Transcript

Kelly Fritsch: Is it not enough to just say the parent is transgender? What are you trying to accomplish with using that? And I think we need to be really careful about that as lawyers, that we’re not using it to spread hate, discontent, to fear monger. How can you truly connect that to anything that’s going to harm the child or prevent them from being a fit parent?

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, I’m excited to welcome Kelly Fritsch to the Texas Family Law Insiders podcast. Kelly is the owner of Kelly L. Fritsch, P.C. in Houston, Texas. She has a BA in English from the University of Houston and a JD from South Texas College of Law. Kelly has been board-certified in family law since 2014 and is a member of the Texas Academy of Family Law Specialists and the American Academy of Matrimonial Lawyers.

She’s currently a council member of the State Bar of Texas Family Law Council and is on the board of directors for the Texas Academy of Family Law Specialists. Kelly has also served in numerous leadership positions in various local bar associations of the Houston area. Kelly has written numerous articles on family law topics and is a regular speaker at family law conferences. Thank you so much for joining us today.

Kelly: Thank you, Holly. Thanks for asking me.

Holly: So why don’t you start and just tell us a little bit about yourself?

Kelly: Sure. I was born and raised right outside of Buffalo, New York. Moved to Houston in 1990 when I met my husband, who is currently an assistant chief with the Houston Fire Department. We live in Houston and have since we got married. We have three rescue dogs.

Those are our babies, Abner, Lady Bird, and Apple. And I opened my own practice in 2014. I had previously worked for and with another family law attorney here in Houston. Actually was her litigation paralegal while I went through U of H undergrad and law school, and then opened my own practice, and we’re here, devoted 100% to family law.

Holly: So how would you describe your current practice?

Kelly: So the current practice is generally high conflict litigation is what we’re specializing in. I have three other lawyers that are here that I work with. Ashley Murski, Alicia Palmer, and Alyse Walker. We all do varying types of cases, but primarily with my focus is high net worth divorce and child custody litigation, many times with juries.

Holly: So that makes a lot of sense, given what we’re going to talk about today. You were actually part of a panel at Advanced in 2024 where the topic was polarized parents. And anyone who’s done family law for even a relatively small amount of time can understand immediately where we’re going with that topic. So why do you think cases involving polarized parents are so challenging?

Kelly: I think at the core of the cases that I’ve been involved, fundamental disagreement about which parent should have that right to establish the primary residence. And that’s really what it comes down to, is that conflict. And then it kind of spirals from there about what issues we can raise or point out, about why either our client should have that right, or alternatively, why the opposing side should not have that right when we go into trial.

And there are so many issues that we can look to where parents become polarized. My personal opinion is, is that it is just an issue to argue about. It’s a way to make your case, and that sometimes, when you get down to the heart of it, maybe they’re not as polarized as we think they are, but it’s an issue for litigation purposes.

Holly: So we’re going to go through some of the issues that you all discussed in your panel discussion and in your paper. For anyone who didn’t see the CLE in Advanced or hasn’t read the paper, there are other topics in there that you might be interested in, so I highly recommend going and checking those out.

But with almost all of these issues, there really seems to be little guidance in the case law. And I think results can vary pretty dramatically from county to county and even judge to judge within the same county. And that’s part of what makes these types of issues we’re going to go through so difficult.

That as attorneys, you have to know what is this particular judge likely to do. Or if you’re somewhere like Bexar County. I just had a hearing in Bexar County yesterday, where you don’t even know what judge you’re going to get till you show up that day, being prepared for what all the possibilities could be.

Kelly: Holly, that is so true. I often tell my clients, you really have to understand who your audience is. Although I primarily am in Harris County, I do go to Fort Bend County quite often, and Montgomery County. And even though those are all close in a geographic area, the judges vary so widely on how they see even issues of possession schedules, right? If someone’s going to vary from a standard possession order versus maybe consider a 50/50, it’s so important to know what your audience is when you’re making that presentation.

Holly: So the first of these polarizing topics that we’re going to dive into is transgender issues. And really, I think these kind of fall into two categories. One being where we have a transgender parent as an issue, and the other one being if there are transgender children in the family. So let’s with the parents. Give us a little background of what’s going on in this area in Texas.

