If you have been involved in a family law dispute, you may have heard of joint managing conservatorship. You may be wondering what exactly joint managing conservatorship is and what it means for you in your family law case.  Conservatorship relates to rights, and joint managing conservatorship is presumed to be in the best interest of the child. This is a rebuttable presumption, meaning  a court can find that joint managing conservatorship is not in the best interest of the child. For example, if one parent has a history of domestic violence in the past two years, the court cannot name that parent as a joint managing conservator.  A parent might be able to overcome the presumption by showing the other parent has a history of substance abuse or has been absent from the child’s life.  In those situations, the court may find it in the child’s best interest to name one parent as the managing conservator and the other parent a a possessory conservator.  A managing conservator has far greater rights related to the child than a possessory conservator.

Parents often confuse conservatorship with possession. It is important to understand that joint managing conservatorship does not mean the parents spend equal time with the child. Rather, it refers to the rights and decision-making ability both parents have regarding the child. This includes legal, educational, medical, and psychological decisions. Joint managing conservatorship does not mean the parents have equal rights.  The rights can be allocated in a number of different ways.  Rights can be truly joint (requiring joint agreement), they can be independent (allowing each parent to act independently, possibly with prior consultation or notice required), or they can be exclusive (where one parent has that right but the other does not).

When parents are named joint managing conservators, it is common for one parent to be given the exclusive right to determine the primary residence of the child (usually within a certain geographic area.) This parent is referred to as the “primary parent” or “custodial parent,” and that parent usually receives child support payments.  The “primary” designation can carry a lot of legal significance beyond just the current custody order, and it is important to understand the implications before agreeing to give the other parent the primary designation in an order.  If neither parent is given the exclusive right to designate the primary residence (which is common with 50/50 possession schedules), the residence of the child with both parents is restricted to a certain geographic area.

 

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Texas is a community property state, meaning all property acquired during the marriage by either spouse is presumed to be part of the community and, therefore, subject to division by the court in a divorce.  But what about debts, such as student loans?  In Texas alone, almost 3.4 million people have unpaid student loans that total more than $111 billion.  Understandably, a lot of people fear becoming responsible for their ex-spouse’s student loans post-divorce.

If you or your spouse obtained a student loan before the marriage, the student loan is considered a debt of that person’s separate estate, and the person whose name is on the loan will be 100% responsible.

If you or your spouse obtained a student loan during the marriage and used the money for education-related costs, the person whose name is on the loan will be 100% responsible.

However, if you or your spouse obtained a student loan during the marriage, and evidence shows the loans paid for living expenses that benefited both parties, the debt could be considered part of the community estate.  In this case, it will become one of many factors that are taken into account in dividing the entire community estate.

What about reimbursements?  Many people want reimbursement for the payments made on one spouse’s student loans during the marriage.  Texas law clearly prohibits reimbursement claims for payment of student loans owed by one spouse.  Much like buying groceries or paying for gas, these payments cannot be reimbursed.

Refinance student loans are another issue that arises during a divorce.  If you or your spouse co-signed student debt, including during a refinance, the co-signer becomes responsible for that debt.  In a situation where both parties’ names are on the student loan, the loan will be considered part of the community estate.

If you are going through a divorce and you have student loans, you should also speak with a financial planner because your options for repaying student loans may change post-divorce.  It is also important to have an attorney knowledgeable about property and debt issues.  The attorneys at The Draper Law Firm are ready to help you be proactive in navigating these issues.

Blog post by Samantha Mori

 

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Judges carefully consider the evidence and arguments presented at a trial before making a final decision, but this doesn’t mean that a judge’s decision is always accurate. For this reason, you still have options you can pursue in order to urge the judge to make a different decision in your case. There are different types of relief available if you believe the Court has made an erroneous decision. Below, we discuss your options for relief, and when each type of relief is most appropriate in your case.

Motion for New Trial

If you’re generally dissatisfied with the Court’s decision, or for one reason or another, the opposing party obtained a default judgement against you, a motion for new trial is likely your best option for relief. A motion for new trial must be filed within 30 days from when the Judge has signed the order or judgment, and this time cannot be extended. Because time is of the essence, it is important to discuss this option with an attorney as soon as possible.

