One of the most common misconceptions I hear from people about child custody cases is that once a child reaches a certain age, that child can choose whether or not she wants to see mom or dad.  This is absolutely not the case.

Under the Texas Family Code, once a child reaches the age of 12, that child gets a vote.  The child can choose whether she wants to live primarily with mom, primarily with dad, or fifty / fifty with each parent.  This vote carries a lot of weight, and in order for a judge to go against the child’s wishes, a parent must prove those wishes are not in the child’s best interest.  For example, if Teen Girl likes living with Mom because Mom has no rules, Mom allows Teen Girl to drink, and Mom allows Teen Girl to have lots of private time with her boyfriend, whereas Dad has a lot of rules and does not allow those types of things, Dad has a legitimate argument that it is not in Teen Girl’s best interest to live primarily with Mom.

Although a child gets a vote at age 12+, more often than not I see agreements reached before the child actually has to meet with the judge.  If one parent requests a modification due to the wishes of the child, the other parent will often agree to avoid expensive litigation (assuming there is not a legitimate “against the best interest of the child” argument to be made).

I often hear from parents who say their children do not want to see the other parent at all, or they want to spend significantly less time with the other parent than is ordered.  I always remind those parents that, unless the other parent is a really bad parent (alcoholic, drug addict, abusive, neglectful, etc.), it is extremely difficult to get anything less than a standard possession order for that parent.  Further, it is the parent’s responsibility to ensure the children go to their periods of possession with the other parent, even if they do not want to go, or the parent can be held in contempt.  In my experience, the older a child gets, the more deference a judge will give to that child’s wishes, but the reality is that parents need to follow court orders.

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The Draper Law Firm, PC is excited to announce that Holly Draper has been selected as a 2019 Texas Super Lawyer in the area of Family Law.  No more than five percent of lawyers receive this distinctive honor each year.  The Super Lawyers list is published in this month’s Texas Monthly magazine, as well as in the annual Texas Super Lawyers magazine.

Ms. Draper has previously been recognized as a Rising Star by Super Lawyers in 2016, 2017 and 2018, an honor bestowed upon only 2.5 percent of lawyers age 40 or younger or who have been practicing less than ten years.  In 2017, Ms. Draper made the Super Lawyers’ list of the Top 50 Up and Coming Women Lawyers in Texas.

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Many times I hear potential clients mention the possibility of attending mediation with the opposing party as an alternative to hiring attorneys.  These people generally seem to think that not hiring an attorney is the best way to keep things amicable with the other side.  Unfortunately, these attempts to keep things amicable or keep costs down can often lead to serious problems down the road.

Mediation is a great tool to help get cases resolved when they cannot be settled informally.  Even though many mediators are attorneys, the mediator cannot give legal advice to a party during mediation.  The mediator’s job is to get an agreement reached, not advise the parties as to whether or not a particular agreement is a good idea.  When a party attends mediation without an attorney, that party likely does not know the law, what he or she is entitled to under the law, what is standard and what is not, or if he or she may be making a mistake that can never be fixed.

Hiring an attorney does not prevent you from reaching amicable agreements with the other side, but it is the best way to ensure you are protecting yourself.  The attorney can help you think of creative solutions, will help you make sure you are not forgetting to cover important issues in your agreement, and will advise you when you should say no.   If your goal is to try to reach amicable agreements with the other side, be sure to pick an attorney whose philosophy aligns with yours and who seems on board with helping you accomplish that goal, if at all possible.

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One of the most common questions we are asked in divorce cases is: What happens with the house?  There are several important factors that go into answering this question.  First, is the house community property or separate property?  The house is community property if it was bought during the marriage (unless purchased with someone’s separate property funds.)  If the house was bought prior to the marriage, it is the separate property of the person who bought it.   This is true regardless of whether or not the couple was together at the time they bought the house.

