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.

facebookcover

0

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.

facebookcover

0

Therapists often find themselves involved in child custody disputes.  Either the therapist was involved before the parents filed for divorce, or the parents or the court may identify a therapist to see the children during the midst of their pending litigation.  However a therapist may end up in your case, it is important to remember that they are there to help your children, and they are not there to help your litigation, though they may serve this roll as well at some point.

Therapists are rarely trained in their education to know what to do when faced with a family involved in active litigation, and because of this lack of training, well-meaning therapists will often find themselves in a position where they are either making custody recommendations on their own accord out of a perceived belief that they are helping your child, or they are asked by an attorney or a Judge to make a recommendation regarding a parent’s possession and access.  However, it has always been unethical for a therapist to make custody recommendations, and now, it is in violation of the Texas Family Code as well.

104.008 of the Texas Family Code, which became effective on March 1, 2016, specifically states that therapists cannot make recommendations for possession and access, though they can certainly testify to their assessments, their observations, and their treatment plan for their client.  In addition, a therapist’s ethical code also prohibits a therapist from making assessments of someone that they have not evaluated, and this is the reason that a therapist cannot recommend supervised access, for example, for a parent who they have never met or only met in the realm of a parent consult.

So, if you are thinking about identifying a therapist for your child in the midst of your divorce or modification proceedings, I would encourage you to identify a forensically trained therapist who knows these limitations and how to best help your child, and potentially your case, by maintaining those boundaries; while actively involving both parents.  However, if you already have a therapist involved in your case, be sure that they are not asked to provide a recommendation and that they are discouraged from doing so in order to ensure that the significant information that they do have to offer your case is not tainted by a recommendation that they cannot make.ChristySchmidt

Christy Bradshaw Schmidt, MA, LPC

christy small pic

Child Custody Evaluator/Expert Consultant

www.txfamilylawforensics.com

0

A right of first refusal is a common term included in many divorce and child custody cases.  I highly recommend to my clients that they request a right of first refusal.  A right of first refusal provides that if the parent in possession will be unable to watch the child for more than a certain period of time while the child is not in school (or sometimes daycare), that parent must give the parent not in possession the first right of refusal to care for the child.

For example, Mom and Dad have a custody order that provides for a right of first refusal if the parent in possession will be unavailable for a period of four or more hours.  Mom is scheduled to have the child this weekend, but Mom has to work this Saturday from 9-4.  Mom is therefore unable to care for the child for a period of more than four hours.  Mom must notify Dad and give him the first option to care for the child while she is at work.  Dad has no obligation to care for the child during that time, but he will get the first choice.  If he says no, Mom is responsible for finding someone else to care for the child.

Parents can choose any length of time for the right of first refusal.  Some parents choose four hours, six hours, eight hours, overnight, or even a period of several days.

stk204273rke

0

Texas courts favor residency restrictions in child custody orders as long as both parents have shown the ability to parent the child.    In general, if a non-custodial parent asks for a residency restriction, the court is almost certain to restrict the custodial parent’s residence to the county of the court plus the contiguous counties.  However, the residency restriction would state that if the non-custodial parent moves outside of the zone, the residency restriction no longer applies.  For example, if Mom and Dad get divorced in Collin County and Mom is awarded primary custody, Dad can request that Mom (and the children)’s residence be restricted to Collin County and the contiguous counties (the counties touching Collin County).  If Dad chooses to move to California or Houston or even Tarrant County (which is not contiguous to Collin County), the residency restriction would no longer apply and Mom would be able to move anywhere she wanted with the child absent a new court order.  (If Dad in this scenario were moving to Tarrant County, he could likely get a new residency restriction in place to avoid Mom moving far away.  That would require a modification proceeding and a new order.)

If parents are awarded a 50/50 custody schedule, then a residency restriction will be placed on the children. The restriction would require both parents to live within a certain zone, which could be the county and contiguous counties, or it could be smaller.  With a 50/50 schedule, the zone is often smaller because both parents need to be conveniently located to the children’s schools.