A motion for new trial asks the court to give you a second opportunity to present your evidence and legal arguments so that the outcome will be more equitable. This is done by filing a motion that points out the legal errors of the judge’s ruling. If the motion is granted, you will be given an opportunity to present testimony and evidence at a new trial before the judge makes a new ruling. However, there is no guarantee that a new trial will result in a different decision from the court.

A motion for new trial is also a useful tool in extending deadlines for appeal, so even if the likelihood of a judge granting the motion is low, there still might be an important reason for filing.

Motion to Reconsider

If you have qualms with a specific ruling the court has made, or you believe the judge should have made a different decision based on the evidence and arguments that were previously presented at trial, a motion to reconsider is the most appropriate form of relief. Like a motion for new trial, a motion to reconsider specifically states the errors of the judge’s decision and provides legal arguments and support for why the court’s decision is erroneous. This motion does not ask the court to give you a second or new trial, but rather, a motion to reconsider asks the court to reconsider its ruling based on the evidence and record that already exists from the trial. This relief is most appropriate when you believe the court’s decision should be different based on the evidence and arguments that were presented at the final hearing. You’re not seeking an opportunity to present new evidence. Instead, you will use the record from the trial to illustrate why the Court should have come to a different decision based on the applicable law.

Appeal

If neither a motion for new trial nor motion to reconsider are successful, the only way to overturn the trial court’s ruling is through an appeal.  Appeals are an extremely slow process and can take a year or more before a decision is made.  Depending on the circumstances, an appeal might be appropriate in your case, or you may be better off waiting and filing a modification down the road (if the disputed issues relate to custody or child support).

Blog post by Shmyla Alam

 

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The holiday season is a special time for getting together with loved ones to make lasting memories with your children.  This is especially important for divorced families.  If you find yourself recently divorced, in a challenging co-parenting relationship, or trying to blend families due to a new relationship, the holiday season may add a layer of stress for you.  Here are some tips to help you manage the holiday season so that you and your child can experience the wonder and joy that this time of year brings.

Tip One: Review your possession order.  You may have standard possession order for holidays, or you may have a customized order.  There are numerous ways to split time with the child during the holiday season with the other parent, and you want to be sure you understand exactly what your schedule entails.  Knowledge is power, and the more you know, the less surprises arise.  It can also help you talk to your child about who the child will be with at specific times during the holiday season.  For example, if you do not have your child this year on Christmas, you can let your child know that you will celebrate together on a different day.

Tip Two:  Talk about gifts with your co-parent.  By doing this you can avoid the child receiving multiples of a particular item.  You should discuss this with your co-parent and other members of your family too.  If the child is with the other parent on Christmas but Santa visits your home, too, it will be much less confusing to the child if Santa leaves different presents for the child at each house.  It will also save you from having to explain what happened to your child because we all know Santa knows and sees everything.

Tip Three:  Keep exchanges of the child stress free.  If you now that someone in your life is a trigger person for the other parent, then keep them out of the child exchange process.  For example, if you are in a new relationship and you know your new person and the other parent do not get along, your new person should not be present at the exchange.  If your new person must be there, having the new person stay in the car or in the house but out of sight is best.  If you and the other parent are having a difficult time, then you can designate a competent adult to handle the exchange for you (assuming your order provides for that).  If you decide to do this, let the other parent know who will be picking the child up instead.

Tip Four: Start a new tradition.  If this is your first year to navigate the holiday season while splitting time with the child with the other parent, this is particularly important and can be a lot of fun.  Children are wise, and they know things are not the same now that you are divorced.  Start making new memories.  Have a cookie decorating contest with your child, make homemade pizzas, get funny slippers to wear around the house, start an ornament collection, or write letters to your child  about things that happened during the year and put it in the child’s stocking.  If your child is old enough, let your child choose a tradition he or she would like to start.

Tip Five: Take care of yourself.  While it is important to help create new memories for your child, you also need to take care of yourself and plan things to do when you are not with your child.  You may find that you are anxious and sad when your child is not with you, especially on the holidays.  It is important to plan some fun things that you enjoy so that you do not focus on the fact they are not with you.  Remember, you still get to celebrate with your child, just in a new and different way.

