In Texas, grandparents have rights only in very limited circumstances.  The general rule is that the parents have a fundamental right to decide how much, if any, access a grandparent should have.  There are two different issues when dealing with grandparent cases:  (1) When does a grandparent have the ability to sue for custody? and (2)  When does a grandparent have the ability to sue for visitation?

Under the Texas Family Code, a grandparent has standing to sue for custody in a variety of ways.  First, the grandparent can sue for custody if any of the general standing requirements are met under Section 102.003(a) of the Texas Family Code.  These general standing requirements apply to all adults, not just grandparents, so in these situations the person’s status as a grandparent is not relevant.  Those grounds include: (1) a person with court-ordered visitation in another state or country; (2) the child’s guardian; (3) a person who has had actual care, control and possession of the child for at least six months; (4) a person designated as a managing conservator in an affidavit of relinquishment or given consent to adopt; or (5) a person who resided with the child and a recently deceased parent.  A grandparent also can gain standing under section 102.004(a) of the Texas Family Code if she has satisfactory proof that the child’s present circumstances will significantly impair the child’s physical health or emotional development.  The significant impairment must exist at the time suit is filed.

The standing rules are different when it comes to a grandparent just wanting visitation of a child.  In order for a grandparent to file suit for possession and access, the grandparent must prove that her son or daughter who is the child’s parent is unavailable.  This prong is met if the parent: (1) has been incarcerated for at least three months before the petition was filed; (2) has been judicially declared incompetent (3) is dead; or (4) does not have actual or court-ordered possession of or access to the child.  Essentially, it is presumed that if the grandparent’s child is in the picture, that person has the right to determine if the grandparent has access or not.  It is only when the child of the grandparent is out of the picture that the grandparent now has a right to file suit for possession and access.

If the grandparent can sue for possession and access under these terms and the child is with a parent, the grandparent must then show that the child’s physical health or emotional well-being would be significantly impaired if the grandparent is not given possession and access.  If a non-parent has custody, many courts have held that significant impairment need not be shown.  The grandparent must also prove that the parent or non-parent managing conservator intends to completely deny possession and access to the grandparent.

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Waivers of service are quite common in family law cases in Texas.  They do exactly what they say – they waive service of process.   A waiver of service does NOT mean that the other person is not contesting anything in the case.

When I am trying to approach a divorce, child custody case, or any other family law matter in the most amicable way possible, I almost always ask the opposing party to sign a waiver of service.  This means that we will not be having a constable or private process server take the petition and citation and hand it to the person.  Instead, the opposing party is acknowledging receipt of the petition, providing up-to-date contact information for the court, and saying that he does not need to be served.  The waiver of service must be signed before a notary and filed with the court.  I generally have the opposing party return the waiver to me for filing.

In general, I have no issue with someone signing a waiver of service.  However, if you are asked to sign one, you need to read it very carefully to ensure you are not waiving any of your other rights.   I have seen waivers prepared by other attorneys that say the person is waiving the right to be notified of any future hearings or things like that.  The purpose of the waiver should be solely to waive being served and to enter your appearance before the court, nothing else.

If you someone presents you with a family law petition and a waiver of service and you plan to hire an attorney, you do not need to sign the waiver.  Instead, take the petition to the attorney.  The attorney will answer on your behalf.  This still eliminates the need to be served.

Why would we want to eliminate serving someone?  There are a few reasons.  First, most people do not want to be served, especially at work.  Therefore, asking them to sign a waiver eliminates that potentially unpleasant experience and sets the stage for a more amicable process.  Second, it costs money to serve someone.  You need to pay the clerk to issue a citation (and maybe more, depending on the circumstances), plus you need to pay for service by either the constable or a private process server.  I almost always use a private process server, as I find it to be the most effective means of serving someone.  However, if the opposing party is difficult to find or dodges service, the costs can skyrocket.

There are times when I do not use a waiver of service and move straight to serving someone.  Most often this occurs when the client needs urgent relief through some type of emergency order and/or temporary orders.  If we need to set a hearing right away, we will need to serve the other side.

If you are presented with a waiver of service and have any doubts about what you are signing, it is best to contact an attorney before signing.

