In most courts in Collin, Denton and Dallas counties, mediation is required before you can have a final trial in a family law matter.  In some of the courts it isn’t required but is “strongly encouraged.”  In my opinion, almost every case is appropriate for mediation before you have a final trial.

Mediation is a confidential process that takes place outside of the courthouse.  The parties hire a neutral, third party mediator to help try and get the case settled.    Although some mediations occasionally involve an opening session with all parties, I have not seen that happen in a family law mediation in many years.  Each party sits in a separate room with his or her own attorney.  The mediator goes back and forth between the rooms to help the parties reach a settlement.  The parties usually won’t even see each other, unless they happen to cross paths walking to the restroom or the parking lot.

Mediation can be a very slow process.  Most divorces involving child custody issues will take a full, eight hour day.  Sometimes they can last well beyond eight hours if there are a lot of issues in dispute.  Cases involving only property issues can take less time unless there are significant property issues to address.  Although many mediators offer half day (four hour) mediations, it is extremely rare for a family law case to settle in that short of a time.

Although mediation can get expensive when you add up the mediator’s fees and attorney’s fees on both sides, it is usually a lot less expensive than going to trial.  Further, it is a great way to help get cases settled in creative ways.   Judges are limited in what they can order in a trial, but the parties can agree to all kinds of arrangements at mediation.

The vast majority of my clients are convinced that their cases  have no hope of settling at mediation, but the vast majority of those cases do actually settle at mediation.  Parties tend to think that if they cannot settle the dispute on their own, why would it settle at mediation?  But the reality is that mediators have jobs for a reason.  Their help can be critical to getting cases settled.

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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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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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Almost every contested family law matter – divorce, child custody, CPS, termination of parental rights, paternity – ends up in mediation before a final trial.  Most, if not all, courts in Dallas County and Collin County require mediation before a final trial.

Mediation involves a neutral mediator – often an attorney but it does not have to be – who tries to help facilitate a settlement.  Normally, one party and her attorney are in one room and the other party and his attorney are in another.  The mediator goes back and forth between the rooms to try and reach a settlement.  Most of the time, I never even see the opposing party or that party’s attorney at the mediation.

Before I attend mediation with a client, I always prepare a confidential mediation statement that sets forth our side of the story for the mediator.  This helps save time at mediation.  Often times, I have found that the other side does not prepare a mediation statement.  I feel this gives my client a great advantage, as the mediator is starting the case with just our side of the story.

The vast majority of cases settle at mediation.   I have taken many cases to mediation that I thought could not be settled, and they have settled the majority of the time.  Even if a final settlement does not get reached, the parties can settle some of the issues to narrow down the issues for trial.

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Certain child custody cases involve the appointment of an amicus attorney.  This is an attorney appointed by the court to help protect a child’s best interest.  The amicus attorney is providing legal services to the court – not the child – and therefore there is no attorney-client relationship between the amicus and the child.

An amicus attorney is not bound by a child’s desires and can disclose confidential communications with the child to the court to help the court determine the child’s best interest.

An amicus attorney can be requested by a party, but the court can also choose to appoint an amicus on its own.  Most of the time, the parties will bear the cost of the amicus.  Occasionally, the court will have the county pick up the expense, if it deems the appointment is necessary but cost-prohibitive to the parties.

An amicus attorney may be appointed in any case where the court needs to determine what is in the best interest of the child.  Appointment is most common in termination suits and parentage suits, in certain situations.

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In order to sue to become the conservator of a child, a person must have standing.  In Texas, there are several ways that a grandparent can have standing to sue for conservatorship.  First, if the grandparent has had “actual care, control and possession” of the child for at least six months before filing the suit, he or she has standing.  Courts disagree on what exactly constitutes actual care or actual control.  If a parent has voluntarily given the child to the grandparent, this requirement is clearly satisfied.  The possession must not have been in violation of a court order.  The six-month period must end no more than 90 days before suit is filed, but the six months do not need to be continuous.

A grandparent (or any relative within a third degree of consanguinity) also has standing if the child’s parents are deceased.

A grandparent has standing if he or she can prove that the child’s present circumstances will significantly impair the child’s physical health or emotional development.  Grandparents often use this provision to obtain standing to file suit when the parents are abusive or have drug or alcohol issues.

Finally, grandparents have standing to file suit if the child’s parents have consented to the suit.  This allows for parents to voluntarily give the grandparents custody when they are unable or unwilling to care for the child.  In this situation, an order appointing the grandparents as conservators can be obtained quite quickly.

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In certain circumstances, a grandparent can file suit for “possession and access” with a grandchild.  Not every grandparent has a right to access to a child.  Texas law presumes that the parents have the right to make the decisions about whether or not a grandparent sees a grandchild.  Grandparent access is not the same as grandparents filing for conservatorship or to adopt a child.

In order to obtain possession and access rights, a grandparent must prove: (1) at least one of the child’s parents’ rights have not been terminated; (2) the child’s physical health or emotional well-being would be significantly impaired if the grandparent’s access or possession were denied; (3) the parent intends to completely deny the grandparent from having access to the child; (4) the grandparent is related; and (5) the child’s parent who is the grandparent’s child is unavailable.

If the child is living with a parent, there is a “fit parent” presumption.  This essentially is a presumption that the parent is acting in the child’s best interest by refusing to allow grandparent access.  Thus, the grandparent must prove significant impairment to overcome that presumption.  If a nonparent has custody, many courts have held that grandparents do not need to show significant impairment.

To show that the child of the grandparent is “unavailable” as the parent, the grandparent must prove one of the following (1) the child’s parent has been in jail for at least three months before the petition was filed; (2) the child’s parent has been declared judicially incompetent; (3) the child’s parent is dead; or (4) the child’s parent does not have actual or court-ordered possession of or access to the child.  Therefore, if your child is in the picture and either parenting the child or legally allowed to parent the child, then you cannot file for grandparent access of your grandchild.

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In order to file a child custody suit, a person must have “standing” to bring the suit.  Grandparents do not automatically have standing, but they do in certain situations.  The most common situation where grandparents have standing to sue for custody is if the child is in danger.  The grandparents must prove that the child’s current circumstance will “significantly impair” the child’s physical health or emotional development.  For example, if the parents have a substance abuse problem or are abusive, the grandparents can legitimately claim standing under this provision.

Additionally, grandparents have standing to sue for custody if they have had “actual care, control and possession” of the child for at least six months before filing the suit.  In other words, if the child has been living with the grandparents and the grandparents have been the caregivers for the child for at least six months, those grandparents now have standing.  If both a parent and a grandparent have shared the care giving responsibilities, that is not enough to confer standing on the grandparent.  The six-month period must end no more than 90 days before the suit is filed.

If the child’s parents have died, the grandparents have standing to file suit.   This rule also applies to other relatives within the third degree of consanguinity.  That includes brothers, sisters, nieces, nephews, aunts, uncles, grandparents, and great-grandparents.

Finally, grandparents have standing if the parents consent to the suit.  This is actually a relatively common occurrence.  When parents are unable or unwilling to care for their children, they often allow the grandparents to have custody.  If the parents have essentially passed on their parental responsibilities to the grandparents, it is advisable for the grandparents to file suit and obtain a formal order.

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