Today the Texas Supreme Court issued its opinion in the landmark child custody case In re C.J.C.  Holly Draper served as lead counsel for the father, with Brad LaMorgese of Orsinger, Nelson, Downing and Anderson serving as co-counsel.  The case began back in 2018 when the child’s mother was tragically killed in a car accident.  The child was three at the time.  Both the maternal grandparents and the mother’s fiance sued for joint custody with the father.  The Court of Appeals ruled the grandparents did not have a right to sue for custody because they could not prove the father was unfit, and the grandparents were dismissed from the suit.  Texas law did not include a similar requirement that the fiance prove the father was unfit, so he was allowed to remain in the case.  A Denton County judge then gave the fiance rights and possession time with the little girl over the father’s objections.  We sought relief from the Texas Supreme Court, arguing that the trial judge violated the fit father’s constitutional rights when she gave rights and possession to a non-parent.

The case has garnered national attention, with nine different organizations filing amicus briefs into the case in support of our position.  The State of Texas and the Texas Public Policy Foundation participated with Holly Draper in oral arguments in support of the father.  Oral arguments were held via zoom on April 22 after COVID-19 delayed the original argument date.

The Court’s ruling today is a huge victory for parents in Texas.  Eight justices joined the majority opinion, with Justice Lehrmann issuing a concurring opinion.  The majority opinion found this case to be very similar to the landmark United States Supreme Case of Troxel v. Granville and rejected the opposing party’s position that the fit parent presumption should not apply because this case involved a modification.  The Court held that “we read any best-interest determination in which the court weighs a fit parent’s rights against a claim to conservatorship or access by a nonparent to include a presumption that a fit parent acts in his or her child’s best interests.”  The Court also clearly found the father to be fit in this case.  You can read the entire opinion here.

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Today we are discussing some basic “Dos” and “Don’ts” to help you with some legal issues that may arise during and as a result of the COVID-19 pandemic. Check out the links for more information and resources.

DOs:

  • DO plan for your future with a will, living, will, statutory durable power of attorney, and medical power of attorney.
    • Every adult should have these four documents to ensure that (1) your assets pass according to your wishes; (2) you choose the end-of-life medical treatment that you want; and (3) you decide who will make medical and financial decisions for you in the event you are unable to make them for yourself.
    • Many attorneys, including the attorneys at The Draper Law Firm, are working hard to continue to provide these services to clients throughout the state. Due to the coronavirus, many attorneys are not providing in-person execution of these packages, but there are options to have these executed.  We are actively monitoring possible changes in the law that would allow for virtual signings.
  • DO continue paying your child support obligation.
  • DO follow your court ordered possession and access schedule.
  • DO co-parent to do what is in the best interest of your child.
    • Nothing about the current circumstances is normal. We encourage you to communicate and work with your co-parent to find creative and agreeable solutions to problems that may arise during this time.
  • DO reach out to resources that can help if you are struggling.

DON’Ts

  • DON’T ignore shelter-in-place orders.
    • Most counties in the state have issued shelter-in-place or other orders restricting movement. Only essential businesses remain open.  If you are required to go out, you should follow the CDC recommendations to protect yourself.
    • Remember, exchange of children according to a possession and access schedule is considered essential, but please be smart about this and do what is needed to keep your children and community safe.
    • Collin County Order, Dallas County Order, Denton County Order
  • DON’T participate in unnecessary travel.
    • Much like ignoring the shelter-in-place orders, traveling unnecessarily exposes you, your children, and others that you interact with to the virus.
  • DON’T assume the courts are closed.
    • If you have legal concerns, remember that attorneys are still operating to meet the needs of their clients. Courts are holding virtual hearings for most matters and the legal community is working together to find creative solutions to issues that may arise.
  • DON’T assume you are entitled to 100% percent of a stimulus check.
    • The government recently passed legislation that will entitle many adults to stimulus checks for themselves and their dependents.  If you are married, this money is community property and is subject to division in a divorce.  If you have questions or concerns about what effect your recent or pending divorce will have on a stimulus check, you should reach out to your attorney.
    • While back-owed taxes and defaulted student loan payments will not prevent payment, a stimulus check can be seized for past-due child support.
  • DON’T be afraid to reach out to your attorney.
    • Your attorney is there to answer case specific questions that may arise as a result of COVID-19.  Please keep in mind that this is uncharted territory for all of us, and sometimes the only correct answer is that we don’t know.

Blog post by Samantha Mori.

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The outbreak of COVID-19 has had a significant impact on most people’s day-to-day lives.  Businesses shut down, schools closed, and people are uncertain in many areas of their lives.  Many counties (including Collin, Dallas, Denton, and Tarrant) have issued “shelter-in-place” or “stay-at-home” orders that restrict leaving home to essential activities only.  School closures and various (sometimes conflicting) shelter-in-place orders have left parents concerned about how this will affect possession and access schedules.