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In any family law case (divorce, child custody, child support, etc.), you may hear the term “discovery” used.  Although there are many kinds of discovery, this term is typically used to refer to formal, written discovery.  Common types of written discovery include a Request for Disclosure, Requests for Production, Interrogatories, and Requests for Admissions.

A Request for Disclosure is a standard set of questions that comes from Rule 194 of the Texas Rules of Civil Procedure.  It is used in all types of civil cases, not just family law, and therefore many of the questions are not relevant in a family law case.  There is some helpful information to be gained from a Request for Disclosure, such as a list of persons with knowledge of relevant facts, so it is still common to see this type of discovery in family law matters.

Requests for Production ask a party to produce documents or other tangible things.  There is no limit to the number of requests for production a party can request, and it can become extremely time-consuming for a party to gather the requested documents.  It can also be extremely time-consuming to review the documents produced by the other party.  Examples of commonly requested documents are tax returns, school records, medical records, diaries, e-mails and texts.

Interrogatories are questions that seek a written answer from the other party.  In most case, parties are limited to serving 25 interrogatories on the other side, so it is important to make them count.  Common interrogatories include asking for a list of trial witnesses, asking for information on medical issues, or asking for specific financial information.

Requests for Admissions ask the opposing party to admit or deny a certain fact.  I normally find that people will deny almost everything based on some type of technicality, so I don’t use Requests for Admissions too often.  There are certain cases where there are facts that you really want the other party to admit or deny, so on occasion these can be helpful.

In my practice, I rarely initiate written discovery.  Most often I feel it is an unnecessary expense for the client where a lot of needless information is sought.  If there is a document or information I need, most attorneys will hand it over voluntarily.  That type of informal discovery streamlines the process tremendously.  However, if the other party serves written discovery, I will always serve written discovery on that party.  Some firms make it a standard practice to use written discovery in most cases.   If you are served with written discovery, it is important to meet the deadlines to answer or any valid objections you may have will be waived.

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I recently became board certified in family law by the Texas Board of Legal Specialization.  Many attorney advertisements reference the fact that an attorney is or is not board certified.  I have to admit that until I started looking into board certification for myself, I did not even realize what it took to be a board certified attorney.  How hard could it be?  It seems like board certified attorneys are everywhere, so it cannot possibly be that hard, can it?

First, board certified attorneys are not as common as you may think.  According to the Texas Board of Legal Specialization website, there are over 100,000 licensed attorneys in Texas but only 7,450 are board certified.  There are twenty-two different specialty areas, so the number of board certified attorneys is any one area is significantly lower.

Next, when I started looking into the board certification process, I realized just how difficult it is to become board certified in family law.  No attorney can apply for board certification until he or she has been practicing for at least five years with at least three years in the specialty area.  However, given all of the requirements needed to become board certified, it takes most attorneys longer to qualify.

In order to become board certified in family law, the attorney must complete the following requirements just to be allowed to take the board certification exam:

  1.  The applicant must submit five references who are substantially involved in the practice of family law, with four being other attorneys and one being a judge before whom the applicant has appeared.
  2. The applicant must have 60 hours of Continuing Legal Education hours specific to family law in the past three years.
  3. The applicant must have devoted a minimum of 35% of her time to the practice of family law during the preceding three years (however, I think it would be difficult to achieve all of the requirements while only spending 35% of time on family law matters).
  4. Within the three years immediately preceding the application, the attorney must have completed the following:
  • Participated as lead counsel in at least 9 contested trials or binding arbitrations regarding family law matters, with at least four involving property issues and at least four involving appointment or modification of conservatorship;
  • Participated as lead counsel for a party or children in at least 30 contested family law matters that were finalized without a trial;
  • Satisfied at least two of three of the following:  (1) Participated as lead counsel for a party or children in at least two jury trials, with at least one involving family law; (2) handled an appeal and filed a brief as lead counsel in a family law matter; or (3) represented a party or children or served as a mediator in at least 25 family law mediations.
The application is extremely detailed, seeking information on the other attorneys involved in every case, the dates of mediation, the value of property involved in each case, the final disposition of the case, etc.  If the application is approved, the attorney is allowed to sit for the board certification exam.
I received notice that I could sit for the October 2016 board certification exam in the summer 2016.  At that time, I began asking other attorneys about the difficulty level of the test and how much studying would be necessary.  Surely someone who has practiced almost exclusively family law for the past several years would know most of the material on the test, right?  Wrong.  The test is extremely difficult.  Most attorneys I talked to recommended attending the annual Advanced Family Law seminar and said they spent hours each week for months preparing for the exam.  The attorneys I talked to who did not take studying seriously the first time around did not pass the test.  As a result, I attended the Advanced Family Law seminar, read all of the papers from the speakers (over 2500 pages, according to my iPad), and spent several months studying for the test.  The studying paid off, as I passed the test on the first try.  And, I can definitely say that all of the studying and preparation for the exam made me a far more knowledgeable attorney than I was before.
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This morning, I sat in a courtroom waiting to do a prove up hearing with a client.  There were six cases in line before us, and all of those cases were pro se divorce prove ups.  If a person is pro se, it means he or she is representing himself or herself.  When there is a pro se divorce prove up, we know that both parties were pro se.  Of the six cases heard before us, the judge rejected five of the orders, and those people did not get divorced today.  This particular judge took the time to tab all of the pages with problems and give a good amount of information to the parties.  However, in my experience, most judges will not do that.  Many judges will simply say they cannot give legal advice but they are not going to approve the order as written.  All of the problems I saw today would have been avoided if at least one party had an attorney.