If the house is community property, the general rule is that if one party wants to keep the house, he or she must (a) be able to refinance the mortgage into his or her own name; and (b) be able to buy out the other person’s share of the equity.  The equity buy-out can occur in a number of ways, such as shifting other assets to the other spouse to account for the equity, a cash-out refinance, or the spouse taking the house takes on additional debt to balance out the equity.  A stay-at-home parent is almost never able to refinance and keep the house because he or she does not have the income to qualify for the mortgage independently.

If the house is separate property, the house goes to the person who owns it.  The non-owning party may be entitled to reimbursement for some things related to the house.  The non-owning spouse is entitled to be reimbursed for one-half of the principle reduction of the mortgage during the marriage and for any increase in value due to capital improvements made to the house during the marriage with community funds.  The non-owning spouse does NOT get the benefit of any increase in value of the house that happened during the marriage.

Below are a few examples of common scenarios we see related to the house.  Each of these scenarios involves the same couple who is together the same amount of time, but the end result can be very different.

Ex. 1:  John and Mary got engaged after having dated for two years.  They looked for a house together, picked it out together, and participated equally in choosing the house.  The purchase price of the house was $500,000.  John was approved for the mortgage on his own, so the transaction took place entirely in John’s name.  John closed on the house on March 31, 2005, with John putting 20% down and taking out a mortgage for $400,000.  John and Mary got married on April 1, 2005 and immediately moved into the house.    No payments were made on the house until after the parties were married, and the couple never made any capital improvements.  John and Mary decide to divorce in 2019.  The remaining balance due on the mortgage is now $300,000, and the house is now worth $600,000.  In the divorce, the house will be confirmed as John’s separate property.  Mary is entitled to reimbursement of $50,000 (for her half of the principal reduction of the mortgage.)

Ex. 2:  Using the same facts as example number 1, except that John signed the contract to purchase the house on March 15, 2005 but did not close on the house until April 15, 2005.  Even though he closed after the date of the marriage, the house is still John’s separate property because he signed the contract prior to the date of divorce.  The result is exactly the same as in example 1 above.

Ex. 3:  John and Mary got married on April 1, 2005 and entered into a contract to buy a $500,000 house on April 2, 2005.  The parties put 20% down (which came from John’s separate property from before the marraige) and took out a mortgage in both parties’ names for $400,000.   The parties divorce in 2019, with the house being worth $600,000 and the balance due on the mortgage being $300,000.  The house is community property, but John is entitled to get his $100,000 separate property down payment back  The remaining $200,000 in equity is on the table for property division.  If John keeps the house and buys Mary out of her half of the equity, Mary will get $100,000 from the house.

Ex. 4:   John and Mary have been dating for a year.  They pick out a house together, and John purchases the house for $500,000 on March 31, 2005.  Again, he put 20% down and took out a mortgage for the remaining $400,000.  The parties moved into the house together on April 1, 2005.  Although the parties lived together the entire time, they did not get married until April 1, 2018.  On the date of the marriage, the balance due on the mortgage was $310,000.  The parties divorce in 2019.  The balance due on the mortgage is now $300,000.  The house will be confirmed as John’s separate property, and Mary is entitled to reimbursement of only $5,000 (for half of the principal reduction during the marriage.)

As you can see, when someone purchases a house is vitally important to how that house is handled in a divorce.  In all of the above scenarios, John and Mary put the same amount of total funds into the house, but the amount of community equity varied dramatically based on the timing of the home purchase and the timing of when the parties got married.  Because of the complex issues involved with community and separate property, it is a good idea to consult a knowledgeable family law attorney if you need to determine exactly what would happen with your house.

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Grandparents are the only people under the Texas Family Code who can file a suit strictly related to possession and access, but they can only do it in very specific, limited circumstances.  Filing suit to request possession and access is different than filing suit to request conservatorship.  A suit for possession and access only requests a possession schedule that allows the grandparents to have set visits with the children, whereas a suit for conservatorship also includes requests for certain rights related to the children.

