Transcript

Adam Dietrich: There are certain things in life that you should do together for your children and medical care and medical treatment and their education are at the top of that list in my opinion.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: Today we’re excited to welcome Adam Dietrich the Texas Family Law Insiders podcast. After graduating from law school in 2008. Adam was licensed to practice law in Texas in 2009. Adam is board certified in Family Law by the Texas Board of Legal Specialization and practices exclusive family law, including child custody and divorce cases. He’s a partner at Jenkins and Kamin in Conroe, Texas.

Adam is a fellow of the American Academy of Family Law Specialists and serves on the State Bar of Texas Family Law Section Council. He’s authored and presented many continuing education presentations, as well as directed courses in continuing legal education. Adam has served on his local school board and numerous other philanthropic ventures. He’s been married to his wife, Kristy, for 16 years and they have three amazing children. Thank you so much for joining us today.

Adam: Thank you for having me, Holly.

Holly: So why don’t you tell us a little bit about your background?

Adam: So like you said, I graduated from college, I went to Sam Houston State University, graduated from there with a psychology degree went straight into the workforce. And I was a law clerk working for an attorney that practiced criminal law, excuse me. And I worked for him for about five years or so and then went to law school. About three years in I thought to myself, you know, I think I can do this as well, some of these people in this courtroom. And so that’s kind of what drove me to go to law school. And then went off to law school in Michigan came back and started practicing. Got licensed in ’09.

Holly: So how would you describe your current practice?

Adam: We practice at my firm exclusively family law. We have three offices throughout the Houston area. I run the Conroe office. And we practice, like I said, just family law. All elements of it. Divorce child custody, enforcements, you name it. So, but that’s our only area of practice.

Holly: So I noticed that you used to be on the school board. And I’m very intrigued by that. Because right now school boards, at least where we are, I mean, meetings are insane, people are fighting about everything. Sounds like you may have been pre-COVID on the school board. I’m curious how that experience was.

Adam: So well, both. So it was pre-COVID. And then during COVID. And of course, that was wild and crazy in March of 2020, when kids didn’t go back to school after spring break. But I I know, my wife’s an educator, she is in administration now, started off as a history teacher. And, you know, I look back on it now and seems like that a lot of my life converged on helping families and children. And so I wanted to I wanted to help. I had the time and I decided to be on the school board, it was incredibly rewarding. We got to do a lot of great things, got to build some schools, got to really assist the school district in providing excellent education in our small community here.

And so between the School District, or being on the School Board, I should say, and practicing family law, I really feel like that my life has just kind of converged in all families and kids. And so it was a very rewarding experience. It was challenging, and yes, really trying to get caught up very, very quickly during COVID to make sure that we could try to continue kids’ education was a, it was difficult, but we pulled it off pretty well I think.

Holly: So today we’re going to talk about something that I think a lot of family lawyers assume they understand and assume that oh, that’s just the basics. And we’re gonna follow, you know, do what everybody else is doing and what everybody’s done forever. And that’s specifically related to rights and duties. And I think a lot of lawyers don’t realize that we can get into some trouble with rights and duties if we ever want to enforce anything. So why do you think this is such an important topic for family lawyers to think about?

Adam: So you know, us as parents, natural parents have the rights to do important things in our kids’ lives and make important decisions just by the nature of us being parents. When there’s a child custody case or divorce with child custody case involved in it. Those important decisions need to be delineated in some fashion such that kids can get the help that they need from their parents and they can get important decisions made one way or another.

And so there’s a lot of these rights, we’re going to go through some of them here in a little bit. But the you know, the important rights, like being able to make sure that your kids get the medical care that they need, or that maybe they don’t absolutely need but it will improve their quality of life. The right to make an important decision have in education, psychological psychiatric. These things have to be put down on paper so to speak, so that the parents know who gets to make which decision and how those get made.

And we all hope that they are able to get along and do it together. But as we know, if that were the case, we probably wouldn’t have jobs. And so setting these decision-making abilities is vitally important. And the topic of the paper that I presented on in August and the topic that’s our podcast today talked about how do we do anything, when you have one parent who is not doing what they’re supposed to be doing. Or they’re usurping the authority that the other parent has in making the decision.

Holly: So you mentioned the paper from August, and in case people are listening to this podcast at some unknown time in the future, he’s referring to a paper that he did at Advanced Family Law in 2022. So if you want more information at the end of this podcast on this topic, you’ll be able to go find that in our state bar library. So can you give us a little bit about the history of rights, powers, and duties in Texas?

