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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Texas is a community property state.  All property acquired during the marriage that is not separate property is community property.  Each spouse shares an undivided one-half interest in all community property.  Examples of community property include wages earned during the marriage, retirement benefits earned during the marriage, real property purchased during the marriage, and any furniture or personal property purchased during the marriage.

Under the Texas Family Code, all property possessed by either spouse is presumed to be community property in a divorce.   Either party can rebut that presumption by establishing by “clear and convincing evidence” that certain property qualifies as separate.

Property is considered the separate property of one spouse if: (1) the spouse owned the property before marriage; (2) he or she received the property as a gift during the marriage; or (3) he or she inherited the property during the marriage.  However, any income earned on separate property is considered community property.

Characterizing community and separate property can be complicated if the parties have a lot of assets and one or both had assets prior to marriage.  However, an experienced family law attorney can help wade through the property issues to help determine how everything should be properly categorized.

Divorce

 

 

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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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Divorces in Texas are always granted on some sort of “grounds.”  There are seven different grounds for divorce under the Texas Family Code.

The vast majority of divorces are granted on no-fault grounds.  There are three bases for a no-fault divorce.  The most common is “insupportability.”  This basically means that the parties just cannot get along and that the marriage has become insufferable or intolerable.  A divorce can also be granted based on the grounds of living apart.  This is considered a no-fault ground and requires that the parties have lived apart for at least three years.  Finally, a no-fault divorce can be granted if one spouse is confined to a mental hospital.  That spouse must have been committed for at least 3 years and it is unlikely the spouse’s mental incapacity will end.  The mentally incapacitated spouse would be appointed a guardian ad litem.

There are four “fault” grounds for divorce: abandonment, adultery, cruelty, and a felony conviction.  Abandonment occurs when one spouse leaves the other for a period of at least  a year without the other spouse’s consent.  Adultery requires actual sexual intercourse between one spouse and someone outside the marriage.  A divorce can be granted on cruelty grounds when one spouse’s treatment of the other is so cruel that living together becomes unbearable.  Finally, a spouse can obtain a divorce on the grounds of a felony conviction if the convicted spouse was imprisoned for at least one year and has not been pardoned.  Fault grounds can be used as a basis for an uneven distribution of property.

Divorce

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The vast majority of custody orders, whether they be from a divorce or another custody matter, contain standard holidays as part of the possession and access schedule.  These are the holidays included in the standard possession order found in the Texas Family Code.  This is usually the case regardless of what schedule the parties follow the rest of the year (standard possession, expanded standard possession, 50/50, or some other type of schedule).

With “standard holidays”, one parent typically will have the following:

In even numbered years, from the time school is dismissed before the Thanksgiving holiday until 6:00 p.m. on the Sunday before school resumes.

In odd numbered years, from the time school is dismissed before the Christmas break until 12:00 noon on December 28.

In even numbered years, from 12:00 noon on December 28 until 6:00 p.m. the day before school resumes following the Christmas break.

The other parent would have the opposite for Thanksgiving and the Christmas break.

Spring break differs depending on how close together the parents live.  If the parents are living less than 100 miles apart, they will alternate for spring break.  If one parent lives more than 100 miles away from the primary residence of the child, that parent will get every spring break.

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Time and time again potential clients come into my office because of a child support issue and one of two scenarios is present.

Potential Client No. 1:  This potential client is the party paying child support.  He (or she) has lost a job or otherwise had a significant loss in income, and now this parent has accumulated a large arrearage.  He (or she) comes to me seeking relief from both the too-high current child support amount and the large arrearage.

Potential Client No. 2:  This scenario involves the other side of the coin.   The parent who receives child support comes into my office.  The other parent has been making significantly more money than when the child support was calculated and has thus been underpaying for months (or even years).  The potential client comes into my office looking to both raise the current child support amount and have the other parent pay extra for all that extra money he or she has been making.

Both of these potential clients are making reactive decisions about child support, and they are both going to be very disappointed.  The Texas Family Codes generally does not allow us to look back and adjust child support retroactively.   Potential Client No. 1 will most likely be stuck paying that large arrearage.  If he or she would have sought to amend child support immediately upon losing a job, the child support amount would have been reduced and no arrearage ever would have occurred.  Although the child support will be lowered going forward, this person will have to tack on extra each month to pay down the large arrearage.

Potential Client No. 2 will have the child support amount raised to the appropriate level going forward, but this person will not be able to receive any extra child support for years past.  If he or she would have sought to amend child support immediately upon learning the other parent had a new (higher paying) job, this person would have received significantly more child support over the years.

The bottom line is that it is critical to be proactive and not reactive when it comes to child support.  If there is a significant change in income, the loss of a job, the birth of another child, or any other significant event, one parent or the other should be filing to amend child support immediately.

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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.

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Child Protective Services (“CPS”) cases in Texas are covered by a relatively short timeline. The Texas Family Code provides that the case must be finalized within 12 months from the date of removal.  This may be more than twelve months after the child was taken from the home if the child was placed with relatives prior to the court case and the removal was deemed voluntary.  In that case, the timeline generally starts to run when CPS becomes the temporary managing conservator (“TMC”) of the child.  If a party can show “extraordinary circumstances.,” the timeline may be extended by an additional six months.

If the child is removed from the home and placed into foster care without a hearing, an emergency hearing must be held the first working day after the removal.   At the emergency hearing, the court decides if the emergency removal was appropriate.

Within 14 days of an involuntary removal, an adversary hearing is held to determine if CPS should be named the TMC of the child.   If the placement was considered voluntary, a hearing does not usually happen within 14 days.   The clock for those cases won’t start to run until the department has been appointed TMC.  Sometimes this occurs months after the child is voluntarily placed with a relative or friend.

For the next several months, the parties will report in to the court every 60-90 days.  The first hearing is a status hearing for the court to review the status of the case.  A case can involve several status hearings.  An initial permanency hearing is held approximately 180 days after removal.  At the permanency hearing, the court will review the status of services for the parties and the child, review efforts to locate a family placement, determine if it is safe to return the child to the parent(s), and otherwise review the status of the case.  A second permanency hearing is usually held around day 270.

Prior to trial, the parties almost always mediate.  If the case does not settle at mediation, the case will proceed to trial before the twelve month deadline passes (or eighteen months, in extraordinary circumstances).    At trial, the court will enter a final order that will either return the child to the parent(s), name CPS as the permanent managing conservator of the child, name a family member or friend as the permanent managing conservator of the child, or terminate the parent-child relationship.

Although twelve months can seem like a long time, it goes by very quickly in these cases. Parents are advised to begin working services immediately upon notification of a family service plan from CPS.  A parent’s failure to complete services by the deadline is generally not considered an extraordinary circumstances worthy of an extension.

Child Custody

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