There are an abundance of do-it-yourself divorce forms out there floating around.  Although most of them are probably technically accurate, they are very vanilla and cookie cutter.  The only time I would ever recommend someone attempt to do their own divorce is if there are no children and no property or debt.

In cases involving children, the pro se forms include cookie cutter standard language regarding custody and child support.  Although a couple may be fine with standard possession and guideline child support, there are many other options out there that pro se parties would never know exist.  Is a 50/50 schedule preferable in a particular situation?  Is there a reason why the parties should have something other than guideline child support?  An attorney would be able to help answer those questions and draft a custom order that best fits the parties’ situation.  The good news is that at least mistakes related to the children can be fixed because custody and child support can be modified down the road.

With regards to property and debt, if the parties do something wrong in the divorce decree or forget to include an important provision, after thirty days it cannot be changed absent very limited circumstances.  For example, Husband and Wife divorce pro se.  In the decree, they say Wife will keep the house.  They do not know that they should include a provision that the Wife must refinance the mortgage into her own name within a certain amount of time or the house must be sold.  So, there is no such provision included.  Several years down the road, Husband decides he wants to buy a house of his own.  Guess what?  He is still listed on the mortgage of the house owned by Ex-Wife, and he cannot qualify for a mortgage for another house.  Unfortunately for Husband, there is absolutely nothing he can do to force Wife to refinance or sell the house.  He is stuck. Similarly, if Wife does not pay the mortgage or gets behind, Husband’s credit will be negatively affected.  The mortgage company could even come after Husband to pursue the debt.  He never would have been in that situation if he would have hired an attorney in the original divorce.

Divorces involve extremely complicated issues related to both children and property.  It is simply not possible for pro se parties without knowledge of family law to properly deal with those complicated issues.  Unless you have no children and no property or debt, it is highly recommended that you hire an attorney to handle your divorce.  If you and your spouse are in agreement as to the terms, that is wonderful!  However, it is still a good idea to hire an attorney to make sure the paperwork is drafted properly and to make sure you are correctly addressing all important issues.

Divorce

 

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There are two types of property in a marriage:  separate property and community property.  Separate property is defined as anything either spouse owned before the marriage or anything either spouse received during the marriage through inheritance or a gift.  Community property is any property owned during the marriage that is not separate property.  Property issues can be very complex, and this post is designed to give just a brief overview of a few issues.

In Texas divorce cases, there is a presumption that all property is community property.  In order to prove separate property, the proponent must establish by clear and convincing evidence that the property is separate.  It will generally not be enough for one spouse to simply claim that he or she had certain property before the marriage or that it was received as a gift / inheritance.  He must show records to back it up.  Below are a few examples of separate property issues and how a party could prove them.

