19
  • November
    2014

Thumbnail image for johndenke_SMALL1.jpgParents of children will often request the standard possession schedule for visitation with their children when putting orders in place concerning them. The typical understanding of standard possession that parents have is from Friday at 6:00 p.m. to Sunday at 6:00 p.m. on the first, third, and fifth weekends of the month in addition to 6:00 p.m. to 8:00 p.m. on Thursday. However, there is an alternate visitation schedule which follows the standard schedule but gives more time to the visiting parent.

Most parents I have consulted with over the years are not aware of the expanded possession schedule. The schedule essentially provides for earlier pickups and later drop-offs of the children to allow for extra time for the visiting parent. It is usually at the election of the visiting parent to elect this schedule, but it also has to be in the best interests of the children for the court to order it.

Under the expanded standard possession schedule, visitation on Friday begins at the time school is dismissed, not 6:00 p.m. Also, weekend visitation ends at the time school resumes on Monday after the weekend, not Sunday at 6:00 p.m. This can allow for not only more time with the children, but an ease to the transfer of possession between parents whereby the parents are picking up and returning the children to school rather than to each other's residences.

Another variation of the expanded standard possession schedule is the Thursday overnight. So, instead of having Thursday from 6:00 p.m. to 8:00 p.m., a parent's visitation would be from Thursday after school is dismissed until Friday when school resumes. This essentially gives a parent an extra day with the children on their designated weekends when they would pick up on Thursday after school, drop off Friday when school begins, and then pick up when school is dismissed on that Friday for their weekend.

Not all parents can exercise the expanded standard visitation schedule, so it is important to review the nuances of it with your attorney before agreeing to it or asking for it to be granted by the court. Typically, if a parent has been involved with the children and will be living within a close distance of the children and the parent with primary conservatorship, the court will likely grant the expanded schedule upon election so long as it can be shown that it is in the best interests of the children.

Pets and Divorce-Who Gets the Dog? (Part Two)

  • 17
  • November
    2014

Thumbnail image for jimsmall.jpgIn my last blog, I discussed how pets are dealt with in divorce. In this blog, I will discuss how the law deals with pets and their "rights".

Companion animals are increasingly being afforded protection under the law. In 2011, because pets were becoming targets in domestic violence cases, The Texas Legislature amended the law to prohibit a person named in a protective order to take possession of an animal. Further, in 2013, the Texas Penal Code was amended to specify what the possession of a pet, assistance animal, or companion animal means.pets-16.jpg

Also in 2013, the Amended "Dallas County Standing Order Regarding Children, Pets, Property, and Conduct of the Parties" includes the following provision:

"PROTECTION OF FAMILY PETS OR COMPANION ANIMALS. Both parties are ORDERED to refrain from harming, threatening, interfering with the care, custody, or control of a pet or companion animal, that is protected by this order or by a member of the family or household of a person protected by this order".

Unfortunately, pets have become targets in domestic violence cases. These laws and orders mean that a person subject to a protective order that harms a pet can go to jail.

Furthering the move toward animals having "rights" under the law instead of just being personal property, in August of this year the Oregon Supreme Court in "State v. Nix" the court held that animals -- namely, 20 goats and horses, found starving among the bodies of others that hadn't made it, on the defendant Arnold Nix's farm -- can each be considered individual "victims" under the law.

Although the court acknowledged the current legal status of animals as property, it recognized that individual animals have legal interests that are incompatible with being classified as property. Hopefully, other courts and lawmakers will also recognize these interests.

Companion animals are finally gaining some rights, thanks in large part to the Animal Defense Fund. Please do right by your pets.

I will end this blog with one of my favorite quotes. It is from President Woodrow Wilson. I have it on a picture in my office. It reads:

"If a dog will not come to you after having looked you in the face, you should go home and examine your conscience".images-65.jpeg

Grandparents' Rights - Can I file?

  • 11
  • November
    2014

johndenke_SMALL1.jpgSometimes in child custody matters, the grandparents of a child may seek to have rights established to the child either in place of the parents or to supplement the parents' time with the child. In these cases, the grandparents of the child will likely need to consider filing suit for conservatorship or possession and access of the child. The rules behind whether a grandparent can file for these types of relief can be rigid and burdensome.