Adam: Sure. So, very late 60s, the Family Code was, it was originally codified. And it’s really it’s set out a what I what I would consider to be a historical thought and perspective on parenting duties. More of a traditional set. You have the one parent who basically makes all the decisions. And the other parent had a certain duties, duties to take care of children and provide them food, clothing, shelter, and things like that.

But it was very limited in the sharing of rights and duties. And as the legislature proceeds on over the next decade, decade and a half or so. The idea of joint managing conservatorship comes into being and more of a steering of the decision-making amongst kids and all the way up to about 1985, excuse me, 1989, when the standard possession order was final and codified. And really gave family law practitioners back then really just some guideposts to start thinking about what it looks like in making decisions for kids.

And later and later, again, the 90s it was the presumption that parents were going to be joint managing conservators, which exists today was codified. And so there have been some small iterations since then. But that really was a turning point in our world when it comes to making decisions for kids.

Holly: So as we sit here today, what are the rights and duties that a parent generally has?

Adam: So generally, parents have rights and duties that would be like you would think. Kind of what we talked about already. The right to receive information from the other parents regarding health, education and welfare, the right to receive information, the right to confer with the other parents. Have access to medical, dental, and psychological records. Consultant with physicians, the school. Have doctors, the right to attend school activities, and the right to consent to medical treatment involving an emergency. And these are the rights that parents have at all times.

Holly: So how can conservatorship be that both parties are joint managing or we have sole managing possessory, how does conservatorship impact rights and duties for parents.

Adam: And so like we talked about in the just a bit ago about joint managing conservatorship, there are certain rights, that we’ll get into here a little bit that both parents are given if they’re appointed joint managing conservators. And I actually just mentioned some of those rights, but the whole idea I believe, that the legislature had when they enacted the joint managing conservatorship statute was that the sharing of these rights and duties is impairment and paramount to to raising children together and to help to try to establish a co-parenting relationship.

Such that, I think, such as the children can see that both parents are involved in their lives and have a safe setup. And I think from a parent’s perspective, back to having the stated delineated rights, puts them in a position to be able to say, hey, you know, I want to be a part of the process, I want to be a part of deciding whether or not my kiddo’s tonsils get taken out or whether or not they get vaccinated. And so I think that that iteration of the joint managing conservatorship really put parents much more equal footing than, say, a sole managing conservatorship, which, of course, still exists in our practice of law today.

But that gives exclusive rights, very important decision to the sole managing conservator, and away from the other person who we call the possessory conservator. And the possessory conservator will typically have very limited rights to make decisions, but still have a lot of the same rights regarding notification and being informed about significant events in their children’s lives.

Holly: So I know occasionally I think it’s pretty rare, at least from what I’ve seen, we have a parent that’s not appointed as a conservator at all. Usually they’ve done something pretty awful. Or they’re completely out of the picture. And therefore, they are not appointed as conservator. Does that parent retain any rights at all?

Adam: Well, so the court can limit a parent’s rights and duties and I believe, anyway, that even if the court doesn’t appoint someone a conservator, they could give them some limited rights. That may, I might change my opinion about that with further research, but I’ve been of the opinion that that’s the case. And I agree with you, someone has to do something pretty bad not to even have the right to receive information about their kids. And it will be the things that you and I would expect. You know, severe drug abuse, alcohol abuse, domestic violence, things like that. And it is very rare, I agree. But I have seen it for sure.

Holly: So in a typical order, what rights and duties do both parents have at all times?

Adam: I think I jumped the gun on you on this one just a little bit a while ago, but I talked about a few of them. And so obviously, parents communicating with each other is vitally important. And in a good co-parenting relationship, then they would give information back and forth regarding significant events involving their child’s health, education and welfare. I mean, I call it just the standard, the standard things that parents should do. I talk to my wife about my kids schooling all the time. And, and so that along with the right to confer with the other parent, right to receive information, right to have access to medical records, dental records, and educational records.

And where I see that particular right used the most and maybe you do too, is when we have two parents that don’t get along, and one parent wants to go to school and get a school record or go to the doctor and get a doctor’s records. And so that one I actually see used a lot, a lot more than some of the others. Talking to doctors consulting with school officials, kids in school activities. And you’ll remember probably that one changed. And there was used to be a huge fight in my county with five different school districts, whether or not a parent not during their time could go have lunch with our kiddo.