Kelly: So in Texas, unfortunately, and I might speak out of turn about this issue, because I had the opportunity to speak on transgender issues last week, too. I think Texas is still very much growing in this area. I think there’s still a lot of what I would consider unknown by practitioners, by judges, on how to handle these issues.

I think that’s become the hot topic in child custody litigation, obviously, if the facts exist, because there is a lot of misinformation generated by the media. By maybe our upbringings and thoughts from the generations before us. And I think the younger generations are much more accepting of everyone, and so they talk about it more, they express their feelings more, and they’re they’re more open in society. I think this is definitely an area that is I think it’s young in Texas, especially the case law with regard to parents.

When we talk about children, we can get into those two cases that I think are wildly interesting. But as far as the Texas case law with transgender parents, it’s almost zero. The paper that we did for Advanced Family talks about other states and their views on transgender parents.

And I’m going to cue a couple of quotes, Holly, because they’re shocking. When you read these and you think that judges who are deciding custody will make these comments about transgender parents, it’s scary, right? We’ve got a case out of Ohio in 1982 and I recognize it’s 2024 so things have definitely changed, but a judge there denied a transgender parent visitation with the child, noting that, “common sense dictates that there can be social harms.”

There is a case that we have in there that we discuss out of Nevada, where the court terminated a transgender parent’s parental rights, stating, Suzanne, in a very real sense, has terminated her own parental rights as a father. It was strictly Tim Daly’s, who was formerly known as Suzanne’s choice to discard his fatherhood and assume the role of a female who could never be either mother or sister to his daughter.

So I think you know, if we, if we look where we’ve come from with a lot of hate and discontent and a lot of bias from judges about what the role of a transgender parent can be for a child, to me, it’s pretty scary when you start looking at those cases, what’s come before with where we are now.

Holly: I think this is an issue where you really, really need to know where your judge stands, and your particular judge may not have ever had this issue in their court before. So is it not possible to ask your colleagues, hey, how does judge so and so deal with a transgender parent? But you kind of know based on the politics of the judges and what they do in other cases, how they are likely to handle this.

Do you think this is a good situation as a general rule, I think jury trials in family law cases are very rare. You know, I probably have had three cases in my entire career that I even thought about it, but I can see where a case like this is something where if your judge is one that’s really not going to be friendly to your client, a jury might be where you have to go.

Kelly: I think that’s definitely a factor to consider. When you’re starting out with these cases and you have a parent that is either transitioning or has transitioned, there are three considerations. Definitely who the judge is. If you can even really know what their feelings are. And I’m just going to speak globally, right?

I mean, we can look at someone’s maybe their political leanings. Unfortunately, our judges have to run on a party, so you can start there. I don’t know that that always translates into knowing what a judge is going to do or what their personal feelings are on that issue. In Texas, we vary so widely with our politics, depending on what part of Texas you’re in. What’s red and what’s blue?

But one thing I think is important, at least for me when I’m taking one of these cases, is to have some type of expert who can help me navigate at the courthouse to make sure that if there’s a belief of social harms or that they can’t really be a parent to a child because they’ve transitioned, that someone there, far smarter than me on these issues, can educate the judge on what that really looks like, what it means, and why it, quite frankly, shouldn’t even really be a factor for anybody to consider.

Holly: What kind of an expert are you typically looking for in that situation? Mental health professional?

Kelly: Yeah, a mental health professional. And I think it’s important that you really deep dive into the background of the mental health professional. When you’re doing that, make sure that they have, that they’re educated on the issue. I think because this is a hot topic, you’re going to see a lot more mental health care providers LPCs represent that they handle or deal with these issues. I know in Houston, there’s one psychologist here that it’s definitely her specialty.

She speaks on it often, and she’s got a lot of background on just even more than transgender issues. Just all across the LGBTQ community, and can speak to the historical data on this, why the transition doesn’t impact parenting, how to manage it within the family, family therapy, too. So definitely a mental health care provider is who I would go to in that area.

Holly: So any tips or thoughts for the attorneys out there that are representing the other parent in a case involving a transgender parent?

Kelly: I mean, kind of goes back to the basics on any issue when you’ve got these polarizing issues. You have the other parent. What is the real issue? What is the real concern? Is this an issue that we know we’re in a courtroom with a very conservative judge, and we know the minute we say transgender, that judge is going to go, that person can’t possibly have custody?