Blog post by Brandi Crozier

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In divorces and cases involving the parent-child relationship, the court will establish a parenting plan that is in the best interest of the child. This parenting plan includes the rights and duties of a conservator and a possession schedule for the child. Courts may consider several factors when determining what is in the best interest of the child, but the Texas Family Code provides some guidance when it comes to possession schedules. Texas law presumes that the Standard Possession Order provided in the Texas Family Code is in the best interest of the child. But this presumption does not apply to children under 3 years of age. This means that when dealing with a child under 3 years old, there is no standard schedule or any guidance in the Texas Family Code. This doesn’t mean the court will not award the standard possession schedule, but it does mean the standard possession schedule is not always the court’s default possession order. When dealing with possession or custody schedules for a child under three, the court will look at many factors. These factors will include the age and development of the child, the length of time the parents have been separated, the relative involvement of each parent in the child’s life up to that point, and the distance between the parents’ residences. Based on these factors, the court will determine what type of schedule will help the child develop and maintain a healthy and trusting relationship with both parents.

Children under the age of three are still developing and have different needs than older children. Parents are always able to present agreed possession schedules to the court for approval, but it is important to keep a few things in mind when developing a visitation schedule for children under three. Having shorter but more frequent visits between the noncustodial parent and the child will help the child feel secure and develop trust with the noncustodial parent. Frequent and consistent visits will also help the child develop a healthy attachment to both parents. Depending on the age of the child at the beginning of the case, the visitation schedule may be divided in to three periods: birth to 18 months, 18 months to 3 years, and finally 3 years and older. The child will have different needs throughout these stages, so it is best to have a step up or change in the possession schedule at each stage that will support healthy development and emotional attachment with both parents. It is a good idea to include gradual steps towards either the standard possession order or a mutually agreed upon possession schedule once the child turns three. This will prevent the need for either parent to seek a modification of the possession schedule once the child is older than three. This is also beneficial since the frequent but shorter visits may become cumbersome for both the parents and the child as the child gets older.

While the best interest of the child is always the primary concern for family courts and judges, it is important to recognize that for young children, the standard possession schedule is not always best. If your divorce or child custody case involves a child under three, it is so important to develop a phased or stair step possession schedule that will continue to serve your child’s needs as he or she continues to grow and develop. Contact The Draper Law Firm to help you create and establish a possession schedule that is in the best interest of your child.

Blog post by Shmyla Alam

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A premarital agreement or “prenup” is an agreement between prospective spouses to alter their marital property rights without court involvement. Chapter four of the Texas Family Code governs these types of agreements.  Parties can agree to the division of household responsibilities, payment of support and living expenses, sharing of child-rearing responsibilities, religious upbringing of children, procedures for conflict resolution, and the disposition of property in the event the relationship ends.  Almost anything that the parties think of can be included so long as it does not (1) violate public policy or a criminal statute, (2) adversely affect a child’s right to support, or (3) defraud a creditor.  Premarital agreements are used to cover both current and future assets.

Who should get a premarital agreement?

Many people believe that premarital agreements are just for the wealthy.  That is not necessarily the case.  Any couple who wishes to pass separate property to children from a prior marriage, avoid conflict in the event of divorce, protect their spouses from each other’s debts, or clarify financial responsibilities may want to consider a prenup.  If a couple chooses to make a prenup, the best practice is to require separate legal representation for each party.  Separate representation helps avoid potential arguments that one party had unequal bargaining power over the other.

What are the requirements for a binding premarital agreement?

In order to be enforceable, a premarital agreement must be in writing.  The parties must fully disclose all property and financial obligations.  The agreement must be signed by both parties before they marry, and it must be sworn to so that it can be recorded in the court records where relevant property is located.  Neither party is required to pay for a premarital agreement.  The only consideration required is the parties’ mutual promises to marry; however, a premarital agreement must be signed voluntarily.  It will not be effective if one party is under duress when they sign.

When does a premarital agreement become effective?

A premarital agreement becomes effective on the date of marriage even though it must be signed before the marriage.  There is no specific requirement on what type of marriage ceremony the couple must have in order to make the agreement effective.