Under the Texas Family Code, a grandparent may request possession and access only if: (1) at least one parent of the child has not had rights terminated; (2) the grandparent can overcome the presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that denial of access would significantly impair the child’s physical health or emotional well-being; and (3) and the grandparent’s child (the parent) has been incarcerated for the requisite amount of time, has been declared incompetent by a court, is dead, or does not have actual or court-ordered possession of or access to the child.  In other words, if a child has two parents who are seeing the child, the grandparents have no rights to sue for possession and access, even if the parents are completely cutting them out of the child’s life.

Another requirement for grandparent possession and access is that the parent must be completely denying access to the grandparent.  As long as the grandparent gets to see the child on a rare occasion, that is enough to kill a claim for grandparent possession and access.

A grandparent may have standing to file suit for conservatorship without having standing to file suit for possession and access.  For a discussion of when a grandparent can sue for conservatorship, check out this blog post.

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In order to file a child custody suit in Texas, a party must have “standing.”  Standing is a jurisdictional requirement.  If someone files suit without standing, the case should be dismissed.  If a court enters an order when someone does not have standing, that order is void.  Not just anyone can file a child custody suit.  Under the Texas Family Code, the following people have standing to bring a child custody suit:

  1. A parent whose parental rights have not been terminated;
  2. A child, through a representative authorized by the court;
  3. A person with court-ordered visitation rights;
  4. A guardian of the child’s person or estate;
  5. A governmental entity (such as the Office of the Attorney General);
  6.  The Texas Department of Family and Protective Services (CPS);
  7. A licensed child-placing agency;
  8. A man who alleges he is the biological father of the child;
  9. A person (other than a foster parent) who has had actual care, control and possession of the child for at least six months;
  10. A person designated as the managing conservator in an affidavit of relinquishment of parental rights or who has been given consent to adopt the child;
  11. A person who resided with the child and a recently deceased parent for at least six months ending not more than 90 days before filing suit (commonly referred to as the “step-parent statute,” although the statue is not limited to step-parents);
  12. A foster parent who has had the child in his or her home for at least 12 months ending not more than 90 days before filing suit;
  13. A person who is related to the child by blood or adoption within the third degree of consanguinity (ie: brothers, sisters, nieces, nephews, aunts, uncles, grandparents and great grandparents) if the child’s parents are deceased, if the child’s present circumstances are a danger to the child’s physical or emotional health, or if the child’s parents consent; or
  14. A prospective adoptive parent, if the child’s parent or a pregnant woman has conferred standing to that person.

If a person does not fall into one of the above categories, that person cannot file a child custody suit.  Standing can be a complicated issue, and whether or not someone has standing under one of the above provisions is not always as clear cut as you might think.  If you are wondering if you can legally file a child custody suit, an experienced family law attorney will be able to look at the specific circumstances of your case and help you make that determination.

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Holly Draper is the founder and managing partner of The Draper Law Firm, PC.  We asked her a few questions so you could get to know her a little bit better:

1.What do you enjoy most about family law?

I love getting to help people in what can be one of the more difficult times in their life.  It is so rewarding getting to help someone keep their kids safe or helping someone realize they really can stand on their own two feet.

2. How would you describe your philosophy as a family lawyer?

In general, I prefer to be amicable whenever possible.  It is easier on the heart, easier on the kids, and easier on the wallet.  I think when you start out amicable, it sets the stage for a much smoother process.  If you start out aggressive, it sets the stage for a fight.  There are certain circumstances where starting out aggressive is the right call, but I do not find that to be the case most of the time.

3. Tell us a little about your family / pets

I have been married to my husband, Rob, for almost 13 years.  We have two kids, Abigail (almost 11) and Jake (8).  We have an almost 13-year-old golden retriever named Sophie and a 1.5 year old Great Dane named Charley.

4. What is the favorite place you have been to in the world and why?

Last summer our family took a cruise to Alaska, and it was the most spectacular vacation ever.  We took a zodiac tour in Ketchikan, went on an amazing 8-hour glacier trek on the Mendenhall Glacier, held sled dog puppies, and just had the most wonderful time!