What are we really using that information to do? And I’ll take it out of context because I like to do that. It’s like alcohol. Okay, the other parent drinks. Are they drinking to the point of intoxication, and if they are, what’s the impact on the child, and why would I raise that issue on custody, if that’s what we’re going to do? Is it not enough to just say the parents transgender? What are you trying to accomplish with using that?

And I think we need to be really careful about that as lawyers, that we’re not using it to spread hate, discontent, to fear monger, which is what I think most people are trying to do when they raise that issue. How can you truly connect that to anything that’s going to harm the child or prevent them from being a fit parent? I mean, that’s really what it’s all.

I always think it doesn’t matter what the issue is. It could be transgender, it could be corporal punishment, it could be drugs, alcohol. How are we connecting that to the reason why that person should not be given the exclusive right to determine the primary residence?

Holly: So switching gears slightly to talking about cases involving transgender children. And I think there’s a little bit more out there in terms of case law and what’s been in the news and all of that in the past few years. You mentioned there were two specific cases that we could dive into on this issue, so tell us about the first one.

Kelly: Sure. The first one is the Abbott v. Doe case out of the Austin Court of Appeals. And essentially, the background on that is parents of a transgender minor that was diagnosed with gender dysphoria, and a psychologist who was treating that child brought action against the governor, the Department of Family and Protective Services, seeking injunctive relief.

Because behind the lawsuit was Governor Abbott issuing essentially, or excuse me, the Texas Attorney General issuing a statement saying that parents who were treating gender dysphoria with certain prescribed medications, that the use of those prescribed medications was per se child abuse. So it started with the Texas Attorney General.

The governor took that statement, and issued a directive to the Department of Family Protective Services that said, if you know about this, this is child abuse, we want you to investigate it. And what’s kind of crazy about it is it took it a little bit of a step further. It also put the onus on the mental health care providers who were actually prescribing the medication to report child abuse, which is insane to me, but that’s exactly what it says.

And then it also then put a directive out to the members of just the general public. Anyone could be a lawyer, could be anybody else, if you know of anyone giving that treatment. So I’m going to break it down again. A prescribed medication for a medical diagnosis. Per se child abuse, you needed to report that to the Department of Family and Protective Services so that they could investigate it.

And in the Abbott case, the litigants there mom was an employee of the Department of Family Protective Services, and reported it to her superior, and then was subsequently put on leave while she was investigated for child abuse.

So when they took the case to the court of appeals, the child psychologist joined in the lawsuit, because her position was, I shouldn’t have to report. This isn’t child abuse, nor should I be put in a place to report it. And the Austin court, the trial court, issued the injunctions, and then that was upheld by the Austin Court of Appeals.

Holly: So did that case ever go to the Texas Supreme Court, or did it, they just ended it there?

Kelly: Holly, my understanding is, is that it has not gone up. That was in, and I know that’s from this year, but my understanding is that it has not gone. Both cases out of the, they’re both in the Austin Court of Appeals did not go up to the Supreme Court.

So truly, the other case is, the name of it is the Muth v. Voe case, which is very similar to the, it’s based out of that same directive with the Texas Attorney General and the governor making that directive to the Department of Family and Protective Services. The second case, I think, gained a little bit more momentum because there were other groups that joined in as the petitioners at the trial court level.

Groups that supported the LGBT community joined in, and a trial court found that everybody had standing to bring the suit. The child psychologist, again, did as well, and essentially issued those injunctions against the Department of Family and Protective Services from investigating that as child abuse, and the Austin Court of Appeals upheld that.

Holly: So when it comes to custody litigation, what tips would you have for attorneys that are representing the supportive parent when there’s a transgender child?

Kelly: So I think the tips are is that we need to make sure that they’re actually supporting the child. That they’re not using that as a tool in the litigation. And I talked about this at Advanced Family. I served as an amicus on a case where Sally started off as Sally, transitioned to Sam and quite frankly, neither parent was supportive of the transition.

If you really got them talking about it, for religious reasons, for lots of reasons, they did not support the transition. But dad, midway through, changed his pleading for custody, saying he supported the transition and used that support to try to get some traction with a custody case that probably otherwise you would not have brought.