And interestingly, we had I had talked to the attorneys for all five school districts and three of them said, I don’t care. The parents should be able to come see their kids school and have lunch with them. The other two did not. And so thankfully, the legislature kind of normalized that for all of us, it took that fight out of the out of the picture, because it was people would spend an awful lot of money fighting about that, and things like that. And so I’m glad that we took care that too. The right can be designated as an emergency contact.

I’ve seen this one probably left in and taken out in so many conservatorship cases. Because and also the one before that, too, because you have someone who has supervised only visits. You don’t want them to be exercising outside of what the court has given them. But also the right to consent to, I’m sorry, the right to be designated as an emergency contact. If you have someone with supervised visits only, you don’t really want that person to be contacted to come pick up Junior, because they’re not supposed to be doing that anyway. The right to consent to medical and dental and surgical treatment during an emergency.

Well, that just makes sense, doesn’t it. Being able to take your kids to the doctor if they break their arm without having to go talk to the other parent first. And they go, that goes hand in hand with the other duties that are listed out. The duty to inform the other parent about significant events involving health, education and welfare. And then of course, the right to manage a child’s estate to the extent that it was created by that person or that person’s family. If dad starts a 529 fund or his parents do, the grandparents, then someone should have the right to control that. One of the parents

Holly: And then we have another breakdown of specific rights and duties for what a parent would do when they have the child during their period of possession. Can you talk about those a little bit?

Adam: Sure. And these are more of the hey, go be a good parent client duties and rights, and take care of your kiddos. And the right, the duty of care, control, protection and reasonable discipline of the child. Take care of your kids. That’s, I really do my very best to try to, I hate to say, use the term dumb things down for people but just speaking plain language. So I think that that’s just being a good parent. Duty to support your child and providing food, clothing and shelter, that makes total sense right.

And the right to consent for the child to medical and dental care not involving an invasive procedure. Now here we are again with a third different type of a medical right. And this one is okay your kid’s got a cold. He needs to go to the doctor and get some medicine and so of course parents should have the duty and the right to do that, as well. We’ve dealt with the right to direct moral and religious freedom to the child. I don’t really see this one fought about very often. I have had some cases where the parents were of two different religions.

And they were, and it got so far, so they couldn’t come to an agreement, how they’re gonna raise a child. So they were raising their child with two different religions, in two different households. And I think that that’s, that’s a difficult position for a kid to be in. I’ve never really sat down, I’ve done some Amicus attorney work. And I’ve never had that role in talking to children about how they feel about those types of things. But I think that I can see that there would be a concern with that, with that right, in kids going in different households.

Holly: Yeah, it’s been a little while since I saw a fight about that issue. But I think for a lot of people, it’s really important. And it can be the reason they split up to begin with was difference in religious views. So then how are they going to deal with that was their child?

Adam: Absolutely. You know, I saw I had a case where the parties were the dad, they got married, and the dad was a was an Orthodox Jew, and the mom converted to Judaism. And when they got divorced, dad moved towards Christianity, and mom stays as an Orthodox Jew. And so it really, it really taught me to call the divorce, quite frankly. And then it calls this, that’s where the last place I saw this particular right come up. I can imagine how difficult that is, with the for the kids with the parents not being able to reach some sort of an accord in that situation.

Holly: So, we already touched on this a little bit, but I think it’s worth going back and talking about it a little bit more specifically, the duty to provide information to the other side. I’ve seen this come up a lot as a problem where people don’t, especially when they have they have a lot of conflict, they can’t communicate well with the other side. Every time they do give information, it’s a problem. And so they don’t want to provide information. And I think the you know, standard language is written in such a way that it’s supposed to tell people what to do. But I don’t know that really does a very good job of that.

Adam: I agree. I think that we’re what the code does a good job of is, is making sure that parents understand that they have specific some things that are very specific, and you have to tell the other parent about which is cohabitating with someone who’s a registered sex offender. There are notice provisions in that as well as someone who’s the subject of a protective order. Or a parent residing or being around someone who is, and this is fairly new, obviously, apparently but apparently, excuse me.

And so those are incredibly important. I mean, and I have seen this come up where someone resides with a sex offender. One of the searches that we do, whenever we’re staffing a case, and there’s a paramour on the other side, or even my client’s paramour. It’s probably come up a handful of times in the last 14 or 15 years. But I think that that is that’s information that parents need, no matter what you think about the other parent. These are your kids, and so you should definitely have the duty to disclose that information and have the right to receive it.