The Texas Supreme Court recently issued guidance on this topic.  On March 24, 2020, the Court issued its Seventh Emergency Order Regarding the Covid-19 State of Disaster.  The Court ordered “for purposes of determining a person’s right to possession of and access to a child under a court-ordered possession schedule, the existing trial court order shall control in all instances.  Possession of and access to a child shall not be affected by any shelter-in-place order or other order restricting movement issued by a government entity that arises from an epidemic or pandemic, including what is commonly referred to as the COVID-19 pandemic.”

What does this mean for parents? 

The Supreme Court has ordered that parents must continue to follow the possession and access schedule as ordered by their court.  This means that possession and access to a child are not affected by any shelter-in-place that your city or county has issued.  In fact, many shelter-in-place orders explicitly state that traveling to exchange the children is not a violation of the orders.

What if you believe your child is at risk by going to the other parent?

The Texas Supreme Court has thus far not issued exceptions that would permit a parent to withhold a child on the basis that the child is at risk of exposure to coronavirus.  We strongly recommend working with your co-parent to do what is in the best interest of your child under the circumstances.  Absent an agreement between the parents, the court ordered possession and access schedule is still in effect.  Although we expect courts to be lenient when a parent is reasonable in taking certain actions to keep a child safe, a party who does not follow the court-ordered schedule could be subject to court action, such as contempt of court.  If you have concerns about this issue, you should reach out to a family law attorney familiar with your court, as this situation will be case and fact specific.

What if schools stay closed?

Texas courts have given a great deal of guidance about how school closures impact child custody schedules, which are usually based on school schedules.  After several counties put out orders related to school closures, the Texas Supreme Court did the same.  In short, parents need to follow the originally published school calendar for possession and access unless they agree otherwise.  You can find the full text of the Texas Supreme Court’s order on possession during school closures here.

But aren’t the courts shut down?

The district courts in Texas are operating differently due to the COVID-19 pandemic, but they are still operating.  Many hearings are now conducted virtually via zoom.  Only hearings on essential matters can happen in person, but even those hearings can be conducted virtually by agreement.  Clerks are still processing filings and the court systems are still functioning and moving cases forward.  Many attorneys (including those in our firm) are working virtually and continuing to file cases and move cases forward on behalf of family law clients.

This is a constantly changing situation, and new orders have come out regularly from various state and local courts over the past few weeks.  For those in Collin County, Judge Emily Miskel of the 470th Judicial District Court is trying to keep up-to-date emergency orders posted here.  The Collin County District Courts Facebook page regularly posts updates with helpful information as well.

(Blog post by Samantha Mori and Holly Draper)

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The Draper Law Firm has been largely virtual since 2008.  With many lawyers forced to go virtual due to the coronavirus situation, here a few helpful resources for making the transition:

Phone System – Having a VoIP based phone system is extremely helpful when you are virtual.  It allows people to use their office number from anywhere via a desktop or mobile app without ever having to give out a personal cell phone number.  Our firm uses Ring Central.  Grasshopper is another example, but a search for “VoIP for business” will give you a lot of good options.

Answering Services – Having a backup answering service can be very helpful when everyone is working from home, especially since many people are now also managing their children’s schooling from home at the same time.  Our firm uses Lex Reception, but other options include Ruby Receptionist, Answering Legal and Smith.AI.  During business hours, our phone system will ring to our legal assistant first, but if she is unable to answer for whatever reason, it will switch over to the answering service.

Video Conferencing – Don’t you wish you had bought stock in Zoom a month ago?  Video conferencing is extremely important during a time when we cannot have much face-to-face interaction.  Ring Central includes a video meeting component powered by Zoom.  Zoom offers a free option, but it limits the length of meeting time.  GoToMeeting, Skype and FaceTime are other options.  FaceTime requires each person have an apple device, so I do not think that is the best option for office use.

Cloud-Based Storage –  This is critical to operating virtually, as it allows everyone in your office to access and work on the same documents without e-mailing things back and forth.  We use DropBox for business, which is secure and HIPAA compliant.  Other options include ShareFile.com, Egnyte.com, Box.com, Clinked.com, and Google Drive.  Texas Ethics Opinion 680 provides that a lawyer may use a cloud-based electronic data storage system to store client confidential information, but lawyers must take reasonable precautions related to data breaches, unauthorized access, and the disclosure of confidential information.

E-Signing Software-  Use software that allows people to sign documents electronically  such as Adobe Acrobat Pro or DocuSign.  We send out forms through Clio Grow, which allows clients to fill out questionnaires and sign fee agreements electronically.

Practice Management Programs – Our firm uses Clio Manage for practice management.  It allows for time keeping, billing, calendars, reporting, task management, and has greatly streamlined the case management process for our firm.  Other examples of practice management programs or task management programs are MyCase, Practice Panther, and RocketMatter, Monday.com, Dubsado, Padio, Trello, Asana, and Smokeball.