So at least in where I’m representing a parent, the tip that I would give is that has to come across in a genuine way. Nobody’s going to be fooled by it. Nobody’s going to be fooled that you’re being supportive if you’re truly not. For supportive parents, I bring in mental health care providers.

I think parents, even if they’re being supportive, there are lots of issues related to that that they don’t understand, and they need to have their own therapist and go through their own therapy on that and I talk about that case a lot because mom was not a supportive parent. She could not wrap her mind around that, that little baby girl was going to be gone.

The little girl that she dressed up in tutus and rainbows, butterflies, you know, glitter nail polish, she couldn’t. She just it was very difficult for her, and she really needed somebody to walk her through how she had to transition her thoughts about that, and that it was the same child, even if it was a little different, it was still the same child she loved and brought up and cared for.

It just looked a little different. And so definitely mental health care provider. Again, with the child, they need a mental health care provider. I think if you if you look at any article on this issue, the self-harming, self-loathing, suicidal ideation, with kids who’ve transitioned, it’s very high, and they need to have the emotional support.

I think it’s very high for many reasons, but because they don’t feel supported, and they don’t feel like they’re good enough, and so you definitely need to make sure that you’ve got the right mental health care providers. And again, I can’t stress this enough, because if I’ve seen this in several cases. Parents need to do their homework.

But even if you, even if your client thinks they’ve done the best homework ever and found the perfect mental health care provider, double check their work. Make sure that person actually is trained and has the background to deal with these very complex issues.

Holly: So this is a situation where there are a lot of judges, at least in the counties where I practice, where taking a supportive parent in front of that judge is going to be a disaster because the judge is so conservative. What do you do when that happens?

Kelly: I think you can prepare your case when you have a conservative judge a little differently. You can prepare your questioning a little bit differently. I think every supportive parent, take the time to talk to them about this issue, get them to be, say, be real about it. Because I think sometimes in litigation our clients aren’t as real as we want them to be.

You can get them talking about it. They’re going to tell you, at some level, they struggled with the transition. And I think if you’ve got a conservative judge if you can present your client in a way that doesn’t look overly aggressive in their support. We’re not here saying we want a sex change.

We’re not here saying we’re going to do some sort of surgical procedure, simply, as the child is trying to figure out what’s going on. Question, what’s going on, we want our child to know we’re there for them. We’re supporting them. Do we love them? And I think you can just frame it a little bit differently. I think there’s, again, I think judges that are conservative have a certain mindset that a parent’s going to take an 11-year-old and have a gender reassignment surgery.

That’s not happening. That’s not what that is. And so I think the way you present it, and again, I would lean heavily on having an expert there, because sometimes I don’t always think lawyers, when they’re advocating, say the same thing an expert can say on the stand about these issues and why it’s necessary that we do support the child who’s questioning themselves or transitioning.

Holly: So what about if you are representing the unsupportive parent? How do you handle that?

Kelly: I think, with the same like kitten mittens, right? We’ve got to figure out at the core of it, what, why are they unsupportive of it and what is their fear. And I go back to this mom every time because she loved that child. It really wasn’t an issue. She was painted as a non-supportive parent, but she was really struggling with her own loss of a daughter to a son.

And when, when we got a mental health care provider in, that really got her to that point, and got mom to be able to talk about that, I think the judge saw her in a different light. In initial hearings, we didn’t really, she couldn’t articulate it.

Initially, she thought dad was going to have her do some sort of invasive surgical procedure, or start doing those types of things where she wanted a much slower approach, no approach at all. But was really struggling with her own, her own issues that were causing her to look so unsupportive.

So when I say, take the time to get to know the clients and their position on that. You’ve got to have a comfort level in your own practice and your own ability to discuss these issues, to get them to talk about it so that you can have the right presentation to your judge.

Voiceover: This episode of the Texas Family Law Insiders podcast is sponsored by The Draper Law Firm, providing family law litigation in Collin, Denton, and Dallas counties and appeals across Texas. For more information, visit draperfirm.com, or call 469-715-6801.

Holly: So regardless of whether which parent and what level of support they have for this child, is it usually a case where you’re in there asking for counseling for the family and counseling for the child? A lot of mental health services that you may not be normally looking at in a traditional child custody case.