Holly: And one of the examples of something that I’ve had a parent not want to disclose is related to okay, you know, Johnny has an annual checkup at the pediatrician. And they don’t want to tell the other side about it because they want the other side to show up and cause a problem. And then they don’t want to tell the other side that it happened because they don’t want to cause a problem for not telling them to begin with. When there was nothing particularly noteworthy about the appointment. It was just a checkup, everything was fine. And they say, well, that’s not significant information. What would you tell a person that was having that issue?

Adam: I think that anytime, I think. Anytime a child goes to the doctor that’s significant. If a child has a runny nose, and you’re orlow grade fever, and you’re giving them Motrin, or what have you now is that significant? I think that’s probably a different story. But I mean, I go to all my kids’ doctor’s appointments and I like to know what the progress is if we’re talking about a well child checkup and what their growth is. And, and I think that, I think the parents should do that if they can.

And the parent who’s concealing that information or what happens there, I think that’s probably an indicator of a much bigger problem, usually. And, but it’s man, I said it a while ago, and I say it tongue and cheek, but it’s unfortunately true that parents just, when they can’t get along, if it affects the kids. And it’s guaranteed. There are certain things in life that you can do together for your children and medical care and medical treatment and their education are part of that list in my opinion.

Holly: I agree 100%. So let’s go through some of the rights and duties individually that we see all the time, obviously in our practices, but what some of the problems are and what some of the issues are that maybe we can help fix in how we’re crafting orders. The first one, and I think this is one of probably the most highly litigated among the rights and duties is the right to designate the primary residence. Talk to us a little bit about that.

Adam: Sure. So this is what you know, in Texas family law jurisprudence, we don’t use the term custody, we use the term conservatorship. But this is what people call custody. This is what I always tell potential clients would come in my office is that you don’t want custody, you want the right to know where Junior is gonna lay his head down at night most of the time. And so I agree with you, it’s absolutely the most litigated rights in our world in custody litigation.

So and it’s also further complicated even more recently, now by what that looks like with the geographical restriction. And what we’re talking about is, like I said, where does kiddo lay his head most of the time and what does that look like, outside of what does the possession schedule looks like. It at all ties in runs in together. But you’ve been again, complicated by the geographical restriction, you know now is under 50 miles, 50 to 100 miles, and then over 100 miles.

Voiceover: This episode of the Texas Family Law Insiders podcast is sponsored by the Draper Law Firm, providing family law appellate representation for non-parent custody cases, jurisdictional issues, property division, standing, conservatorship, possession and access, termination, parental rights, and grandparent access. For more information, visit draperfirm.com, or call 469-715-6801.

Holly: So another one that can cause disputes is the right to consent to invasive procedures. What constitutes invasive?

Adam: So I think that that’s still subject to interpretation. And prior to this podcast with you today, I’ve asked that question, we’ve researched it some. I don’t think there’s an absolute clear cut answer. The health and safety code gives a definition. It’s kind of long. But I’ve seen some courts of appeal that kind of, that cite this obviously. And an invasive procedure means a surgical entry into tissues, cavities, or organ for repair of major trauma or traumatic injuries associated with any of the following, operating or delivery room emergency department, cardiac catheterization, vaginal or cesarian deliveries and manipulation, cutting, removal of oral or perioral tissues, including tooth structure and things like that.

And so, I have described this as if it pierces the skin or if it pierces a body cavity. And so, but it certainly subject to interpretation. I have a case, I had a case where the one of the parents believed that a young child a three or four-year-old child was constipated a lot, and was giving that child a suppository. Is that an invasive procedure? And I don’t know, I don’t know. And, of course, the big one, right, since March of 2020 and thereafter, is COVID and COVID shots. And this, obviously, you’ve seen litigated a lot. And I don’t think that there’s a bright line rule for it. Now, I have filed temporary restraining orders, and I’ve had some judges grant them.

They’ll go in and have the hearing about whether or not the kids should get, you know, have the vaccination. I have litigated the issue, and had judges, I’ve had them both ways. I think right now, just depending on your fact is on that issue. But if you look at the, I think if you look at the definition from the health and safety code, does a vaccination, is it a surgical entry into tissues, cavities or organs. I think it is, but you know, I’ve also litigated dental work, and tubes in ears and things like that. And so I think that there’s a lot of still a lot of law left to be made by the courts of appeals involving of this particular right.