What should I do if my partner wants a prenup?

The first thing you should do is have a conversation with your partner to understand what his or her goals are in asking for a premarital agreement.  Keep in mind that the decision on whether or not to sign a premarital agreement is a personal decision and does not reflect on the level of love or trust in your relationship.  You should look for an attorney to review the premarital agreement independent from your partner’s attorney.  Don’t be afraid to ask questions and importantly, communication with your partner is key.

What if I don’t sign a premarital agreement?

If a couple chooses not to sign a premarital agreement, Texas law governs the division of property and debts in the event of a Texas divorce.  Texas is a community property state, which means that each party will own 50% of all property accumulated during the marriage (including salary, real property, retirement, and personal property).  Any property that the party accumulated prior to the marriage remains that party’s separate property, but the burden is on the spouse claiming separate property to prove it.  A court will divide the community property if the parties cannot agree.

Blog post by Samantha Mori

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In Texas family law cases involving children, one parent is often ordered to pay child support to the other. For one reason or another, a parent may fall behind on child support payments. If you are the parent who has been ordered to pay child support, you may be wondering what can happen to you if you fall behind. In the alternative, if you are the parent receiving child support, you may be wondering what you can do about the other parent failing to pay. There are several potential ramifications if a parent fails to pay his or her child support obligation. Below are several ways a child support order may be enforced.

Contempt: A person can be held in either civil or criminal contempt for unpaid child support. In civil contempt cases, the court may order confinement in jail for up to six months and may issue a fine for each missed child support payment. A jail sentence must be served even if full payment is subsequently made. Criminal contempt cases entail an obligor being sentenced to jail until the individual complies with the court order. Typically, the order states the obligor is to pay a certain amount of money or pay all of the unpaid support.  Sometimes courts will issue a suspended commitment, meaning the jail sentence is suspended so long as the obligor makes all child support and arrearage payments going forward.  Courts can also put the obligor on probation for a period of time.

License Suspension: If a person fails to pay child support, his or her licenses may be suspended. This applies to a driver’s license, but it may also include hunting, fishing, and even processional licenses.

Passport Denial: A person may be denied a new or renewed passport if they fail to comply with a child support order.

Lottery Prizes: Although this one rarely occurs, a person’s lottery prizes can be intercepted and applied towards child support and dental and medical support arrears.

Liens: Many people do not realize child support arrears can cause a lien to be placed on a person’s property. A lien can be filed on a person’s property, bank accounts, retirement accounts, and even personal injury claims. It is important to note that a lien cannot be placed on a person’s homestead if it is exempt under the Texas Constitution or the Property Code. If a lien is improperly placed on your homestead property, contact an attorney to assist you with having the lien removed.

Tax Refunds:  The Attorney General will often intercept tax refunds from anyone with past due child support obligations.

It is important to stay on top of your child support obligation to prevent the above measures from being taken against you. If you have lost your job or had a change in employment and can no longer afford your current child support obligation, contact an attorney to assist you in having your child support amount lowered as soon as possible.  Remember, you can never modify child support going backward.  You can only modify it going forward.  If you are a parent who is to receive child support and the other parent has fallen behind, you can contact the Attorney General’s Office for assistance with an enforcement action. You can also contact an attorney to bring an enforcement action on your behalf. Often, private attorneys are able to bring a child support enforcement action much more swiftly than the Attorney General’s office. Regardless of your situation, The Draper Law Firm is here to assist you with various child support issues.

Blog Post by Sarah Marrone

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In Texas, most courts will order a geographic restriction as part of any child custody proceeding.  One parent is often awarded the exclusive right to designate the child’s primary residence.  A geographic restriction limits the child’s primary residence to a designated area. In cases where neither parent is given the right to designate the primary residence, the geographic restriction limits where both parents can live with the child.

Why do we have Geographic Restrictions?

The public policy of the State of Texas is to assure that children have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child.  Courts should encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

A geographic restriction prevents custodial parents from moving the child outside a particular area without agreement from the noncustodial parent or a court order.  In some cases, neither parent is awarded the right to designate the primary residence, and the parties need guidance on where the child will live.  A geographic restriction will provide parents with that guidance.