Kelly: Yeah, I think so. Depending on what you get when it walks through the door and where they are. Some of the cases, there’s already a therapist involved, and so there’s already been a partial transition or some consideration of it. I definitely think having mental health care providers in those cases is helpful, just to kind of manage everybody and their expectations.

Family counseling, also. I don’t normally ask for family counseling in cases. I think if people are divorcing, but they want to do that, they can. So it’s definitely that’s a request that I’ve made. If I’m serving as an amicus attorney. I definitely will make that request if I see that that is an issue that’s being used in the litigation to kind of sway a custody case.

I mean, I’ll tell you, for a child that’s transitioning, watching that play out in a courtroom to that child is horrific to them. To know that every time mom and dad are going to the courthouse, they’re arguing about this. To know that one parent’s coming back and telling guess what, guess what mom said about you today, guess what your dad said about you today, right?

So having the mental health care support for that child, I think is imperative, because they’re already struggling. They really don’t need their parents doing that to them. I think that makes it particularly difficult. So for sure, for the child, or children, the mental health care component, I think it’s a must.

Holly: So switching gears, we have a couple of other polarizing topics we wanted to dive into real quick. The next one is a topic that I honestly feel like is surging right now. Just in the Facebook moms groups, I see anti-vax posts all the time. What pediatrician can I go to that’s not going to push vaccines?

So I feel like there is a growing trend of parents who do not want to vaccinate their children. First question, which I think, even in my own office, amongst attorneys, we have a different opinion on this. Do you consider vaccination to be an invasive procedure?

Kelly: Holly, this is the most non-responsive answer I’m going to give. I think it only matters what the judge I’m in front of thinks about that issue. I personally, yeah, I mean, you’re putting something in a person’s body and it’s going into their body. I believe that to be invasive, but I also think taking medication is invasive because you’re swallowing something.

But I don’t know that everybody agrees with me on that. You hear, or at least I did throughout, growing up in the practice, is it breaking the skin? If it breaks the skin, it’s invasive. I don’t know about that. I think that there are, I think medication definitely invades your body, right?

So why that couldn’t be considered that? What’s crazy to me is we have no real answer in any courts of appeals or the Supreme Court on whether or not a vaccination is an invasive medical procedure in 2024. And I don’t think the vaccination issue is new. It’s been going on for a long time.

Holly: So let’s say that you have a client, and they are the anti-vaxxer. How do you handle that in court?

Kelly: So the way that I’ve handled it is number one, especially if it’s a divorce case when the parents were together, what was their agreement? And if no one can tell me that there was an agreement, what were they doing? So I can show what the agreement was, right? So yes, we have a pediatrician, but we didn’t do all the regular vaccines.

Did some, and we did them on a really slow schedule. And so I can look at a regular vaccination report and look at this party’s one and know, okay, they weren’t doing everything, and they were doing it slower. And so judge, why does that change now that they’re getting a divorce?

Because you’ll see that where there’ll be one who’s not, doesn’t want the vaccines, or wants a slower way, or less vaccines. And then we get a divorce, and the other parent is like, well, I’m going to take them right now and we’re going to get up-to-date vaccines.

So I try to use what they’ve been doing to establish what should continue, at least during temporary orders, and then on final who was the one really making those decisions? If dad was the one taking the child to every medical appointment and talking with the pediatrician and making that decision, well then maybe he should have the continued ability to do that.

I don’t always couch that, though, on final trial in terms of an invasive medical procedure. I try to carve out additional provisions regarding vaccines, just because I think people don’t always know whether it’s an invasive issue. And so do we continue with the same pediatrician? I did one recently.

This was by an agreement where we kept the pediatrician, and the parties agreed they were on a delayed schedule. They would continue the delayed schedule as they always have. So I think for me, it’s important for the court to know the history of that. Who was doing it? Who was taking the child? Who was consulting with the professionals, to know how to then couch that into my proposal.

Holly: Is there any law out there from Texas courts either in favor of vaccination or in favor of protecting parental rights to choose not to vaccinate?

Kelly: So what you’ll see is more of what I would consider like the rationale behind which parent is given the right to do so. Which parent is given the right to continue or not continue, and they’re very fact-driven. You cited some cases in that paper that you referenced earlier, and of course, several of these cases came about during Covid, right?