Holly: Yeah, I agree. And with the way it currently is, judges have so much discretion. So really, when parents can’t agree, you know, should we get our kid the COVID vaccine? Mom says yes, Dad says no. It’s how does your judge feel about it? And that’s what’s going to happen. And I don’t think that’s right.

Adam: I agree. Some standardization of that would be most helpful to parents in Texas, and to us and our ability to try to make, help our clients make good decisions about these things.

Holly: So another one we see a lot is the right to consent to psychological and psychiatric treatment. Talk to us about that one.

Adam: Sure. I you know, I mentioned I have a psychology degree. I say that it’s a bachelor’s degree so it qualifies me for nothing in the psychological world, except that it gives me a social-minded approach to social science mined approach to things. I think I never could have guessed as a young man, prior to becoming an attorney, how often kids would see counselors and therapists who need psychotropic medication. And then in our world, I don’t know about you, but it’s probably one out of every three cases that I have, that kids are in counseling or need, you know, they have problems like ADHS, and things like that.

And specifically ADHD and the medicating are the same, or therapy. That comes up quite a bit. Do we do that? Or or do we not? Or do we use some sort of counseling or therapy? It does come up a fair bit. And so I think that whenever you have a child’s mental health at issue, and you have parents who are warring with each other, I think the child just suffers, in my experience, and what I’ve seen whenever the parents either can’t make those decisions, or don’t have a vehicle by which to which to cone their resolution.

Holly: And so with both invasive medical, and, you know, right to consent to psychological and psychiatric treatment, a lot of times what we see people putting in orders is a some sort of a tiebreaker. And what are your thoughts on including tiebreaker language versus giving the right to somebody exclusive? I know, it can be a deal breaker for people where we’re not going to settle unless I’m included in this right. And I think that’s why people include a tiebreaker. What do you think about that?

Adam: So, yes. Over the years, I think that my, the language that I’ve used when making tiebreakers has kind of evolved. We used to say, you guys have the joint right to make this decision. And the tiebreaker is the pediatrician. And I think I think we probably even early on, we’ve to put that language, like kind of like that. It’s evolved over the years now. So let me back up. And so one of the things that I ended up seeing was, I actually had a doctor call me one time and say, look, I know what this order says.

But I’m not doing it. I’m not making this decision. And so calls like that, as well as the some other rights like education, things like that. These third parties, you don’t want to feel like that they have the responsibility to make the decision. But what these third parties do all the time, they make recommendations. I take my kids to the pediatrician, I say, Doc, what do you think about the COVID vaccine? Doctor says I recommend that you know, get the COVID vaccine.

But now when we write our orders, we say you will follow a doctor’s recommendation. So now and make that an order. And so now the doctor is not in the middle, so much, because he’s doing the exact same thing or she’s doing the exact same thing she would have done before, but the parties are now bound by that. And so that’s still currently how I draft joint rights, the joint right to make medical decisions.

Holly: So the other big right that we see litigated a lot, I would say is the right to make educational decisions. And I’ve heard a lot of talk about why educational decisions need to be exclusive to one parent or the other. And problems there are if parents don’t agree that a no from one parent means a no for all. Tell me what your thoughts are on that.

Adam: So, you know, the right to make educational decisions includes a component of choice of school, and kingdom, I should say. And it also ties into geographical restriction. And I don’t see this litigated too often. Choice of school, obviously, but not so, for instance, if a child needs to be, some of the tough topics that can come up are whether or not a child needs to participate in 504 services, whether or not they’re going to be in AP or dual credit classes.

Whether or not they’re going to be held back. Whether or not they’re going to go to private school, public school, things like that. Those are some of the topics that I’ve seen litigated over the years or are certainly that were an issue. And if you’re doing joint managing conservatorship, and you’re doing the joint right to make these educational decisions, then what I’ve done in the recent past over the past five or six, eight years or something like that, is again, just like with doctor’s, we used to say go follow the recommendation of the school counselor.

Well, I had a case one time where that was what it said. And I subpoenaed the counselor from the school district and she came down to the courthouse when we were all standing outside the courthouse or the courtroom. And I said okay, so what do you think? What’s your recommendation? She goes, quite frankly, it doesn’t really matter what I think or what I say. Because we don’t do that. You guys put the stuff in the order without ever talking to us. And what we do is we get together with this child’s teacher, principal on the campus, and then the counselor or anyone else that we think is important.