Example 1:  Husband owed Home 1 prior to marriage.  Wife moves into Home 1 with Husband.  Two years later, the couple sells Home 1 and uses the $50,000 proceeds from the sale of Home 1 as a down payment on Home 2.  Home 2 is now co-mingled community property and separate property.  Husband must be able to prove (a) that he owned Home 1 as his separate property prior to the marriage, and (b) exactly how much money from Home 1 was put down for Home 2.  He could show that Home 1 was his separate property by producing a deed for the house dated before the marriage and showing him as the owner.  He could show how much money from Home 1 was put down for Home 2 through closing records from the sale of Home 1 and the purchase of Home 2.  Through those records, Husband has established a separate property claim for $50,000 in Home 2.  Husband would be entitled to a dollar for dollar credit for that separate property.

Example 2:  Wife has a separate property bank account before the marriage that contains $100,000.  The account is in her name alone.  Wife marries Husband and continues to have her paycheck deposited into the account.  Her paycheck is community property, and now she is commingling community funds and separate funds.  If Wife is making withdrawals from the account over time, Wife will need to providing a tracing of the account to prove her separate property.   There are a variety of different tracing methods used in Texas.  The most common is the “community out first” rule.  This provides that all withdrawals are presumed to be community so long as there are community funds in the account.  Wife deposits an additional $20,000 into the account during the marriage.  She withdraws money numerous times, for a total of $30,000 in withdrawals.  Under the community out first rule, the first $20,000 out would be the community funds.  The next $10,000 would be her separate property.  In the end, the community would have $0 in the account and Wife would have $90,000 in separate property.  There are other methods of tracing that could lead to a different result.

Example 3:  Husband and Wife are married for 30 years.  Husband receives an inheritance of $50,000 ten years into the marriage.  Husband deposits the $50,000 into the parties’ joint bank account.  Over the years, hundreds of deposits and withdrawals are made from that account.  Twenty years later, the parties divorce.  Husband is unable to provide tracing to prove what happened to the $50,000 because it was hopelessly commingled with community funds.  Husband is most likely out of luck in trying to keep any of the inheritance as his separate property.   The community property presumption will prevail.

Separate and community property issues can be complex and far exceed what can be put into a single blog post.  It is important to have an attorney familiar with the rules and the various ways to characterize property in order to ensure that it is done right.  It is also important to have an attorney who will help you understand the cost benefit analysis of trying to prove separate property.  Is it worth it to spend thousands of dollars on a forensic accountant to trace the money in an account?  Maybe.  It depends on the amount of separate property at issue.

Divorce

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Temporary restraining orders (“TROs”) can encompass a wide variety of issues in family law cases dealing with both property and children.  Often they involve allegations of domestic violence or abuse.  A temporary restraining order is granted without a hearing based on affidavits by the requesting party.

In most cases, TROs are requested at the very beginning with the petition is filed.  In that case, the judge will grant the TRO “ex parte,” which means that the other side, the respondent, does not have the opportunity to appear or respond.  The judge simply reviews the petitioner’s affidavits and determines whether or not the affidavits, on their face, provides enough to grant the temporary restraining order.  The respondent can attempt to dissolve the TRO once it is entered, but most often it is dealt with at the hearing.

Occasionally something happens during a case that makes one side request a TRO.  In that case, the attorney for the party requesting the TRO must notify the other side that a request for a TRO is being filed and give the other side the opportunity to appear before the judge and contest the entry of the TRO.  If the other side files for a TRO against my client, I quickly get my client (and any other relevant witnesses) to draft affidavits with their side of the story.  I then meet the other attorney at the courthouse when he is presenting the TRO to the judge.  I give the judge my affidavits and try to prevent the entry of the TRO, if possible.  In cases where there are allegations of abuse, the judge will almost always err on the side of caution and grant the TRO pending a hearing.  The judge just simply cannot take the risk that the allegations are true.

After a TRO is granted, the court must hold a hearing within 14 days.  If there is no hearing within the time limit, the TRO will expire absent an agreement or another court order extending the TRO.

CPS

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If I had a nickel for every post I saw in a Facebook group looking for an “aggressive” family lawyer or a “pit bull” of a family law attorney, I would be a rich woman.  These types of requests make me cringe.  Instead, I wish people would seek out a good, knowledgeable attorney who will look out for their best interests and help them resolve the case in the best possible way.