Because people were very polarized and still are on whether or not that vaccine should have been given to children. And the way that the courts across the US looked at that was, again, who had been the parent making that decision. What type of evidence did they give?

Was there a reason why some of the cases, I think some of the children, were at higher risk if they got covid for having longer-lasting health issues? And so they really did it by fact by fact, a case by case basis. There’s no real one rule for anyone to follow, which is why I think this issue continues to be very polarizing in child custody cases.

Holly: So another topic that I’ve seen more of lately become a polarizing dispute between parents is that of ADHD and medicating a child. I have a child with ADHD, and that has, until that happened, I did not understand this at all, and I could not relate in any way to what was going on in these cases. And now I have a very different perspective. Give your two cents on ADHD and medication and what attorneys need to know or look into.

Kelly: Well again, think attorneys need to educate themselves on what type of medication parents are going to be giving their children. If you’re going to be going in, you’ve got a parent who’s opposed a lot of times with ADHD, you’re talking about whether it’s a stimulant or non-stimulant, and I’m just going to back it up before you get to the medication.

And I’m sure you know this from your own experience, but when you go and have a child evaluated for ADHD, it’s not like the number one thing they recommend. You get a report if you do a full-blown evaluation, and I think 99% of the reports that I’ve seen in cases, there’s a laundry list of suggestions that they give on how this child can manage their ADHD.

Should they be seated at the front of the class? Should they be given an accommodation for testing? Those types of things. You see all of that, and then at the bottom, usually it’s at the very bottom, it’ll say, and I also suggest you go see a child psychiatrist and have a consult to discuss the possibility of using medication if it’s needed.

So depending on what type of case walks through the door, right, are they already on the medication, or are we all just at the beginning stages, and what are we going to do? So if we’re at the beginning stages and there’s no medication, then I want to know from my client that they’ve done the other things that are suggested.

And sometimes what’s suggested in those reports, the schools can’t accommodate, or whatever. But most schools can accommodate putting their child in the front row. Most schools will give accommodations for more testing time. You know that type of thing to accommodate ADHD.

I want to know that my clients have done that and haven’t just said, oh, hang on a minute. Now I want to go to prescription and I’ll use Adderall. That could be Vyvanse. It could be other various things. And have they done a consult with a child psychiatrist beyond their pediatrician? I’m not saying pediatricians can’t give that medication.

They do, and that’s fine, but I would at least go again to somebody who I knew and trusted who was a pediatric psychiatrist who handles children with ADHD. It seems simple to say. But you know, at least here in Houston, in a city of close to 5 million people, if we have those types of specialists readily available in all of the surrounding metropolitan area, that’s them.

Send your client to use one. A colleague of mine here in Houston does an annual list where we all submit names of experts we use, and we circulate the names so that we have them. If you don’t have somebody, call someone you trust and say, I need an ADHD specialist with a pediatric psychiatrist to know whether or not this medication should be given.

Sometimes in Houston, in a recent case, I had a four-year-old girl who was diagnosed. That’s scary giving them that type of medication, right? So let’s make sure we’re all doing like the homework, the understanding of that medication and what it’s going to do. Because you got to educate the judge, right? The judge is not going to say, I authorize mom to give the child Adderall. You’re either going to get the exclusive right on psychological and psychiatric, or not.

Holly: And oftentimes, if we know that ADHD and meds are an issue in a particular case, we will carve out and create a new right. Either the parents have to agree before they give this kind of medication, or one parent has the exclusive right. I think it’s really important for attorneys also to look into what kind of problems is this child having, and how severe are they.

Because the more severe they are, the more that kid he might need the medication. So looking at all of the pieces and trying to understand there are all these different kinds of ADHD, and it presents differently with different children, and to get educated on it so you can advocate for your client in the best way possible.

Kelly: Yeah, Holly, I recently had a case, it was the little four-year-old girl. And I was the amicus attorney in that, and I was very concerned about the decisions. Well, interestingly enough, it doesn’t always work out this way. Mom was very pro-medication. Didn’t really, didn’t really care about the rest of the list of things.

She was like, let’s do the medication. That’s what’s going to work. And dad was like, hang on a minute. Let’s slow it down. I want to understand things better. And so when I gave them a referral to a pediatric psychiatrist, and they went and met with that person, and then I also spoke with the psychiatrist and said, if they do no medication, what do you foresee?