Office Essentials – Every person in the firm should have their own laptop and printer / scanner / copier.  When you are largely paperless, you don’t need the huge copier systems that many firms have at the office.  An at-home all-in-one printer for less than $200 will be perfectly sufficient.  It is important to either have a good shredder or have a lockable box for storing to-be-shredded documents.  Once it is full, have a shredding company come shred it.

If you have other resources you think would be helpful, feel free to share them with us using the Contact form and we will update accordingly!

 

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Did you know that under the current state of the law in Texas, it is easier for a non-relative who had minimal involvement with a child but lived under the same roof to get in the door on a custody suit than it is for a grandparent or other family member?  Unfortunately, once someone gets in the door and has “standing” to sue for custody, the Texas Family Code does not provide any statutory protections for fit parents beyond a presumption in original suits that a parent should be appointed as the managing conservator over a non-parent.

The Texas Family Code might not protect fit parents, but the United States Constitution does.  The United States Supreme Court held in the landmark case of Troxel v. Granville, 530 U.S. 57 (2000), that the due process clause of the fourteenth amendment protects the rights of a fit parent to parent as he or she sees fit, without government interference.  The U.S. Supreme Court specifically found that “[t]he Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made.”

The Draper Law Firm currently represents the father (“Relator”) in a mandamus proceeding currently pending before the Texas Supreme Court (In re C.J.C., Texas Supreme Court Case No. 19-0694).  We are arguing that the trial court judge abused her discretion and violated the father’s constitutional rights when she awarded rights and possession to a non-parent (the deceased mother’s fiance) over the fit father’s objections.

The case has garnered a lot of attention both within Texas and nationally, as six amicus curiae have filed briefs in support of our position.  Five non-profit organizations – the Texas Public Policy Foundation, the Texas Home School Coalition, the Parental Rights Foundation, the Alliance Defending Freedom, and A Voice for Choice Advocacy – have filed amicus briefs arguing for the protection of parental rights and asking the Texas Supreme Court to grant our petition.  Notably, the Texas Attorney General and the Texas Solicitor General filed an amicus brief on behalf of the State of Texas in support of our position.  This kind of amicus support in a family law case is exceedingly rare, and it underscores the importance of the issues involved in this case.

The Texas Supreme Court has set the case for oral argument on March 24, 2020 at 9:00 a.m.  Holly Draper will be arguing on behalf of the father, seeking to have the Texas Supreme Court render an opinion that would protect the rights of all fit parents in Texas.  Both the State of Texas and the Texas Public Policy Foundation have filed motions requesting to participate in oral argument.  If you are interested in learning more about the case, all of the briefs and filings can be found here.  The Texas Supreme Court live streams all oral arguments.  The site for viewing live oral arguments or searching for past oral arguments can be found here.

 

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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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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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Texas is a community property state, and all property belonging to either spouse is presumed to be community property.  Property that either spouse had before the marriage, along with any property either spouse received as a gift or through inheritance, is the separate property of that spouse.  The burden is on the spouse claiming separate property to prove it.  Although there are a number of ways of proving separate property, below are a few issues that commonly arise.

The longer a couple has been married, the harder it can be to prove what one spouse had before the marriage.  Most people do not keep financial records when they get married thinking, “I’d better keep this statement so I can show how much was in my 401(k) at the time of marriage just in case we divorce in 20 years.”  Often people switch jobs and 401(k)s get rolled over, sometimes multiple times, which can make tracing back to the beginning of the marriage a challenge.  The spouse trying to prove separate property will need to show how much was in the account at the time of marriage and that it never went below that amount during the marriage.

Certain types of property are easier to trace than others.  For example, if one spouse owned a home before the marriage, it is easy to look at the property records and show that he or she purchased the house before marriage.  Be warned, though, that if you ever add your spouse to the deed, it will likely be presumed that you gifted your spouse half of the house.  This seems to happen regularly when a couple wants to refinance a separate property house.

When one spouse receives a gift or inheritance during the marriage, that spouse will also need to trace the money in order to confirm it as separate property.  If separate property is co-mingled with community property, this can become more difficult to do.

Example A:  In 2004, Husband receives a $10,000 inheritance.  Husband puts it into a bank account in his name alone and never puts other money in that account.  In 2014, money from the account is used as a down payment on a house for the couple.  In 2017, the couple divorces.  Husband should easily be able to trace the down payment back to his separate property account with a cancelled check or confirmation of a wire transfer, plus proof of where the funds in that account originally came from.  His chances of receiving his money back from the down payment are high.

Example B:  In 2004, Husband receives a $10,000 inheritance and puts it into a joint bank account. Over the years, the parties deposit their paychecks into the account and pay their bills and various other expenses out of the account.  In 2014, money from the account is used as a down payment on a house.  In 2017, the couple divorces.  Husband will have a much more difficult time proving that the down payment came from his separate property inheritance.  He would need to hire a forensic accountant to trace the funds in the account, which could cost just as much as the separate property at issue.

Establishing separate property can be a difficult task if the parties do not keep good records or if they co-mingle funds.

The Draper Law Firm, P.C.

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