Lewisville Family Law Blog

Your Case is Final and the Court Ordered Child Support, What Happens Next?

  • 29
  • January

paralegals2.jpgYour Final Order (which could be a Final Decree of Divorce, Order In Suit Establishing the Parent-Child Relationship or a Modification Order) along with a Employer's Wage Withholding Order are entered with the Court, in most cases, at the same time. Court mandated forms are completed so the District Clerk knows where to send the Employer's Wage Withholding Order. The order is then sent to the employer of the parent responsible for paying child support. There is a $15.00 fee that must be paid to the District Clerk in order for them to forward the Employer's Wage Withholding Order to the employer. Upon receipt of the Employer's Wage Withholding Order the employer will deduct the child support from the paying parent's wages from the next pay cycle and forward it to the State Disbursement Unit to be applied to the child support account.childsuport3.jpg

The State Disbursement Unit in San Antonio is set up from the forms received from the District Clerk's office. You will then receive correspondence from the State of Texas with information related to your account which includes the Attorney General Case Number, instructions to allow you to determine how you wish to receive your child support, and the information necessary for you to set up and access the Texas Attorney General's website, which you can access at https://childsupport.oag.state.tx.us/wps/portal/csi There are options available to you as to the manner in which you can receive your monthly child support payments which include direct deposit or you may elect to receive a Texas Debit Card. The Attorney General's website will maintain records of child support payments and disbursements.

This entire process may take up to 30 days to complete. You should then begin getting your child support payments in accordance with the Employer's Wage Withholding Order in the manner in which you elected to receive child support payments.childsupport.jpg

Coming Soon: Temporary Child Support and Child Support and Small Business Owners

The Big Question: Should I Get a Divorce

  • 27
  • January

ted ogilvie_SMALL.jpgOccasionally in our office we consult with new clients who question whether or not they really should get a divorce. They aren't sure if their marriage is ripe for such a drastic measure. After all, divorce is new to them, and they have no barometer to tell them when the storm in their life requires them to take cover. It kind of reminds me of our fickle Texas weather.

If you've lived in Texas long, then you know tomorrow may not be what the meteorologist on this morning's news said it will be when you were sipping your coffee and getting ready for work. And having lived in Tornado Alley nearly all of my life, even though you can rely slightly on what the prediction will be, you have to be alert and watch the signs around you. If swirling clouds are all around you, pay attention and take appropriate cover. My dad would always look at the cluster of gauges hanging on the wall in our house, paying particular attention to the barometer. He was checking to see if there was a big dip in pressure to know for sure if a tornado was in our midst. Now, I have no idea if that works, but he insisted he could always telltornade.jpg.

I feel like clients are doing the same thing when they present in our office for an initial consult. "Should I get a divorce?" is not a question your attorney can answer. Only the client can answer that. As the lawyer, I can advise how to prepare, what steps to take, when to put up certain shelters, and what the road may look like if the divorce does happen. But I simply cannot answer that paramount question. I can agree that a divorce may seem appropriate under the circumstances, and I can say that grounds exist to legally justify a divorce, but the call is not mine to make.

Under the Texas Family Code, Section 2.501(a) requires each spouse to support the other spouse. So when you are going through a rough time, remember your duty to support your spouse. Often we consider only the failure of the other to support us, but this duty runs both ways. I always run through the mutual duty scenario to help determine where my clients fall. If they need to be more supportive of their spouses, then they need to try this before heading to the divorce alter. The Texas Family Code speaks mainly to financial matters in this section, but it's not much of a stretch to consider the other relationship supports that are often needed in a marriage.

The big question, then, is usually much more clear, and clients can much more readily make that ever-so-important decision: Should I get a divorce?souldi.jpg

The Four "BE"'s of Family Law Mediation

  • 22
  • January

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I have had the pleasure of mediating and settling many family law cases for lawyers and parties over the years. The case I settled this week inspired me to write this blog that I call the Four "BE"'s of mediation.

1. BE Selective-Most attorneys have their "go to" mediators. Good attorneys can match the facts or dynamics of the case and the personalities of the parties involved with the personality or style of a particular mediator. The mediator that the attorneys agree upon to mediate your case has a huge impact on the chance your case settles. Choose wisely.