Do you think that this child can persevere if she’s at the front of the class? And she was mild. Wasn’t having a lot of issues, but definitely lack of focus, lack of concentration, getting out of her chair, not completing work, those types of things. Pretty, pretty mild.

One of the interesting points that that psychiatrist said is, yes, you can try all of those things, but if you don’t see some advancement in the next three months, consider, and they were talking about a non-stim for this little girl. Consider giving it to her, because as each month goes by, she’s falling further behind in her classwork.

And the more she was falling behind, the less secure she became. So then she was having some anxiety issues about even going to school and it was creating other issues. So I guess my takeaway with that is, whether you think a child needs medication or not, and I don’t ever really impose my personal belief on that.

I would rely on an expert to do that. And from an attorney standpoint, but consider sometimes the ramifications of not treating it too, that you might be creating other issues for that child that are completely unforeseen circumstances.

Holly: So one last topic, which I think is a little bit different than all the other ones we’ve talked about so far, but we definitely see it come up a lot, is parents who cannot get on the same page when it comes to extracurricular activities.

And I mean, I’ve personally been involved in where somebody filed a TRO because of one parent wasn’t allowing the child to go to this tournament or whatever. Something serious in their sport. What kind of issues do you see pop up that you would consider polarizing related to extracurricular activities?

Kelly: So the number one polarizing issue that I’ve seen is generally the parent with a visitation schedule, even if it’s a standard possession order. They don’t want to give their time up with those kids to an extracurricular activity. That’s their time. They don’t get to see them anymore.

I’m used to seeing my child every day, now I see him every other weekend, I see him on Thursdays, and that’s on a real visit. I’m not giving up the time to go sit in a volleyball tournament Friday through Sunday. That is the biggest issue that I see with regard to extracurriculars.

Holly: How do you handle that? If you let’s say you have the parent that wants the child in these activities. This child is going to get a scholarship, this child is going to be in the Olympics, whatever the case may be. But how do you handle it on that parent’s side?

Kelly: I think again, I try to go back and get historical data on what parties were doing before the divorce. Or even if it’s a mod, you know, what has the history been? If I’ve got an overzealous parent who likes to schedule their child every moment of every day, and I feel certain it’s because they don’t want that child spending time with the other parent, at the end of the day, I can probably tell you it comes down to I gotta know who my audience is down, at least in Harris County, because some of those judges are going to say that’s mom or dad’s parenting time.

Don’t interfere. I don’t care. I don’t care what the activity is. And then there’s another handful of judges I’m in front of that love extracurriculars and think kids need those extracurriculars to thrive. And teamwork and, it’s how they gain their social skills, and they don’t need to be held up in the house with one parent all weekend and not get their socialization just because we have a divorce.

I think that really comes down to again, knowing who your audience is and what court you planned in. I don’t know how people practice in Bexar County. That would probably make me probably make me absolutely nervous to never know who I’m going to be in front of until I show up. But I do think that’s really important.

And unless you can show me or show the judge that this is the next Olympic gold medalist at gymnastics, legitimately, I just, I don’t think, I think, still, the judges are going to err on the side of making sure that both parents are getting time with that child. And maybe there’s a suggestion to make. Hey, this is her softball schedule.

She’s got all of the games and practices fall on your weekends. Let’s trade weekends. You take second and fourth, and I’ll take first and third, and we’ll deal with the fifth weekend. I think you probably can get to know what your client’s real position is if you make those suggestions and they don’t want to do it. And then, are we talking about a five-year-old?

Are we talking about a 15-year-old? Is it school-driven? Is it in something that’s not school-driven? A lot of our club sports, at least in the Houston area, I mean, those schedules are brutal. They’re daily. And then weekends are like, it’s like two games every day. So, I think it’s all fact-driven again, on what the actual activity is.

Holly: So how do you handle it if you’re on the parent side of the parent who does not want the child to be in whatever competitive cheer or select soccer or whatever the sport of choice is?

Kelly: Yeah, I mean, I think I try to counsel them depending on the age of the child. I think, use a 15-year-old girl, for example, who’s maybe been playing, I’m going to keep using softball because I picked that, softball her entire life. If you don’t let her go do that, you’re going to have problems. She’s not going to want to be with you.