We put a committee together with the child depending on their age, obviously, then we make the decision. And so that was the, a lightbulb went off for me. I’m like, wait, we’re a whole bunch of really smart people, otherwise you wouldn’t be lawyers. And so why in the world, were we putting this information in an order without having consulted with these education, educational professionals. And so now, the language that we use is that the tiebreaker is the school district by the formation of a committee, as determined by the campus administrator, I think a couple different iterations of the language.

But really trying to mimic what that counselor told me that day, because really they don’t. One person who’s not a parent of a child doesn’t wanna have to make a decision that affects that child. That’s the parent’s job. And so I like the language with our parental rights and educators and they appreciate what that as opposed to what we were doing before. So that’s kind of where, over the years, my drafting of that issue has gone.

Holly: Well, I like that. I’m not I’ve never heard that way of drafting it before. So I think we’ll, we’ll need to, I may need to borrow your language.

Adam: Of course.

Holly: Okay, so, shifting gears a little bit to talk about enforceability related to rights and duties and powers. Are the rights and duties as written in the Texas family law practice manual enforceable?

Adam: No.

Holly: Why not?

Adam: Very short answer. No. And without getting too deep in the weeds of our case law and ex parte slavin is how I’ve always I pronounced it I heard people say slaven, which is the case from the from the late 60s. When orders are drafted, they are supposed to be drafted in such a way that they include order language, or decretal language, or command language, as we call it, such that a person is put on notice of what their duties are, what the court has told them they are supposed to do. Our rights and duties, don’t, they don’t have any of that.

And so there’s the two main things that that we enforce. And the whole goal is to get teeth to what the court is saying you’re supposed to be doing. By teeth I mean, can I get someone in trouble because they didn’t, because they went and got a COVID vaccine when it was a joint right and the other parent wasn’t notified. How do I stop the one from doing that? And so right now, the way that the Texas Family Law Law Practice Manual states that we graph these rights and new, there aren’t any teeth.

So obviously, there are two things, two big things in family law that we certainly can do something about when someone’s not doing what they’re supposed to be doing. You can pay your child support, or you can go to jail. You don’t turn your kid over when you’re supposed to and return the kid when you’re supposed to, you can go to jail. And so my thought in developing this topic was why don’t, why aren’t the rights and duties that way too. If it’s if it’s so important, if the trajectory of your child’s life can be changed by an educational decision, eventually changed, why can’t we stop someone from making those bad decisions.

Now the be all and end all if we file a modification, ask for custody, and you know, ask for exclusive right, but once the damage is done, how do we stop that from happening? And so that’s kind of where I started with, with this topic. And so putting that command language, or finding a way to put some sort of command language into these rights and duties is kind of where I ended up. And I think it’s possible, I’ve talkd to some of the brightest minds in our world. And I think and there’s some, I have some examples of that. And I don’t know if we’ll catch on or not, but I share this information with the people who drafted the form book.

And the committee that does that through the State Bar, Family Law Section, and maybe it catches on. It’s gonna make our 40 some odd page divorce decrees, you know, 50 some odd pages probably because you know, because we have to have that language. I think it has to be with every single right, there has to be a section that puts this command language in such that a court can hold someone in contempt for not following, for not doing what they’re supposed to do.

Holly: You know, I never thought about before but in listening to you talk about that. If I’m looking through the family law handbook or something for information on enforcements it lists a section for enforcing child support, and it lists a section for enforcing possession and access. And it doesn’t talk about at all enforcing rights and duties. But if we don’t have a way of enforcing, you know, if, let’s say I’m supposed to have joint decision-making with regards to an invasive medical procedure, and my ex, I don’t have an ex, but let’s say that I did. My ex, you know, has gets the child surgery and doesn’t tell me about it. If I can’t enforce that, what good is it for me to have the right to begin?

Adam: Well, and a hot topic, so to speak right now and then in Texas family law and throughout the United States and people have very, very strong views about this topic, but you know, transgender issues with children and the decisions that go along with that. You know, the operations and the types of drugs that can be given and administered to children. You know, there’s been case out from your area that has been litigated and is in the court of appeals now, that involves things like that.