2. BE Prepared-Make sure you know what you want in mediation PRIOR to your mediation. Take the time (with the help of your attorney) to prepare a position statement and send it and anything else you want the mediator to review to the mediator as far in advance of your mediation as possible. I appreciate it when I know the position of both parties before you get to my office, and I have found that it decreases the emotional toll on the parties when I can walk in their room and proudly announce that I am familiar with the case and there is no need for the party to recount what circumstances brought them to this litigation.mediation.jpg

3. BE Patient-Most mediations take a full eight-hour day, and some even longer. The mediator by necessity may be in the room with one party longer than the other. The fact is-you know the other party far better than the mediator, the attorneys, or the Judge in your case ever will. Don't get frustrated if the mediator spends a great deal more time with the other party. There is a reason for it. Be patient.

4. BE Open-Minded-Mediation is meant to be a good-faith negotiation. Rare is the mediation where both parties get everything they ask for, but it can happen. Good mediators and attorneys can come up with creative ways to solve issues by thinking "outside the box" if you will remain open-minded and have a goal of resolving your case in mediation as to taking your case to trial.

Remember the Four "BE"'s. Trust me, if you follow them, you will have a great chance of settling your case.Thumbnail image for collaborative-law-2.jpg

Child Protective Services - Their Role in Family Law Cases

  • 21
  • January

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In certain family law cases, circumstances will exist such as abuse or neglect of a child that will warrant outside involvement in determining where a child will end up living and who will be the child's caretaker. Child Protective Services, or CPS, can become involved in cases such as these when the safety and welfare of a child is being threatened by the actions of a parent or relative of the child. CPS will take action when they find that such harm exists to the child.cps3.jpg

The Texas Family Code allows for CPS to investigate and act on allegations of abuse or neglect towards a child by their parents or caretaker. CPS can conduct an initial investigation and make a finding of reason to believe that there has been abuse or neglect of a child by a certain party. In addition, CPS can perform an emergency removal of a child from a parent's care if they find that exigent circumstances exist such that the remaining of the child in the care of an abusive or neglectful parent would cause significant harm to the child.

Once the child is removed from the care of a parent who is alleged to have been abusive or neglectful, the child will likely be placed with a competent relative. If a competent relative is not available, then the child will possibly be placed with a foster family that will care for the child during the pendency of the case.

After this occurs, CPS will draft up what is called a safety plan for the parents to follow for possible reunification of the child with them at the end of the case. The safety plan will order various things to be done including parenting classes, counseling, drug testing, AA/NA meetings, obtaining employment and housing, and payment of child support and medical support. The goal for the parents is to follow the safety plan and successfully complete it so that they can be reunified with their child. Not following the plan is grounds for termination of a parent's rights upon having a final trial in the matter.

If you or a loved one has been contacted by CPS or has had your child removed from your household by them, it is vital that you contact an attorney to help with obtaining placement of your child back in your care. While it will not be an overnight process to have the child reunified with you, following the proper steps laid out by CPS and required by the court can result in you ultimately having your child be placed in safe and stable environment in the future.

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What Happens in Vegas . . .

  • 16
  • January

Thumbnail image for Thumbnail image for Thumbnail image for ted ogilvie_SMALL.jpgWe've all heard that phrase, "What happens in Vegas-stays in Vegas!" Quite often I hear divorce clients voice a desire to keep the facts and circumstances of their divorce private. Sometimes it is because of privately-held business or financial concerns that at least one spouse wants to protect from the public. Sometimes it is because of sexual or infidelity acts that are embarrassing and crushing to a spouse's reputation. Sometimes it is because of religious or ideological practices that would be detrimental to a spouse's social position or security. Sometimes it is simply because a splitting couple chooses to keep their children from being exposed to the fighting and what led the parents to divorce.48442_what-happens-in-vegas-photos-032408-10.jpg

There are a few legal maneuvers available to use in most divorce cases that allow a party to shroud those nitty-gritty and sensitive details from getting out. While every marriage is different, a good family law firm can assess the client's unique circumstances and propose that just right litigation plan, cooperative plan or collaborative plan that permits that just right level of privacy.