If you’ve got to figure out a different way to manage that. And the answer just can’t always be, no, I’m not letting you do that. Because this is my Thursday evening, and you’re going to go to dinner with me at Applebee’s, and we’re going to sit and stare at each other and not talk because you’re mad because I’m not letting you play softball.

I mean, there has to be some real-life advice you’re giving the client. But if it’s a five or a six-year-old, I’m probably more likely to say maybe you ought to tell mom, like, hey, this is my parenting time. Can we look at a different sport? It’s always interesting to me when somebody signs a kid up for karate and you can only go on Thursday nights. So, right? I look at it on a case-by-case basis.

And I think as the child gets older, the more committed they are to a team sport, I think parents need to be more realistic. That’s a hard thing for any parent, right? When you’ve got a teenager that would rather spend time with their friends than at home with their parent, anyway, and I think that’s all very fact-driven.

Holly: And one of the other contentious pieces related to extracurriculars often revolves around the financial piece of it. These activities can get extremely expensive, and normally in our orders, we’ll often say the parents are going to split the cost of mutually agreed activities.

So dad might be perfectly fine with the daughter being on the competitive cheer team, but he’s not perfectly fine with paying $10,000 for his half of what that season is going to look like. So any tips or thoughts on dealing with that financial piece when we have this in a case?

Kelly: So if you’re asking for that financial component, get the history on that as well. I keep saying that, get the history. But here’s why I think it’s important. Number one, what was being spent by mutual agreement? I’m putting it in the context of a divorce, but if they were doing this while they were together, why should that change? Says, pay that out of your child support.

Depending on how much child support you’re getting, I may say, yeah, you’re probably going to have to suck that up and pay it out of the child support. But if it’s something like these, the cheer it is into the 1000s of dollars. And a lot of times there’s travel, right? They’re traveling to out-of-state competitions, there’s hotels, all of that component with it, and getting your client to give you a realistic number on that, I always laugh at that.

There’s always an interrogatory question. Says, if your kids are involved in extracurriculars, what does it cost? And parents will, apparently, just write down the cost varies. It does vary Yes, but if you want us to help you, you need to actually tell us is, is there travel.

Because if you’re getting $550 a month in child support, but y’all had previously been paying this expense that over the course of a year is $10,000, your child support’s not going to cut it, right? It’s not going to help pay for that and the other things that child support’s really supposed to go for.

So having that, arming your client, or arming yourself with that information if you’re going to ask for something outside of child support, and don’t be afraid to ask for above guideline child support. Is that being a factor, right? I know we always look at like medical, those types of things, but go back and look for your clients, what they’re really spending on something.

Because I think most judges want to keep the status quo for children. They don’t want to say, I’m sorry. Sally, mom, and dad are divorcing, so you don’t get to be in club cheer anymore. You know, if they could both afford it when they were together, they can both afford it when they’re not.

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

Kelly: Find a mentor you trust and use the mentor. You cannot hang your own shingle and think you know everything. Even after 15 years, I think daily I learned something new. But you’ve got to have people around you, and it doesn’t have to be one, I tell people have at least five right?

Somebody in your office, somebody down the hall, somebody that you know, when you call them, they’re going to answer the phone and help. I think that that is the most important piece of information I can give. I’ve been blessed to have those people around me, but I’ve also made that happen because we just sometimes you got to bounce things off of other people to make sure you’re not losing your mind, even with the position you’re taking. So I think it’s important to have that, that mentorship.

Join the organizations that are local to you, whether it’s a state bar, family law council, you know I’m going to push that because I’m a member. There are so many people across the state, right, Holly, I mean that we get to meet each other, and know, just in Texas and even through the American Academy from other states, it’s so important to have that network. It will definitely help your family law practice.

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

Kelly: So my website is fritschfamilylaw.com. Go there, and that’s probably the only place. I guess you can Google any of us and have more information, but that’s definitely one place. I also am a chair of a nonprofit, so I suppose when you Google, if you did Google me, you would see that too, that raises money for children with autism, so I’m involved in that. But definitely, the website would be a place to start.

Holly: Perfect. Well, thank you so much for joining us today. For our listeners, if you enjoyed this podcast, please take a second to leave us a review and subscribe so you can 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 www.draperfirm.com.