Residency restrictions are extremely hard to get around if the other parent wants to be involved in the child’s life.  If both parties agree, you can have an order entered without a residency restriction.  However, if the parties do not agree, the custodial parent is almost certainly going to be stuck in or near the county where the court case takes place.

CPS

0

Most (if not all) of the courts in Collin County require mediation before a trial in family law cases, including divorce and child custody cases.  Most courts in Dallas County and Denton County have similar rules in place.  Because I feel that in most cases a settlement is preferable to a trial, I almost always advise my clients to mediate, even if there is not a court order to do so.  When the parties cannot settle the case informally, mediation is a great tool to help reach a settlement prior to trial.  This saves the parties the financial and emotional costs of a trial.  In addition, the parties can agree to a variety of creative options in mediation that a judge could never order.

If your case is headed to mediation, your attorney should prepare a mediation statement for the mediator.  I always send mediators a letter explaining the issues in the case and where my client stands on those issues.  I set forth my client’s priorities and goals in the case and let the mediator know of any problems that I think could arise from the other side during mediation.  I also send the mediator the most recent offers made by each side, if offers have been made.  This helps the mediator jump right in at mediation without wasting time coming up to speed.

Mediation is generally a long and slow process.  You and your attorney will sit on one room and the other party and his or her attorney will sit in another room.  A neutral mediator will go back and forth between the parties to help facilitate a settlement.  Sometimes the mediator is in a room for fifteen minutes, and sometimes the mediator is in a room for hours.  Many mediations last a full day in family law cases.  Divorce cases with minor children usually take the longest because there are both property and custody issues that most be addressed.

The vast majority of the time my client is sure that the case has no hope of settling at mediation, and the vast majority of the time those same cases do settle.  Once a settlement is reached, the mediator will prepare a Mediated Settlement Agreement (MSA) for both parties and their attorneys to sign.  The settlement can dispose of all or some of the issues in a case.  The MSA is binding, and neither side will be able to change their mind later about the terms and back out.  After the mediation, one attorney (usually the petitioner’s attorney) will prepare a final order based on the MSA (if a full settlement was reached).  Depending on the type of case, one party may have to appear in court to prove up and finalize the final order.

Divorce

0

If you find yourself involved in a child custody case, whether in a divorce context or some other suit affecting the parent-child relationship, there are several issues to think about when crafting the holiday portion of your final order.  The “standard” holidays contained in the Texas Family Code only cover Thanksgiving, Christmas, spring break, Mother’s Day, Father’s Day, and the child’s birthday.  Most people celebrate a lot more holidays than that!

When you are thinking about a settlement in a custody case, take the time to consider all holidays your family considers important.  Is Halloween a big deal at your house?  What about Easter?  Does your religion celebrate other important holidays that the standard order does not include?  Does your family have a special tradition surrounding the Fourth of July or Memorial Day?   I often have clients who will alternate all of these important days, with one side having a particular holiday in even years and the other side having that holiday in odd years.  Sometimes one parent’s family places more importance on certain holidays, while the other parent’s family places more importance on others.  In those situations, the parent whose family goes all out for Halloween may have that holiday every year while the other parent, whose family has special Memorial Day celebrations, will have that holiday every year.

If the parties agree, the court will approve any reasonable holiday schedule. The key is just to remember to include everything in the order to avoid future problems down the road.  As always, the parties can feel free to adjust their schedule as needed as long as they are in agreement.

Halloween pic

0

Under the Texas Family Code, there is a mandatory sixty-day waiting period between when you file for divorce and the earliest possible day a divorce can be granted.  The only exception to this rule is if there is a protective order or a conviction related to family violence.

Even though day 61 is technically the first day you can finalize a divorce (without the family violence exception), the vast majority of cases take much longer. The only cases that are complete on day 61 are those that settle very quickly and usually involve relatively few issues.  For cases that involve disputes over property, debts or the children, cases can take a year or even longer to complete.