Not every marriage is the same, and not every tool in the lawyer's bag is the correct tool for every divorce. It takes lawyers experienced and knowledgeable in the law, familiar with local practices, and leaders in resolving cases via various methods. There are a few rare individual practitioners out there who can do it all well. But if you can't find that rare one, look for a versatile family law firm that has a team of lawyers leading the area in complex divorces. They will know the ins and outs of keeping things hush-hush and out of sight. They will know the best course of action to keep your private business . . . well, private.what-happens-in-vegas-2008-01.jpg

Now, there is never a guarantee that someone on the other side won't spill the beans. Sometimes things are leaked from Vegas, too! But it is important to start the process off with proper protective orders, privacy agreements, and selection of procedural steps in mind to get you where you want to go with the umbrella fully deployed. Start your case off with a plan, but more importantly, a plan for a quiet success. Know before you roll the dice!9751025vegas.jpg

Having a Problem Convincing your Fiancé on getting a Prenuptial? 17 Things to do to Still Protect Yourself.

  • 15
  • January

Thumbnail image for Thumbnail image for wfneal_SMALL.jpgFirst, let me say unequivocally that having a Prenuptial or Premarital Agreement is the best thing you can do to protect your present assets and future accumulation of assets. If done correctly and attended to throughout the marriage, the prenupt is as close to a "lock" in the law as you can get. With this being said, I know the difficulty that confronts marrying couples when the ugly word "Prenuptial" comes up. Love is out the door and suddenly it becomes a business deal which doesn't go well with picking out the wedding venue, deciding who to invite, and what do serve at the actual nuptials. In Texas, where I practice, Prenuptials are called Premarital Agreements. What I have learned is Premarital Agreements are usually reserved for couples marrying a second time or marrying later in their life. Younger betrothed couples haven't had the time to accumulate anything of value - so the need for the agreement is not as pressing. However, if an inheritance is expected in the not so distant future, estate planning gifts from parents or grandparents will be coming, or there might be a settlement of a large personal injury lawsuit are on the horizon, young marrying couples should consult with a competent and experienced family lawyer.prenup.jpg

So, you if you just can't get past the first argument from your future husband or wife that "they can't believe you trust them so little as to ask for a Premarital Agreement", what should you do? First off, I would carry the argument to the next step which is to say back to them that Premarital Agreements can be as creative and expansive or limited as the human mind can fathom. Outside of being unable to contract for anything that deals with children of the marriage or is void against public policy and the law, they can come up with any agreement they want. I have drafted Premarital Agreements that cover everything from how much money one spouse has to pay each month for the couples' bills to how the couple will manage new businesses that may be started to retention bonuses for how long they stay married to how many vacations they will take a year to how much sex will be allowed monthly. Yes, it can be quite a creative document.

But, if you don't have it in you to risk your soul mate walking the relationship because you insist on a Premarital Agreement, then the second best thing you both can do is manage the finances of the marriage by religiously taking and following certain steps and rules. Here are 17 Rules you should follow in marrying without a Premarital Agreement:

1. One month before the wedding - make a copy of every statement for every bank account, retirement account, and brokerage account you have. Anything you have put in your money before the marriage. Make copies of all titles to land, cars, or boats you have. Make copies of the statements for all travel awards. Make copies of all credit cards you have and the balances on those cards as of the date of marriage.

2. Make a list of every asset and credit card you own. Try to get the same from your fiancé - including the information in paragraph 1 above.

3. The day of your marriage (or not later than 30 days after your marriage), make copies of the next statements you receive on any financial account in your name, including credit card balances.

4. Take all the information you gathered in 1-3 above, have it scanned into a computer then stored on any storage media and put it (and the original paper hard copies) into your safe, safe deposit box, or leave with a trusted family member who is good at organizing and keeping things safe. All of 1-4 is a safeguard for you to be able to prove - should a divorce occur - what exactly you owned and owed on the date of your marriage.

5. If you have a brokerage account or any kind - pre- tax or post tax - call your broker or plan administrator before the marriage and have them "sweep" the accounts of any income that is earned by moving monthly that income into another account designated as the "community" account. Use the post-tax income ("community") account for any expenditures you might need during your marriage. Never touch the account from where the income was swept.

6. If you receive an inheritance, cash gifts from anyone not your spouse, or from a personal injury settlement NEVER deposit them into any joint account with your spouse. Deposit them into an account you designate as "Separate Inheritance" or "Separate Gift" account in your name only.

