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

Typical temporary orders related to children in either a divorce or custody case include: (1) designation of conservators as either temporary joint managing conservators or temporary sole managing conservator / possessory conservator; (2) the possession schedule 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.  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 other counties, such as Dallas County and Denton County, you are often given significantly more time for a temporary orders hearing.

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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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The Texas Family Code provides specific schedules for a standard possession order and an expanded possession order in custody cases.   These schedules apply to children who are three and older.  Although parties often agree on schedules that vary from the typical standard or expanded standard possession schedules and judges occasionally order something different, these two schedules are very common for children three and over and such schedules are presumed to be in the children’s best interest.

Unfortunately, the Family Code does not give us any particular schedule to use with children under three.   The Family Code instead gives factors to consider in determining an appropriate schedule for children under three, including: (1) the caregiving provided to the child before and during the current suit; (2) the effect on the child that may result from separation from either party; (3) the availability of the parties as caregivers and the willingness of each party to personally care for the child; (4) the physical, medical, behavioral and developmental needs of the child; (5) the physical, medical, emotional, economic and social conditions of the parties; (6) the impact and influence of other individuals who will be present during periods of possession; (7) the presence of siblings during periods of possession; (8) the child’s need to develop healthy attachments to both parents; (9) the need for continuity of routine; (10) the location and proximity of the residences of the parties; (11) the need for the temporary schedule to gradually move towards a standard possession order; (12) the ability of the parties to share in the responsibilities, rights and duties of parenting; and (13) any other evidence of the best interest of the child.  Texas Family Code Section 153.254.

As you can see, the court has a lot of discretion to use a variety of factors when crafting an appropriate schedule for children under three.  Many times schedules for younger children will involve more frequent but shorter visits with the non-custodial parent.

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Many people use the term “custody,” but custody is not actually a term you would find in a Texas order.  The order will discuss conservatorship (rights and duties) and possession and access (the schedule).  When most people say “custody,” they are thinking about the schedule.

A large number of custody arrangements involve a standard possession order.  With a standard possession order, the noncustodial parent (the parent who does not have primary custody) would have the child for the first, third and fifth weekends of the month (usually from Friday at 6 pm until Sunday at 6 pm), one evening during each week (usually from 6-8 pm), every other holiday and thirty days in the summer (42 days if the parties live more than 100 miles apart).

Now many families opt for an “expanded standard possession order,” which gives the noncustodial parent the first, third and fifth weekends from Friday after school through Monday morning and every Thursday overnight.  It includes the same holidays and summer schedule as above.

Some families opt for a true 50/50 possession schedule, with each parent having the children half of the time.  Some people choose a week on, week off schedule.  Others split the week such that one parent has Monday and Tuesday, another has Wednesday and Thursday, and they alternate weekends.

If the parties are going to agree, they can basically choose any possession schedule that works for their family and a judge will approve it.  If the parties are not going to agree, my experience is that most judges will opt for either a standard possession order or an expanded standard possession order.

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As I mentioned in my post on temporary orders hearings in Collin County, temporary orders are needed fairly often in family law cases.  They address how property, custody and child support issues will be handled while the case is pending.

Temporary orders hearings in Dallas County are quite different from those in Collin County.  If your case is placed on the standard docket, you will be set at either 9:00 or 1:30 along with several other cases.  The judge will go through the docket and establish how long each hearing will take and prioritize the docket based on that information.  If your hearing will take too long, you will be specially set for another day.  If you are “specially set,” then your hearing will be the only hearing set during that time frame.

Dallas County courts do not typically set specific time limits for temporary orders hearings. However, if you tell the judge your hearing will last a certain amount of time, they will often hold you to that.   I have had temporary orders hearings last thirty minutes, and I have had temporary orders hearings last all day.  If I know a hearing will take longer than thirty minutes, I will try to get the hearing specially set right off the bat.  This will save time and money by eliminating the need to show up for a hearing where there will not be time for the judge to decide your issues.

The temporary orders hearing works much like a mini-trial.  The attorneys will usually give a brief opening statement.  Then the Movant (the party who brought the motion for temporary orders) will call witnesses.  The Movant’s attorney will ask direct examination questions and the other party’s attorney will cross examine the witnesses.  After the Movant has called all of its witnesses, the other party will call its witnesses.  When both sides are finished, the attorneys will give a brief closing statement.  The judge will then enter a ruling.  I always present the judge with a Summary of Relief Requested at the start of any temporary orders hearing.  This way the judge will know exactly what relief my client is requesting.

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