In order for a grandparent to file suit for conservatorship of their grandchild, they must first satisfy the standing requirements of the Texas Family Code. Standing is essentially the right to bring suit for conservatorship of a child. The general standing provided under the family code does not give standing to grandparents specifically, but rather gives alternate ways in which they might achieve it.

One way is if the grandparent has had actual care, control and possession of the child for at least six months ending not less than 90 days before suit was filed. Another way is if the child's parents are deceased and the grandparent is filing for custody. If a grandparent cannot satisfy these requirements, there is additional standing for grandparents laid out further in the family code.

A grandparent can file suit for custody if there is proof that giving them custody is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development. In addition, a grandparent can intervene in a pending custody suit involving the child if there has been substantial past contact between them and the child and giving the parents custody would significantly impair the child's health or emotional development. These can be difficult burdens to overcome, and are very fact intensive based on the circumstances of a particular case.

Even if a grandparent cannot seek custody under these prior mentioned statutes, they might still be able to seek possession or access to the child. To seek possession or access to a grandchild, a grandparent must show denial of possession or access to the child would significantly impair the child's health and well-being. They would also need to show that they are a parent of a parent of the child who has been incarcerated for three months preceding filing, is incompetent, is deceased, or does not have court ordered possession or access to the child.

As can be seen from above, the burdens put upon grandparents to be able to come into court and ask for custody or possession of their grandchild can be difficult to overcome. The family code has attempted to give some rights to grandparents when it comes to their grandchildren, but it must be remembered that the courts typically see the appointment of the child's parents to be in the best interests of the child. This makes it particularly cumbersome for a grandparent to overcome this burden when asking for custody or possession of their grandchild.Thumbnail image for gp2righrts.jpg

How do I Change Lawyers If I Already Have One?

  • 10
  • November
    2014

ted ogilvie_SMALL.jpgChoosing the right lawyer is a hard process to begin with, but if you need to make a change, here are a few steps to take to hopefully ease the transition.

First, I would recommend asking for a brief, face to face meeting‎ with your current lawyer. I think most lawyers will usually schedule a short conference, often at no charge, if our client is in such distress or if the representation isn't meeting their expectations. Don't be afraid to just come right out and tell your lawyer your concerns. It could be your lawyer isn't aware of your feelings; it could be she doesn't care about your feelings; or it could be she feels the same way about the situation.

Next, ask your current lawyer for a referral. It could be that she still wants your case to succeed, so she may give an excellent referral to a practitioner perfectly suited for you and your case. Certainly the advice should help point you in the right direction.searchatt.jpg

On the other hand, her response may be cold and fruitless. This will likely clue you in that the transition may be more difficult than you thought it might be. This bugs me when lawyers do not try to lessen the stressful load as much as possible during the case. Clients rely on their lawyers to walk them through the procedures and open doors for clients as the relationship unfolds. If the current lawyer has already checked out, you've certainly validated the need to make the change-and fast! If you still need a referral, then I would recommend you reading a previous post on this Blog by William F. Neal, titled Five questions to ponder when trying to find the RIGHT lawyer to hire for a Family Law Matter.

After that, ask your current lawyer to compile your file into an electronic file. It shouldn't be that difficult, in today's glorious info-tech age, to put your entire file onto a disc or flash drive in a just a couple of days. This will allow you to easily transport all your documents to your new lawyer.

After you have your file, ask for a refund‎, if any funds are left in retainer. By the way, your attorney in Texas cannot hold your file for payment of your bill. I've seen this happen before, but your right to your file is well-settled.

‎As you interview for a new lawyer, be honest about your previous experience. Remember, your goal is not to have to change again. So discuss with your potential counsel the things that bugged you about your last lawyer. Again, I would refer you to Neal's post Five questions to ponder when trying to find the RIGHT lawyer to hire for a Family Law Matter.

Lastly, I would encourage you to act quickly during this process so that deadlines and traction aren't lost because of your delay. Be diligent in your search and hiring of your new lawyer. And good luck!googsearchatt.jpg