7. NEVER put your spouse's name on property you owned before you married or property you bought after marriage with your separate funds. NEVER - even if he or she makes you feel like the worst human being ever for not having the house in which you both live titled in both your names. NEVER let your parents put anything in both your names unless this is their real intent. If you violate this rule, you or your parents may have just made a gift of at least 50% of the equity in that property to your spouse.

8. Don't give a major purchase item to your spouse on a birthday, anniversary, Valentine's day, or other special occasion unless you truly want him or her to have it as their separate property. Paid for cars, diamond rings, or pets are going to more than likely be determined to be your spouse's separate property if you try to manage cash flow with special occasions.

9. Keep a log of the changes in all the financial institutions you listed when you did paragraph #2. Banks change names. Brokerage Houses (remember Lehman Brothers) merge or go out of business. The financial institution you had your money in when you got married may be a distant memory when a divorce occurs. Hard to remember what changed into what 9 years after the fact.

10. Scan or keep safe every statement you receive from any asset you own. Financial institutions are only required to keep records for seven (7) years and some will lie and tell you they only keep them for four (4) years. Nothing is more hair pulling for you or your attorney than to know you could prove certain property to be your separate property - only to be unable to get that statement from 6 years ago.

11. Be careful on refinancing the house you had before you married. NEVER let the refinancing underwriters make you join your spouse in the refinancing and then re-title the house. The consequences can be the same as in #7 above.

12. If you decide to sell the house you had before marriage and put the money into a new family home, make sure that all the equity from your first house is kept intact - dollar for dollar - into the new house. Don't use your joint account. Have your house sale proceeds run through another account in your sole name and be sure you have the documents and can trace where all of it went.

13. If you are getting money from your parents, make sure you have documents that describe what that money is for - is it a gift to you, a gift to both of you, a gift to your kids, or a loan. Keep those documents. Invest a few hundred dollars in an attorney to get the correct documents drafted.

14. Update your lists of your property annually. Don't wait five years then try to retrace what you have done with your assets over the past five years. You will more than likely make it all the worse.

15. Control your credit cards and what they are used for and in whose name the card is titled. There is no such thing in Texas as a "community debt" (unless it is for necessaries and that is a full topic for another day but let's just say necessaries are very limited). So, who is responsible for the credit card that is used to pay for the vacation to Disneyworld is going to be primarily based on who originally signed the contract to get the card with the credit card vendor. This can be ferreted out in a divorce - but the expenses to do this work are going to be costly. Try and keep the cards and amount owing equal between your cards and your spouse's cards as much as possible during the marriage.

16. If you have rental property that you had before your marriage, inherited, or purchased with cash from your separate property, you need to segregate your profits from that investment from the asset itself. This area can be complicated. Use some of the money you saved from not drafting a premarital agreement and see an experienced CPA and attorney.

17. Don't play the stock market from an account that you had before marriage. Set up a trading account and do it there. Keep track of where the money used for the trading came from to start the trading account and pay back your separate account dollar for dollar exactly for the seed money. Never put profits back into your separate property account. Never put your paycheck into any of your separate property accounts. Never! Ever!

The above 17 things to do to make up for not having a Premarital Agreement are only a highlight of some of the important things you can do to protect your separate property, inheritances, and gifts during your marriage. Just following the 17 things I set for above will save you thousands upon thousands of dollars if a divorce ever does darken your door. However, it takes attention and follow up to do it and stay with it. You'll thank me to the end of your days if you do what I say and then find yourself in a divorce situation.

So will your lawyer - probably more than you.


Temporary Restraining Orders - A Primer

  • 14
  • January

Thumbnail image for johndenke_SMALL1.jpgWhen filing a suit for divorce or custody, there are various forms of relief that can be requested at the outset of the case. When there are particular items that parties desire to keep intact when filing one of these suits, a temporary restraining order can be a useful tool. In addition, a temporary restraining order can be issued for the protection of the parties or their children.restrainings.jpg

A temporary restraining order is typically requested at the beginning of the case when there is some sort of threat to the sanctity of the parties' property or children. So, for example, a spouse might seek to prevent the other spouse from draining bank accounts or selling assets when there is a threat that they might do so when served with a divorce petition. Another example would be if a party asks the court to prevent a party from absconding with a child when served with a petition for custody of that child. Both of these examples can be addressed in a temporary restraining order preventing these actions from taking place until the parties can get into court.

