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.

0

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.

Grandparents' Rights pic

0

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

0

Many clients have questions about mediation. They have heard the term but are not sure what it means or why it is advantageous when they have a list of demands and are pretty sure the other party will not agree to all of them.

Mediation is a very productive tool in family law cases. It is more of a collaborative approach to resolving a family law case and far less adversarial than going to trial and airing everyone’s dirty laundry on the record. Both parties are represented by counsel in mediation and are typically in separate rooms. A neutral third-party (the mediator) works with the parties and their respective attorneys in an attempt to reach a final agreement in the case. Many courts require mediation. Denton and Collin Counties both require mediation before final trial.

While each party to a divorce or child custody matter comes into the case with his or her own unique perspective and list of demands, if children are involved it’s important that they can each focus on the best interests of the child. Each party’s attorney will work to prepare them for mediation. They will give them the lay of the land and work on a proposed settlement offer prior to the day of mediation. It is important that the parties have completed and provided any necessary documents such as inventory and appraisements, proof of income and proposed possession schedules to their attorneys, if requested. This helps save valuable time in mediation.

Mediators can help parties and attorneys think outside of the box and get very creative with language to include in a final order. Further, the parties can agree to things in mediation that a judge could never order in a trial.  Examples include possession schedules for pets, creative ways to allocate community assets that are not yet liquid, and unique possession schedules for the children that are personally tailored to a particular family’s lives. Often, while each party has their list of demands, each tends to have different priorities.  By focusing on priorities, we can encourage a settlement that both are reasonably happy with.

Once an agreement is reached and the mediated settlement agreement signed, both parties know exactly what the key terms of the final order will contain. There is no guessing what a judge or jury will do. The parties don’t have to leave mediation discouraged only to find that the attorney needs to conduct more discovery, file more motions and prepare for a full day (or longer) trial in his or her case.

Best of all, after a successful mediation, parents can simply focus on moving forward with their lives and  their children without the worry of litigation looming. After mediation, attorneys will work to draft an order based on the agreements reached that will be signed by all parties and attorneys. That order will then be entered, signed by the judge and the case closed.  The order is usually significantly longer than the mediated settlement agreement, but the terms will all be the same. (Blog post by Soheyla Dixon)

The Draper Firm

0

In most courts in Collin, Denton and Dallas counties, mediation is required before you can have a final trial in a family law matter.  In some of the courts it isn’t required but is “strongly encouraged.”  In my opinion, almost every case is appropriate for mediation before you have a final trial.

Mediation is a confidential process that takes place outside of the courthouse.  The parties hire a neutral, third party mediator to help try and get the case settled.    Although some mediations occasionally involve an opening session with all parties, I have not seen that happen in a family law mediation in many years.  Each party sits in a separate room with his or her own attorney.  The mediator goes back and forth between the rooms to help the parties reach a settlement.  The parties usually won’t even see each other, unless they happen to cross paths walking to the restroom or the parking lot.

Mediation can be a very slow process.  Most divorces involving child custody issues will take a full, eight hour day.  Sometimes they can last well beyond eight hours if there are a lot of issues in dispute.  Cases involving only property issues can take less time unless there are significant property issues to address.  Although many mediators offer half day (four hour) mediations, it is extremely rare for a family law case to settle in that short of a time.

Although mediation can get expensive when you add up the mediator’s fees and attorney’s fees on both sides, it is usually a lot less expensive than going to trial.  Further, it is a great way to help get cases settled in creative ways.   Judges are limited in what they can order in a trial, but the parties can agree to all kinds of arrangements at mediation.

The vast majority of my clients are convinced that their cases  have no hope of settling at mediation, but the vast majority of those cases do actually settle at mediation.  Parties tend to think that if they cannot settle the dispute on their own, why would it settle at mediation?  But the reality is that mediators have jobs for a reason.  Their help can be critical to getting cases settled.

gavel

0

In Texas, grandparents have rights only in very limited circumstances.  The general rule is that the parents have a fundamental right to decide how much, if any, access a grandparent should have.  There are two different issues when dealing with grandparent cases:  (1) When does a grandparent have the ability to sue for custody? and (2)  When does a grandparent have the ability to sue for visitation?

Under the Texas Family Code, a grandparent has standing to sue for custody in a variety of ways.  First, the grandparent can sue for custody if any of the general standing requirements are met under Section 102.003(a) of the Texas Family Code.  These general standing requirements apply to all adults, not just grandparents, so in these situations the person’s status as a grandparent is not relevant.  Those grounds include: (1) a person with court-ordered visitation in another state or country; (2) the child’s guardian; (3) a person who has had actual care, control and possession of the child for at least six months; (4) a person designated as a managing conservator in an affidavit of relinquishment or given consent to adopt; or (5) a person who resided with the child and a recently deceased parent.  A grandparent also can gain standing under section 102.004(a) of the Texas Family Code if she has satisfactory proof that the child’s present circumstances will significantly impair the child’s physical health or emotional development.  The significant impairment must exist at the time suit is filed.

The standing rules are different when it comes to a grandparent just wanting visitation of a child.  In order for a grandparent to file suit for possession and access, the grandparent must prove that her son or daughter who is the child’s parent is unavailable.  This prong is met if the parent: (1) has been incarcerated for at least three months before the petition was filed; (2) has been judicially declared incompetent (3) is dead; or (4) does not have actual or court-ordered possession of or access to the child.  Essentially, it is presumed that if the grandparent’s child is in the picture, that person has the right to determine if the grandparent has access or not.  It is only when the child of the grandparent is out of the picture that the grandparent now has a right to file suit for possession and access.