How big is the Geographically Restricted Area?

Each court handles geographic restrictions slightly differently, and the size of the geographic restriction varies.  In Collin County, judges will often order restrictions that read, “Collin County and counties contiguous to Collin County.”  A restriction worded that way would allow the custodial parent to move the child’s primary residence anywhere within Collin County or a county contiguous to Collin County, but not outside of that area.  Sometimes judges will restrict the residence to only the county.

If you go to court, you may not have as much flexibility in determining your specific geographic restriction.  We encourage parties to work together to negotiate geographic restrictions that will fit their unique needs.  You should work with your attorney to find a geographic restriction that works for you.  Do not feel bound by broad county restrictions.  If you are negotiating a settlement, you can tailor a geographic restriction based on a specific intersection, school districts, or other landmarks. You can use city boundaries, a radius based on a specific point, or boundaries drawn on a map.

Keep in mind that your possession schedule will also impact your geographic restriction.  A 50/50 possession schedule will require a much narrower geographic restriction because it is in the child’s best interest to limit long drive times.  Even with an expanded standard possession order, the further apart the parents live, the harder it is on everyone for exchanges.  You should consider how long it will take for the child to get to school or daycare, extracurricular activities, and how far apart the parents’ residences will be.

Is my Geographic Restriction permanent? 

Yes and No.  The geographic restriction is in effect until one the following: 1) written agreement between the parents or 2) court order.  If a parent wishes to move the child outside the geographically restricted area, he or she will have to get permission from the other parent in writing.

If the parties cannot agree, the parent wishing to move the child will have to file to modify the order that includes the geographic restriction.  The likelihood of winning a modification will depend on the facts of your situation.  Several factors affect whether a court will order a modification of the restriction, including:

  • whether the move is in the best of the child;
  • the involvement of the parent opposing the move;
  • reason for the move;
  • comparison of education, health, and extracurricular opportunities;
  • special needs or talents of the child;
  • effect on extended family relationships;
  • effect on possession and access with the noncustodial parent; and
  • whether the noncustodial parent has the ability to relocate.

Can I move without a court order or agreement?

No.  If you move the child without agreement from the other parent or a court order allowing you to do so, you may violate your orders.  Your violation could serve as grounds for the other parent to modify custody.  You could face contempt of court, resulting in court-ordered punishments of fines or jail time.  Additionally, the other parent could file a petition to return the child.

Can I move if the other parent moves?

Maybe, but it depends on how your court order is worded.  Many geographic restrictions are worded such that the restriction only applies if the non-custodial parent resides within that zone, but that is not always the case.  If the other parent moves out of the permitted zone and your order allows for it, you can move outside of the zone.  If the other parent has not moved too far, be prepared for that parent to file to modify in an effort to keep you close.

If you are considering moving outside of the area designated in your order, be sure to consult an attorney to find out your options before committing to the move.  The last thing you want to do is have money invested in a move only to find out the court will not allow your child to move there.

Blog post by Samantha Mori

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Many families find themselves faced with the challenges of separation and divorce. Divorce can be a very stressful time in someone’s life. It is often said to be one of the most difficult transitions a person may face. One way to lessen the stress of the divorce process is for you and your spouse to divorce amicably. Here are five tips to assist anyone who may be interested in proceeding through the divorce process in an amicable manner:

  1. Find an attorney that understands your goal of an amicable divorce. Selecting your counsel is one of the most important decisions you will make during the divorce process. If you would like to minimize the contention during your case, you must ensure you hire an attorney who understands your goals and is capable of keeping your desire for an amicable resolution at the forefront of the process.
  1. Utilize a waiver of service. A waiver of service is a document that can be signed by your spouse after receiving a copy of the Original Petition for Divorce. If the waiver of service is properly executed, you will not have to have your spouse personally served with the petition. No one wants to be personally served. Many individuals going through divorce are served with papers at their place of work or home. This can be embarrassing and will likely make them angry. If your goal is an amicable divorce, it is usually preferable to begin by providing your spouse with a waiver of service to sign. If they refuse to sign the waiver of service, your attorney can then have your spouse personally served.
  1. Go to mediation. Many people are adamant they do not want their case to go to mediation. The general negative feeling towards mediation is often unwarranted. Most courts now require parties to attend mediation prior to the case proceeding to trial. This is because many cases can be resolved by utilizing an impartial third party to help the parties reach a resolution. Settling in mediation will save both sides money and lessen the stress that accompanies trial. In most cases, mediation leads to a better resolution for both sides. This is because mediation allows the parties and attorneys to be creative when creating a solution. When attending mediation be sure you go into the process with an open mind and a positive attitude. If you decide the process will fail before you even begin, the process is more likely to fail. Try to keep the focus on your goals and reaching a resolution both you and your spouse can live with. Remember, no settlement agreement is ever perfect for either side, but it is usually better than what the outcome would be at trial.  Even though it may be tempting, it is not a good idea to go to mediation without an attorney.  The mediator’s job is to get a deal done, and she cannot give you legal advice.
  1. Consider seeing a therapist. The end of a marriage is a very emotional transition for everyone involved. It affects the parties and the children. It is important to be aware of your emotional state and to recognize when you may need the assistance of a therapist or counselor. Many individuals need to be able to speak to someone such as a counselor or therapist to help them through this transition. Dealing with your emotions in a healthy way will assist you in keeping the divorce process amicable and preventing resentment. Divorces surrounded by resentment and anger tend to take longer to resolve and are ultimately more costly for both parties.
  1. Focus on the future. Remember that this is a time of transition. You are transitioning out of your marriage and into the next phase of your life. Focusing on the future is even more important to those who have children. If children are involved, you will continue to have a relationship with your spouse even after the divorce is finalized. There is no better time than the present to begin practicing communicating with the other parent. Even if you and your spouse were not ultimately successful long-term partners, you can still be successful co-parents. Parents who divorce amicably are typically better equipped down the road to resolve parenting disputes without the court intervening. Rather than getting hung up on the minutia, focus on your overall goals. If you hire an attorney who understands your goals, your attorney will be able to assist you with staying focused on what is most important.

Take the time to discuss these points when consulting with an attorney. At The Draper Law Firm, we understand this is a difficult time for you and your family and we are ready to help guide you through the process.

Blog post by Sarah Marrone

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Depending on the circumstances of your divorce or family law case, you may hear the Latin terms “amicus” and “ad litem” referenced by the attorneys or the judge in your case. We’re here to help clarify the purpose of an amicus attorney and an ad litem and explain when it would be beneficial to have either one appointed to your case.

The word “amicus” means “friend of the court.” When an amicus attorney is appointed in your case, it is important to know that the amicus does not represent any of the parties or children involved in the case. Rather, the purpose of an amicus is to gather information and help the court determine what is in the best interest of the child. The amicus will not only interview the parties and the children involved but will likely gather information from any other individuals that have valuable or relevant information. This can include teachers, counselors, doctors or other family members that are not parties to the case. This process allows the amicus to gather a significant amount of information, which can include evidence that may not be admissible in a hearing. Requesting that an amicus be appointed in your case is beneficial when the case is very contentious or involves a question of whether a party may be causing significant impairment or harm to a child.

“Ad litem” means “to represent in litigation.”  There are two types of ad litems we see in family law cases: an attorney ad litem and a guardian ad litem.  Unlike an amicus attorney, an attorney ad litem is appointed to represent the interests of a party.  In Texas, a Court may appoint an attorney ad litem when a party is not capable of representing himself or when a party has been served by publication.  An attorney ad litem is sometimes appointed to represent the child and advocate for what the child wants.  In cases involving CPS, the Court will always appoint an attorney ad litem in order to ensure that the child’s interests are protected.  A guardian ad litem may or may not be an attorney and is appointed to represent the best interests of a child.  Occasionally, a court will appoint an attorney in the dual role if attorney ad litem and guardian ad litem for a child.  In the event there is a conflict between what the child wants and what is in the child’s best interest, both need to be appointed.  CASA often serves as the guardian ad litem for the child in CPS cases in certain counties.

If your custody matter is complex, an amicus attorney or an ad litem may be an important tool to protect the child’s interests. Contact the attorneys at The Draper Law Firm, P.C. We’re ready to help.

Blog post by Shmyla Alam

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