In general, cases that do not involve minor children tend to take less time than those involving children, but that is not always the case.  In cases that do not involve minor children, the length of time involved with the case is based largely on the amount of discovery that is needed to determine the property and debts at issue.  Can the parties exchange an inventory and appraisement and negotiate or mediate?  Do one party need to conduct extensive discovery into assets that the other party controlled during the marriage?  Does one party have a business that needs to be valued?   Is one party seeking an uneven distribution of the estate that requires evidence of fault grounds?  All these factors determine the length of discovery and when the parties can reasonably attempt to settle or try the case.

Child custody disputes often increase the length of time a divorce is pending.  Many counties in North Texas, such as Dallas County and Kaufman County, require a social study in a contested custody case.  (Of note, Collin County does not currently require a social study in custody disputes.)  Social studies can take anywhere from 3-9 months, depending on the agency conducting the social study.  It often takes a couple of months before the parties even reach the point of realizing that a social study will be required for their case.

After discovery is completed, if the parties are unable to reach an informal settlement, most courts require the parties to attend mediation.  Mediation is successful in a large percentage of cases.

If a case settles, it can still take a few months to wrap up the case.  One attorney (usually the attorney for the petitioner) will draft a final decree of divorce.  His or her client must then review and approve the decree.  The attorney then sends it to the attorney for the other side, who reviews it with his or her client and requests changes, if needed.  Decrees can be quite long in cases involving children (40+ pages is common), so it is a time consuming process for both sides to review and revise the decree.  Once the decree is finished, one party (usually the petitioner) will attend a prove up hearing with his or her attorney to finalize the case.  The divorce will be over that day.

When a case does not settle, the parties must have a trial.  The trial can be either a bench trial (before the judge) or a jury trial.  In my experience, a jury trial is very rarely justified in a family law case.   They are expensive, take additional time, and you really roll the dice with a jury.  How long the parties have to wait for a final trial depends on when someone requests a trial setting and how backed up the court’s docket is.

Divorce

0

Generally, a suit to modify the parent-child relationship can be brought at any time as long as a prior order is in effect.  However, if one party seeks to change the primary conservator within one year of the prior order, that party carries an additional burden.

Under the Texas Family Code, a party seeking to change the primary conservator within one year must file an affidavit in support of the change.  The affidavit must show one of the following:  (1) the primary conservator is seeking or consenting to the modification and the modification is in the child’s best interest; (2) the primary conservator has voluntarily relinquished primary care of the child for at least six months and the modification is in the child’s best interest; or (3) the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development.

This additional burden is designed to keep people from running back to the courthouse constantly to change custody arrangements.  After a year has past, the affidavit is not necessary and either party can file for any reason or no reason at all.

child custody pic

0

Many Texas counties have “standing orders” that apply in every family law case filed in that county.  Dallas County, Collin County, Denton County and Kaufman County all have standing orders.  Tarrant County for some reason does not have a standing order in family cases as of the date of this post.

Standing orders set forth the ground rules while the case is pending.  In divorce cases, they prohibit parties from altering or selling property, or for spending money for anything beyond normal living expenses and legal fees.  In custody cases, standing orders can include provisions prohibiting you from moving the child’s school or prohibiting you from having an unrelated paramour spend the night while the case is pending.

When suit is filed, the standing orders must be attached to the original petition.  Although each county’s standing orders are similar, they do have their unique differences.  Therefore, it is very important to read the standing orders for your county.  For example, at the time of this post, Denton County’s standing orders require parents in a divorce to complete a parenting class within 60 days of the filing of the divorce petition.  Collin County used to have a similar requirement, but it no longer does.

Standing orders can eliminate the need for a temporary orders hearing in many cases because the court already provides many of the orders you would be seeking.  However, if you wish to do something against the standing orders, you need either the agreement of the other side or a court order allowing you to do so.

Areas of Practice pic

0