If the grandparent can sue for possession and access under these terms and the child is with a parent, the grandparent must then show that the child’s physical health or emotional well-being would be significantly impaired if the grandparent is not given possession and access.  If a non-parent has custody, many courts have held that significant impairment need not be shown.  The grandparent must also prove that the parent or non-parent managing conservator intends to completely deny possession and access to the grandparent.

Grandparents' Rights pic

0

Waivers of service are quite common in family law cases in Texas.  They do exactly what they say – they waive service of process.   A waiver of service does NOT mean that the other person is not contesting anything in the case.

When I am trying to approach a divorce, child custody case, or any other family law matter in the most amicable way possible, I almost always ask the opposing party to sign a waiver of service.  This means that we will not be having a constable or private process server take the petition and citation and hand it to the person.  Instead, the opposing party is acknowledging receipt of the petition, providing up-to-date contact information for the court, and saying that he does not need to be served.  The waiver of service must be signed before a notary and filed with the court.  I generally have the opposing party return the waiver to me for filing.

In general, I have no issue with someone signing a waiver of service.  However, if you are asked to sign one, you need to read it very carefully to ensure you are not waiving any of your other rights.   I have seen waivers prepared by other attorneys that say the person is waiving the right to be notified of any future hearings or things like that.  The purpose of the waiver should be solely to waive being served and to enter your appearance before the court, nothing else.

If you someone presents you with a family law petition and a waiver of service and you plan to hire an attorney, you do not need to sign the waiver.  Instead, take the petition to the attorney.  The attorney will answer on your behalf.  This still eliminates the need to be served.

Why would we want to eliminate serving someone?  There are a few reasons.  First, most people do not want to be served, especially at work.  Therefore, asking them to sign a waiver eliminates that potentially unpleasant experience and sets the stage for a more amicable process.  Second, it costs money to serve someone.  You need to pay the clerk to issue a citation (and maybe more, depending on the circumstances), plus you need to pay for service by either the constable or a private process server.  I almost always use a private process server, as I find it to be the most effective means of serving someone.  However, if the opposing party is difficult to find or dodges service, the costs can skyrocket.

There are times when I do not use a waiver of service and move straight to serving someone.  Most often this occurs when the client needs urgent relief through some type of emergency order and/or temporary orders.  If we need to set a hearing right away, we will need to serve the other side.

If you are presented with a waiver of service and have any doubts about what you are signing, it is best to contact an attorney before signing.

facebookcover

0

If I had a nickel for every post I saw in a Facebook group looking for an “aggressive” family lawyer or a “pit bull” of a family law attorney, I would be a rich woman.  These types of requests make me cringe.  Instead, I wish people would seek out a good, knowledgeable attorney who will look out for their best interests and help them resolve the case in the best possible way.

More often than not, “aggressive” does not achieve those goals.  I know a handful of other attorneys who I would put into the “aggressive, pit bull” category, and they are awful to work with.  I feel terrible for my clients when there is one of these folks on the other side.  It almost always means higher bills, more discovery, more time spent in court, and more heartache in an already difficult situation.  Sure, you may be mad at your soon-to-be ex-spouse, and you may want to go after him with guns blazing.  An aggressive attorney is ready to go with those guns blazing at all costs, but is that really in your or your children’s best interest?  Or, would you be better off reaching a reasonable, fair settlement and moving on with your life without wasting tens of thousands of dollars on attorney’s fees?

In my opinion, the ideal attorney will do a great job on your behalf in court, but she will also help you try and avoid going to court at all.  She will work hard to keep your costs down, help you understand the process, help you know what is necessary and what is not in terms of discovery and court hearings, help you understand the most likely outcome if you do end up in court, and help you settle the case, if at all possible.

gavel

0

Almost every contested family law matter – divorce, child custody, CPS, termination of parental rights, paternity – ends up in mediation before a final trial.  Most, if not all, courts in Dallas County and Collin County require mediation before a final trial.

Mediation involves a neutral mediator – often an attorney but it does not have to be – who tries to help facilitate a settlement.  Normally, one party and her attorney are in one room and the other party and his attorney are in another.  The mediator goes back and forth between the rooms to try and reach a settlement.  Most of the time, I never even see the opposing party or that party’s attorney at the mediation.

Before I attend mediation with a client, I always prepare a confidential mediation statement that sets forth our side of the story for the mediator.  This helps save time at mediation.  Often times, I have found that the other side does not prepare a mediation statement.  I feel this gives my client a great advantage, as the mediator is starting the case with just our side of the story.

The vast majority of cases settle at mediation.   I have taken many cases to mediation that I thought could not be settled, and they have settled the majority of the time.  Even if a final settlement does not get reached, the parties can settle some of the issues to narrow down the issues for trial.

Areas of Practice pic

0

Certain child custody cases involve the appointment of an amicus attorney.  This is an attorney appointed by the court to help protect a child’s best interest.  The amicus attorney is providing legal services to the court – not the child – and therefore there is no attorney-client relationship between the amicus and the child.

An amicus attorney is not bound by a child’s desires and can disclose confidential communications with the child to the court to help the court determine the child’s best interest.

An amicus attorney can be requested by a party, but the court can also choose to appoint an amicus on its own.  Most of the time, the parties will bear the cost of the amicus.  Occasionally, the court will have the county pick up the expense, if it deems the appointment is necessary but cost-prohibitive to the parties.

An amicus attorney may be appointed in any case where the court needs to determine what is in the best interest of the child.  Appointment is most common in termination suits and parentage suits, in certain situations.

Child Custody

0