Once a temporary restraining order is signed by a judge, it is typically active for 14 days from the date of signature. During that time, the other party is prohibited from doing the acts specified in the order until a hearing can be held, which hearing is usually set within that 14 day period. This does not allow for a lot of time for either notice to the other side or for preparation for the hearing, so a lot of work can go into a case during this limited period of time for both sides. At the hearing, the judge will decide whether any of the provisions in the temporary restraining order will become temporary injunctions which will be good for the duration of the case.

If you are concerned that your spouse or the other parent of your child may act rashly when served with a divorce or custody suit, you may want to consider talking with your attorney about obtaining a temporary restraining order. Although not all cases will justify getting one, the right set of facts can make it particularly helpful for a party to obtain one. If nothing else, it can give a party peace of mind that their property or children are under the protection of the court when their case is initially filed.


Paralegals Know What You are Going Through!

  • 13
  • January

paralegals2.jpgNurses in acute care units, emergency rooms, or Hospice situations shoulder a great burden. It is by their training and experience that they can do their job professionally but with care and empathy. The really good ones do this without missing a beat while balancing the job they have to do with the feelings they have for their patients. Their personal experiences - both with past patients experiences and in their own life experiences - combine to make the good ones the very best at what they do.

Although it isn't life or death, paralegals are the critical care nurses of your family law case. Like nurses, the good ones are good because of their professional and personal experiences. We, as paralegals, have seen clients go through the same things you may be going through and in our personal lives we have dealt with, endured, and gotten through similar situations with our families. Because of this, when we say that we understand and want to help you - we mean it!.

Every one of the paralegals at Neal Ashmore have empathy as one of our strengths. (According to the Gallup Clifton StrengthsFinder Assessment) This means that we understand and know the pain that you are going through in your case. We try every day to use our empathy strength to help you in dealing with not only the legal aspects of your divorce, modification, or other legal matter - but the emotional ones too. During a case we, as paralegals, are going to have a lot more communication with you on a daily basis than the attorney in charge of your case. We want you to know that we welcome you reaching out to us about how you feel, venting the frustrations, and celebrating the small day by day victories that come about when going through a divorce or other family law matter.

We really do care. We really are here to help you. We really do want to make a difference for you.iklgjw04vwljwqq.jpg

Peyton Manning's Dilemma is Also Our Daily Dilemma

  • 12
  • January

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Peyton Manning is an NFL quarterback. I am an attorney. You might be a school teacher, fireman, elec trician, CEO, small business owner, stay-at-home mom/dad, or any vocation that you have made your career or life purpose. Peyton Manning is facing a dilemma - should he retire or come back for another year? A future Hall of Famer who will be 39 this March faces the decision to hang it up on his football career - or gut it up for another try in 2015. ESPN hadn't even had a chance to summarize the Broncos loss to the Colts in Sunday's game for the television viewers when other media types were asking Peyton in his postgame interview if he would return for his 3rd season with the Broncos. What is he to dopeyton.jpg?

Well, if you step back from the celebrity status of Peyton Manning and look at what he has to decide, you might be able to see yourself in his dilemma. Yes, the "dilemma" is more attention grabbing when you are as famous as Peyton Manning in this US of A NFL Football driven country. However, the thought process and decision making that he will have to go through is as pertinent to you as it is Peyton. And it just doesn't apply to retirement decisions. It applies to continuing in school or dropping out, to staying in your chosen field of work or changing your career, to moving from your current employer to another employer or to starting your own business, to sticking with a marriage that has problems or getting a divorce. Each of us every day human beings face this "Peyton Manning Dilemma" in one way or the other.

How can you compare Peyton Manning retiring as an NFL Quarterback to us common folk, you ask? Because the common thread that ties all of us together is one thing: do we have it in us to put in the work?

Peyton wouldn't retire if all he had to do was show up and be assured of a 13-3 season and a return to the Divisional Playoffs next year with no injuries. Of course he would play for the millions Denver is paying him and the thrill of millions watching him on TV - living and dying with every pass and interception. But it doesn't work that way. There are no guarantees - in his life or our own. The question he has to ask himself, and we of ourselves, is whether we will put in the work day in and day out. Is the goal we are seeking worth the sacrifice and risks we will have to make to achieve it. No one will be watching Peyton Manning this off-season as he heads to the weight room to lift at 6:00 am. No one will be watching him as he throws 500 passes in the Spring to no-name receivers at his practice facility. No one will be following him as he heads to the film room to break down last year's games and find the small cracks in his game that he has to work on to get better and grab that gold ring. No one!