5. What are three items on your bucket list that you have already checked off?

Number one on my bucket list for many years was to take my mother (the world’s biggest Rangers’ fan) to see the Rangers play in the World Series.  We got to go twice.  Taking a helicopter tour to see the volcanoes and waterfalls in Hawaii and holding a stingray at Stingray City were bucket list highlights for me.

6. What are three items on your bucket list you have not yet checked off?

Hiking Machu Pichu, an African Safari, and seeing the Olympics in person

7. Who are your favorite professional sports teams?

Having grown up in Plano, my teams have always been the Dallas Cowboys and Texas Rangers.

8. What sports do you enjoy playing?

I love to play volleyball and softball.  I also enjoy running races, especially if I can talk my kids into doing them with me.

9. What do you enjoy doing for fun outside the office?

I love traveling, reading and participating in our neighborhood book club, playing poker, and occasionally crafting.

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Soheyla Dixon is the newest attorney at The Draper Law Firm, and we thought you should get to know her a little bit!  We asked her a few questions and here are her responses:

1.What made you decide to go to law school?

Everyone deserves someone to fight for them. I wanted to go to law school to fight for what is right. My father grew up in another country, and my female relatives who live there don’t have the opportunity to earn advanced degrees or work in the legal profession. I felt it was my duty to my clients and my family to advocate for people who otherwise may not have a voice.

2. What do you enjoy most about family law?

I love how no case is the same as the last. Everyone’s family is different. Even if families are structured the same, the family dynamics are different. I enjoy getting to know my clients and what is important to them. The real joy is helping them navigate some of the toughest times in their lives.

3. How would you describe your philosophy as a family lawyer?

I prefer helping families come together and reach amicable resolutions in family law cases. After all, each family going through litigation will have to work together moving forward one way or another. When they make decisions together, they typically have more success in the long run.

4. Tell us a little about your family / pets

I am married to my high-school sweetheart. We have one daughter, Amira, who is 3 and a dog, Chloe.

5. What is the favorite place you have been to in the world and why?

Iran – my entire family (on my dad’s side) is there other than my dad.

6. What is your dream travel destination?

I would like to travel to Africa.

7. What are three little known facts about yourself?

I broke my ankle tripping off a water bottle.  I went to college on tennis and academic scholarships.  While in college, I met another girl with my same first AND last name – in MAGNOLIA ARKANSAS!

8. What are your hidden talents?

I can sing.

9. Favorite professional sports team(s)?

Dallas Cowboys (I know, I know)

10.  What sports do you enjoy playing?

Tennis

11. What do you enjoy doing for fun outside the office?

Reading, spending time with family, and anything outside.

12. What are your pet peeves?

Smacking gum and clicking pens

Soheyla Dixon

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Many people have made peace that their marriage is ending before the divorce process ever begins. There are many reasons for this including disappointment, adultery, emotional abuse, domestic violence, a generally unhappy marriage or a host of other reasons. While everyone deserves a happy, love-filled marriage, unfortunately, every marriage is not like that.

The divorce process can take anywhere from 61 days to several years in Texas, depending on the parties and issues involved. It can be incredibly frustrating feeling like your life is frozen while you are going through a divorce, especially if you’ve known for some time that the marriage is over. Regardless, it is not a good idea to begin a new relationship before finalizing a divorce.

Remember, you are still married until the final decree of divorce is entered and signed by the Judge. Emotions are high when a divorce is pending. Both parties are usually very guarded and should be on their best behavior. Starting a new relationship can be a risky move while you are still technically married and is generally not a good idea. For one, an otherwise amicable divorce may become much more contested if your spouse finds out you’ve already moved on.

Dating during a divorce may impact the final determination of custody in your case as well, especially if you have allowed your new romantic interest to be around your children. If you are dating, that person will be around your children at some point. If that person has a criminal record or other issues in their background, the court may consider that when determining who should have primary custody of your children. The court will focus on the best interest of your children and may find that certain behaviors of one parent are simply not in the best interest of the children. The court will then order custody and possession accordingly.