And so, I mean, if a parent makes a decision that’s irreversible, what do we do with that under our current state of our rights and duties that are in the family code, and in the way that we’re, you know, we’re bound, typically to draft them by the Texas Family Law Practice manual, because the parents can’t agree on that topic. And so I don’t know all the answers. But certainly, something more could be done to dissuade people, parents from making these important decisions, without including the other parent or following the order.

Holly: So with the way things are now, what can we do to make rights and duties more enforceable?

Adam: So I propose essentially, in broad strokes, what I propose is that we make an injunction. We put language after each right and duty. So the joint right to make educational decisions, we give that to the parents jointly, we have a tiebreaker. I think it’s important that you, you have agreements and make them in writing. And then you not only do you give the right to each parent, but you also enjoined them from making the decision without the other parent.

So now, if dad takes kid to the doctor and gets him a COVID test, and mom, or COVID vaccination, and mom didn’t want him to have the COVID vaccination, well, now you’re in a position to go to the court and get some relief, just like you can on other rights, other things they have in their orders. And so and if we’re doing our job as litigators and as practitioners, we’re telling our client look, don’t go do this because you can get thrown in jail. And, you know, I think a lot of orders from other states, and maybe you have too where the order just says, all right, mom has legal custody.

And dad gets, and mom gets physical custody, dad’s got some visitation rights that are that are even seem like they move back and forth. You know, the parents will agree to what the intention is. What I appreciate about what we do in Texas is that we make our rights, our rights specific. We make our possession schedules specific, sush that we can go and do what I’m talking about, which is to go back to the court get some relief. And hopefully, this way, we are adhering from not doing what they’re not supposed to do. So I think, an injunction, I think injunctions are worth seriously looking into.

Holly: And that’s something I’ve never seen anybody put in an order. I’ve never seen anybody bring it up. But I think that’s an excellent idea of how you make this enforceable and how you keep people from doing what you don’t want, what you fear that they are going to do. And it may not be necessary in every situation, when we have parents that are, you know, relatively amicable or seem able to co-parent. But when you have, you know, the parent who vehemently wants the COVID vaccine and the parent who vehemently does not. Unless you have an injunction or something in there, there’s probably not a lot of recourse when one parent acts contrary to what the other wants.

Adam: Right. And I always I tell my clients that I can’t stop someone from doing something. But in the big instances with child support and possession and access I can, there’s something we can do about it, you know. If it’s possession and access, we can we can get makeup time, you know, they’re always subject to attorneys fees. And as important as these rights and duties are, not having that same ability when I started thinking about it seemed a little crazy to me.

Because I mean, we, I mean, I guess one could argue, minds could differ about whether or not the COVID vaccine issue is more important or less important than whether or not the kid gets to, you know, go to dad’s for the weekend, or something like that. Or whether or not dad’s paying half the, or mom’s paying half the child support, not the whole child support.

So I think before that rights and duties were just something that we just all put in there, and we just all did, and then the parents could take their order and waive it around to the doctor or to the school, and, you know, do what they, get what they wanted. But as we’ve seen this these rights be ignored or abused by parents, it seemed to me that it’s something that we can do about it in the way we draft the orders. And maybe there’s a better way. If there is, I hope whoever sees this calls me and tells me about it.

But this was the best that I could come up with and some of the brightest minds in the business that I’ve talked to think that this might work. It might be a good way to do it. I haven’t done it yet. But I know there were a couple of, when I did this presentation before, a couple of judges that were in the audience came up to me afterwards and they were like, okay, well, I can see where there might be important. So, I, I’ll be interested to try it for the first time and see what that looks like.

Holly: So normally, when we put an injunction in, we have that standard language, you know, because of the conduct of the party, this injunction is necessary. So let’s assume that there hasn’t been anything in the past where, you know, a parent acted directly contrary to what the other parent wanted. You know, there was no one parent taking the child to get an invasive medical procedure. And there was nothing like that in the past. We’re just trying to protect it in the future or, you know, keep problems from happening. If both parties don’t agree to include it, do you think a judge can in that such situation?

Adam: You know, I don’t know the answer to that. I hadn’t really thought about that. That specific instance, yet. I’m not sure. I know that, well, I’m just I’m thinking out loud here. But if a judge says because of the conduct of a party, maybe the judge sees that these two people cannot get along, they cannot co-parent. And I think that if that trier of fact decides that, look, this is gonna be a problem. And maybe it’s their conduct in other ways, that makes the judge believe so. I think that again, I’m shooting from the hip here, but I think it probably could.