The same holds true of our personal dilemma choices - no different than the decisions that Peyton Manning will have to evaluate. Do you have the stamina to put in the drudgery work day in and day that is needed to maintain and be better than you are today? Do you have the "grit" to focus on the small things you have to do to become better and succeed. What are the goals you seek? Where have you set the bar for your life? What are the risks you will face in going forward with whatever decision you may make? I am a practicing family lawyer. I have been doing this for a lot longer than Peyton Manning has been an NFL quarterback. But I understand his dilemma. I ask myself everyday if I have the passion to work all weekend or get up at 4:00 a.m. to get do the final preparations for a big trial or mediation where the entire future of my client's family will be determined. Do I have the patience and fortitude to wake up in the middle of the night worried about some obscure evidentiary point on a piece of crucial evidence I have to get before the judge or jury? Do I have it in me to strive to be better than I am today? Or is resting on my laurels ok at this stage of my career since I have put in 42 years already? So far, the answer has been yes. When the answer is no, then I need to retire just like Peyton might do.

Money won't be a factor in Peyton's decision. Money shouldn't be a factor in your decisions. Just like Peyton, the money will be there if you work at being the best you can be - the best NFL Quarterback, the best mom or dad, the best plumber, the best CEO, the best teacher, or the best husband, wife, or significant other. Besides, most of the time we can't control the money - we can only control ourselves. What we want to be, and what we want our legacy to be, is totally an individual and internal deliberation. In the end, it boils down to commitment. We all have to ask ourselves what our real and true level of commitment is to what we want to be. Without commitment to our goals, plans, career, and family, we are merely floating through life, fooling ourselves, and setting us up for disappointment. Embracing the commitment you have will lead to the work you have to do to reach where you have decided you want to be. The commitment has to be renewed daily. The vision that our commitment fuels must be seen daily. Ignoring these truths puts us at risk in everything we do as human beings during our short time here on this earth.

Does Peyton have the commitment? We'll have to see. More importantly, do you?Thumbnail image for choices.jpg



Waiting Periods in Custody Modification Suit

  • 06
  • January

johndenke_SMALL1.jpgFamily law courts are always concerned with the best interests of the children when children are involved in litigation between parents or other parties. Built into their concern is the law behind parents and children designated in the Texas Family Code. The courts generally do want to see some stability when it comes to putting orders in place involving children, and have laid out certain waiting periods when it comes to modifying those orders.

When it comes to custody cases, a decision to give one parent custody over another parent can create an emotionally charged environment for the parent not given custody, particularly when they fought for primary conservatorship during a case. Sometimes, the parent not given custody will want to come back into court and attempt to modify the court's order granting primary custody to the other parent.modific3.jpg

When this happens, the family code has a general waiting period of one year for a change in custody to happen unless certain criteria can be met. Those criteria require an affidavit or sworn statement to be attached to a lawsuit seeking such modification that states either the child's present environment may endanger the child's health or significantly impair the child's development, that the other parent consents to the change in custody, or that the parent with custody has voluntarily given up primary care and possession of the child for at least six months. The court may refuse to set a hearing on a change in custody if this affidavit is not attached or the court determines that none of these criteria have been met.

In addition to the above, if a court is to change custody of a child at a temporary hearing which takes place before a final trial, the court must find that either the child's present circumstances would significantly impair the child's health and development, the parent with custody has voluntarily given up possession for six months, or a child 12 years of age or older expresses to the court who they want to live with on a full time basis. If a parent cannot meet these requirements, then they are going to be left with trying to change custody on a permanent basis at a final trial.

Before considering changing custody of a child, a parent should consider these waiting periods instituted by the legislature for the protection of a child. As stated before, they are mainly designed to give some stability to children by having them know that where they are living will be home for the foreseeable future. The barrier provided by these waiting periods is of course counteracted by the fulfillment of their requirements, which are further designed to protect the best interests of the children in family law cases.custodymodif1.jpg