If you begin a new relationship during divorce, your spouse may choose to file adultery grounds. This is even more likely if you began seeing that person before divorce was filed. Your spouse can feel that adds insult to injury or is a slap in the face. A finding of adultery in a Texas divorce means that it will be on record that the divorce was the adulterer’s fault instead of the tamer “no-fault” ground. If the court finds that you committed adultery, your spouse may receive more of the community property as a result.

While divorce is a difficult process to navigate, it is important to remember that patience is a virtue. Give your divorce the attention it needs and, once it has been finalized, you can get the attention you deserve. Treat yourself, spend quality time with your kids. When you truly feel ready, after the divorce is final, you may decide to date again.  If you are going to date during your divorce, keep the new person away from your children, keep all information about the new relationship to yourself, and keep everything about the new relationship off social media.

Blog post by Soheyla Dixon

Divorce

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When you need a lawyer, you may not even know where to begin. There are so many lawyers out there. We see ads on billboards, in magazines, online and on TV. But how do you determine which attorney is the best fit for you?  If you find yourself facing a divorce or a lawsuit involving your children, you need a family law attorney. There are many wonderful family law attorneys in Collin County and Denton County, but it’s important that you find an attorney that is right for you. As family law attorneys, we handle cases very dear to our clients: cases involving children, families, adoptions, terminations, etc. It is absolutely critical that clients interview attorneys until they find the right fit for them. Just like one key doesn’t fit every lock, one attorney is not the right fit for every client.

Finding a great attorney

So with all of the options out there, how can you find a great attorney?  In addition to researching an attorney online, personal referrals and referrals from attorneys in other areas of law are two great options.

Personal referrals – Talk to people in your community, including friends and family. They may have been in your shoes and know an attorney that they highly recommend. Ask specific questions about any attorneys they refer to you. Get as much information about each referral as possible, narrow down the list based on what you are looking for and then meet or talk with with at least one attorney yourself to see if you agree that he or she will be the right fit.

Lawyer referrals – Another good way to find a great lawyer is to ask another lawyer. You may know a lawyer who handles corporate law but not one who handles family law. Ask that corporate lawyer. That lawyer will almost certainly know some excellent family lawyers. The attorneys at The Draper Law Firm, PC pride ourselves on referring our clients to attorneys in other areas who have integrity and who will be great advocates for their clients.  We want to send people to attorneys who we know will take good care of them, and we know most other attorneys feel the same.

What should you look for when choosing an attorney?

Attorneys are definitely not one-size-fits-all.  There are a number of factors that may go into deciding which attorney is right for you.

Attorney Philosophy – Finding an attorney with a great general philosophy for handling your types of cases is one of the most important things you can do.  Does the attorney prefer to start amicable to try and reach agreements whenever possible?  Or does the attorney start aggressive and prefer addressing things in court?  The attorney’s philosophy is so important when deciding if that attorney can help you meet your goals, and certain philosophies tend to be a lot more expensive in the long run than others.

Size of Firm – The size of the firm may be an important factor in your decision.  Larger firms tend to have more support staff, fancier offices, and partners with lots of litigating experience, but larger firms (especially those experienced partners) usually come with a higher price tag.  Smaller firms and solo attorneys may or may not have just as much experience and may or may not provide more personal service.  Ask your potential attorney about his or her experience and how other attorneys and support staff in the firm may be involved in your case.

Communication – You have to be able to trust that your family law attorney has your best interest at heart. When the need for a difficult conversation arises, your attorney should be able to deliver the news in a way that resonates with you and take time to thoroughly explain the situation. Communication is key! You want to find an attorney who will communicate with you in a way that is effective, who truly listens to you, and who keeps you updated about what is going on in your case.

A good attorney will advocate for you and focus on your best interests and your goals.  By doing your due diligence, you can find an attorney that will be the best fit for you.

The Draper Firm

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