More often than not, “aggressive” does not achieve those goals.  I know a handful of other attorneys who I would put into the “aggressive, pit bull” category, and they are awful to work with.  I feel terrible for my clients when there is one of these folks on the other side.  It almost always means higher bills, more discovery, more time spent in court, and more heartache in an already difficult situation.  Sure, you may be mad at your soon-to-be ex-spouse, and you may want to go after him with guns blazing.  An aggressive attorney is ready to go with those guns blazing at all costs, but is that really in your or your children’s best interest?  Or, would you be better off reaching a reasonable, fair settlement and moving on with your life without wasting tens of thousands of dollars on attorney’s fees?

In my opinion, the ideal attorney will do a great job on your behalf in court, but she will also help you try and avoid going to court at all.  She will work hard to keep your costs down, help you understand the process, help you know what is necessary and what is not in terms of discovery and court hearings, help you understand the most likely outcome if you do end up in court, and help you settle the case, if at all possible.

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Most, if not all, of the courts in Collin County, Dallas County and Denton County require the parties to mediate before going to trial.  Even when mediation is not required, I almost always recommend to clients that they attend mediation.  Mediation allows you to come up with creative solutions that a judge could never order.  It also allows you to have control over the final result, which a trial does not give you.

Probably 90-95% of my clients are sure that mediation is pointless going in, as they know that neither party is going to compromise enough to reach a settlement.  Yet somehow 90-95% of the cases that I take to mediation end up settling.  There is a reason that mediators have jobs.  If the parties and attorneys could settle cases on their own, mediation would not be necessary.

Typically at mediation, my client and I sit in one room and the opposing party and his or her attorney sit in another room.  At most mediations, we never even see the other side.  The mediator (who may or may not be an attorney) goes back and forth between the rooms to try and help the parties reach a settlement.  By definition, the mediator is neutral.  If the mediator takes sides, he or she will almost certainly lose the ability to negotiate with the other side.  The mediator will often play devil’s advocate in both rooms.

In my experience, the best family law mediators are attorneys with extensive family law experience who know the judges and who know what the most likely outcome at trial is going to be.  They also have a very good grasp of the Texas Family Code to be able to guide the parties when they want something they would never get in court.

Mediation is a slow process.  Although some mediations can be done in half a day, I have been in mediations lasting anywhere from 8-13 hours for family law cases.  The mediators generally provide snacks and lunch.

Occasionally I hear from people who are interested in mediating without lawyers.  Although this may sound like a good idea in theory, it can be a dangerous proposition.  Mediators cannot give legal advice, even when they are attorneys.  This can really cause a party to be blind in the negotiating process, as he or she will have no clue what the law is or what he or she is really entitled to.

Overall, I think mediation is a wonderful process and very helpful in reaching amicable resolutions in family law cases.

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Often times family law cases involve one party with pending criminal charges.  I most often see this connected to a family violence allegation, but any type of pending criminal charge is usually relevant in a family law matter.  If a party has pending criminal charges that touch on the issues in the family law case, they can be very detrimental to that party’s case.

If a party has pending criminal charges, that party will almost certainly not be allowed to testify by his or her criminal attorney.  If that party does not have a criminal attorney yet, the family law attorney should know enough about criminal law to strongly advise the party against testifying in the family law matter.  Even if the party believes he or she is completely innocent and has nothing to hide, any criminal law attorney will still tell his client not to testify.  For one, the party’s testimony could be used against him or her in the criminal case.  If the party makes any type of admission related to the incident the basis of the criminal charges, it could mean jail time, a worse plea agreement, and/or a more likely conviction.  Even if the party does not make any admissions, if his or her testimony changes in any way by the time the criminal case rolls around, it will damage the party’s credibility and increase the chances of a poor outcome in the criminal case.

The party with pending criminal charges will have to invoke the fifth amendment and refuse to testify in the family law case.  While pleading the fifth amendment in a criminal case cannot be held against you, the same is not true in a family law case.  If one party pleads the fifth, the judge can hold it against that party.  As a result, whenever possible, if I am representing a client with pending criminal charges, I try to delay the family law case as long as possible in the hopes that the criminal case is resolved.  Once the criminal case is resolved, that party is free to testify in the family law matter.  That testimony can no longer be used against him or her in the criminal case.

Juvenile Defense

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