If you see mom and dad, and you see what they’re doing to each other, and burning the stuff on the front lawn and, you know, slashing tires, all kinds of stuff. I think you could use any conduct to make that determination. And so then we get into the whole the waiver of service and you know, that kind of stuff too obviously. If it’s agreed, then you can waive service, but service a writ, but then you have to go through that part of it as well. Which I don’t think that I’ve ever served a writ on someone for injunctions, because they either always agreed to it or I guess it just never comes up. But that’s just another step I think you have to take.

Holly: Yeah, I think it’s an interesting, interesting thing to consider. And I guess, by virtue of the fact that these people made it to a final trial to begin with, probably says they’re not very capable of co-parenting, and maybe therefore they are worthy of such an injunction in their final order.

Adam: Yeah. And, you know, I would assume that if this, if this catches on in any way, then you know, you’re gonna have that issue litigated and appealed. And then, you know, we’ll start, the courts of appeals will start weighing in on these issues. And we’ll see how that goes. If it like I said, it’s, it’s kind of catches on, but I wrack my brain, trying to figure out the best way to be able to put some teeth into this. And this is what I’ve come up with. And so that, to me, I feel like it’s my own little pet project. And so I’ll be interested to see if it catches on the first time I go try to do it in a contested hearing, what a judge is gonna say.

Holly: Well, I certainly think it’s an excellent idea. And I know that I intend to start trying to incorporate it by agreement in our orders, because people are always, we want to make everything enforceable when we can. And we want to try and prevent problems in the future, if we can with everything we’re putting into an order. So if this is a way that we can create enforceability, and we can hopefully prevent problems from occurring in the future, let’s do it.

Adam: Yeah, I would I will tell my clients and I will tell, I would hope that my colleagues would do the same whenever we’re drafting these orders, I would say, look, this is what this says. And just like if you don’t pay your child support, or you don’t take Junior back to dad, you could go to jail for doing something like this. And I think that if we, if we educate our clients early on about that, that type of stuff, I think that, especially the high conflict cases, they’ll appreciate the fact that there’s a way there to get some redress if these orders aren’t being followed.

Now, is there chance it could be over-litigated? Yes, of course. But there’s a balance in there somewhere. I mean, everything’s subject to litigation. But there’s a balance somewhere, I think. And I really think that it will assist parents in making sure that what they agreed to is what’s being followed, or what a judge orders is what’s being followed.

Holly: Well I like it. So we’re just about out of time. But one question I like to ask everyone who comes on the podcast is if you could give one piece of advice to young family lawyers, what would it be?

Adam: Know your rules. Stay on top of court of appeals opinions and Supreme Court opinions. Our practice shifts so much on what our courts of appeals say, and there’s so many different issues in family law. Know your statutes, stay up on legislation, the legislative changes, and do your research. Have a background knowledge of everything, and just continue to stay up on it. There are lots of resources throughout the state for the most up to date information regarding legislation and case law and find them and read them.

I mean, if you look back to 2013 when we had in re Stephanie Lee and what that did to our practice and all of the that came out of that. So educate yourself. Go try to take the board certification test, you know, get your experience. I think that that’s, I personally think it’s vitally important. Some people, including my colleagues, have no desire to do it. Don’t want to do it, don’t think it matters. But I guarantee you that I am a better lawyer because I spent the time and effort to go educate myself and, and sit down and go take yet another exam.

I thought that I was only going to take one more. So educate yourself. That’s the best advice I can. I always say that lawyers coming out of law school, they know more law at that moment than they ever will in the rest of their life. I know I did. But as you know, I know a whole, a little bit about a whole lot when I graduated law school and took the bar exam. And if you’re if you’re not a general practitioner, and you’re focusing just on family law, well treat that as a job and educate yourself.

Holly: So where can our listeners go if they want to learn more about you?

Adam: If you want to learn more about me, my website, www.jenkinskamin.com. I always tell people when they’re asking for my office numbers, I’m not hard to find, you can Google me. Put Adam Dietrich lawyer Conroe. And you’re gonna find lots of information about me. I am a member of several different committees from the State Bar and as well some other committees that, and organizations that help try to advance our drafting our legislation, things like that. And so that’s the best place to find me. Just google me.

Holly: Well, thank you so much for joining us today. For our listeners, if you enjoyed this podcast, take a second to leave us a review and subscribe to enjoy future episodes.

Voiceover: The Texas Family Law Insiders podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at draperfirm.com.