Today I was just about finished writing a very exciting blog post about student loan debt in divorce when my phone rang.  I stopped writing to speak with opposing counsel in a custody modification case.  She called to give me the sad news that her client was killed in a car accident yesterday.   It got me thinking about how much we all take for granted that we will make it home safely every time we set out on the road.  We also take for granted that the other people in our lives will all make it home safely, too.

In dealing with child custody cases on a daily basis, I see many parents who love their children more than life itself but who truly despise the other parent of those children.  (To be clear, that was not the case in the situation today, but it just got me thinking in general.) Some disputes are huge with very legitimate concerns, others are small with much more minor concerns.  Today a new concept entered my mind that really had never occurred to me before when thinking about child custody litigation.  At the end of the day, how would your child feel if the other parent were suddenly gone forever?   In the end, we all love our children and want what is best for them.  In the vast majority of cases, it is best for the child to have a relationship with both parents.  Treating your child’s other parent with kindness can really go a long way towards accomplishing that goal.  I think if most separated parents would treat their ex with kindness, it would make a huge impact on their children.

For those of us who are married (or with the other parent of our children), we can use this reminder, too.  Have you ever said something unkind about your spouse in front of your children?  Have you gone to bed annoyed at your spouse for not doing the dishes?  I am choosing to use this reminder to show kindness to the father of my children, especially in front of my children.  I pray that I never have to be their only parent, but if the unthinkable ever happens, I would hope that being kind to their father now would result in a better long-term outcome for them.

While we’re at it, we can all probably use a reminder to show kindness to our children and our parents.  I certainly don’t want the last thing my daughter remembers about me to be yelling at her for making pancakes at 5:45 am this morning (true story).  Hug your children a little tighter and show love and kindness to everyone (even when they may not seem to deserve it), since we never really know what tomorrow may hold.

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It is important to meet with an attorney to determine whether temporary orders are necessary in your family law case. Depending on your county, you may have Standing Orders that govern the conduct of the parties while the case is pending. Standing Orders are binding on the parties immediately and continue until the case is finalized unless specifically modified by the court.

Temporary orders can be very helpful in setting the tone for the case and making sure certain issues are presented and ruled on early on. Temporary Orders are not effective immediately and must be requested by a party. Hearing dates will be set according to the court’s docket and how full the calendar is.

Temporary orders can be entered in any family law case to govern what will happen with various aspects of the case while it is pending.  Temporary orders can relate to child(ren), property and financial matters, including bank accounts.

Typical temporary orders related to children in either a divorce or child custody case include: (1) designation of conservators as either temporary joint managing conservators or temporary sole managing conservator / possessory conservator; (2) what the possession schedule will be for the child with each of the parents; and (3) whether child support will be paid and, if so, how much.

Examples of additional financial matters to consider for temporary orders in a divorce case are: (1) who will get primary use of the marital residence; (2) how community bills are going to be paid during a pending divorce; (3) whether or not one party will pay temporary spousal maintenance to the other; and (4) who will get primary use of any vehicle(s).

Temporary orders can also govern how the parties treat each other while the case is pending and what is said or done in front of the children if the county’s standing orders do not already do so.  Temporary orders can either be reached by agreement, or they can be ordered by a court after a hearing.  Temporary orders hearings are like mini trials.  In Collin County, temporary orders hearings are limited to twenty minutes per side, which can really limit what you can do.  In Denton County, temporary orders hearings are typically limited to thirty minutes a side. In other counties, such as Dallas County, you are often given significantly more time for a temporary orders hearing.  (Post by Soheyla Dixon)

Divorce

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After a final order is entered in a divorce or child custody case, there may be reasons down the road that one party or the other wishes to modify the order.  The Texas Family Code provides four grounds for modifying a child custody order:

  1. The parties have agreed to the terms of the modification and the court finds it is in the best interests of the child;
  2. A child 12 years old or older expresses to the court in chambers who the child would prefer to be the primary parent and the court finds it is in the best interests of the child;
  3. The primary parent has voluntarily relinquished primary care and possession of the child to another person for at least six months and the court finds it is in the best interests of the child; or
  4. The circumstances of the child, a parent, or another party affected by the order have materially and substantially changed since the earlier of the order was rendered or the settlement agreement on which the order was based was signed, and the court finds it is in the child’s best interests.

As you can see, all of the grounds require a finding by the court that the modification is in the best interests of the child.   There are a variety of factors courts consider in determining best interests.  In my experience, when the modification is based on the agreement of the parties, the court typically approves the agreement based on the parties’ representations that it is in the child’s best interest.  The court has to dig deeper into this inquiry when the parents are do not agree about a modification.

The standard for modifying a custody order is higher if a conservator wishes to flip who has primary custody (change the conservator who has the exclusive right to designate the primary residence) within one year of the prior order.  In that case, the party requesting the change must file an affidavit showing that the child’s present environment may endanger the child’s physical health or emotional development.  If the court does not believe the affidavit meets the burden, the court can dismiss the modification without ever holding a hearing.  This rule exists to try and keep parties from constantly going back to court.

In order to determine whether or not your specific circumstances would warrant a change to your child custody order, speak with an experienced family law attorney.

CPS

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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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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

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Child Custody Evaluator/Expert Consultant

www.txfamilylawforensics.com

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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.

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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

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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

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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.

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