Today we welcome Christy Bradshaw Schmidt to the Texas Family Law Insiders Podcast.

Christy has been a Licensed Professional Counselor in Texas since 1997. After six years of working as a Family Court Counselor in Dallas County Family Court Services, she went out on her own conducting private child custody evaluations and serving as an expert consultant for attorneys. Christy also works with attorneys and their clients to develop child-friendly parenting plans.

Today we chat with her about child custody evaluations and:

  • Goals and outcomes in custody evaluations
  • How attorneys can help their clients prepare for custody evaluations
  • Money: balancing what you need with what you can afford
  • Mistakes attorneys make during custody evaluations
  • Challenging a custody evaluation
  • And More

Mentioned in this episode:

Transcript

Christy Bradshaw Schmidt: In the middle of a custody evaluation, give me a parent facilitator, give me an individual therapist, give me a reunification therapist. That’s great data, get those pieces in place early, and allow that to be part of your evaluation. And hopefully, you actually get a really good conclusion that can actually put an endpoint to that litigation and get that family moving forward.

Voiceover: You’re listening to the Texas Family Law insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: We’re excited today to welcome Christy Bradshaw Schmidt on the Texas Family Law Insiders Podcast. Christy has been a licensed professional counselor in Texas since 1997. After spending six years working as a family court counselor for Dallas County Family Court services, she went out on her own conducting private child custody evaluations and serving as an expert consultant for attorneys. She’s completed over 570 custody evaluations and provides expert testimony regarding issues such as relocation, children under three, parental alienation, and reunification. She’s also regularly retained by attorneys to conduct work product reviews, other mental health professionals evaluations, and related therapeutic work in the field of family law. Christy also works with attorneys and their clients in a consulting role to help develop child-friendly parenting plans. So thank you so much for joining us today.

Christy: Thanks for having me.

Holly: So start, let’s start out by, can you just tell us how you got started working in family law?

Christy: Sure. I kind of stumbled into this arena. This was not a field of study that they covered in graduate school. When I went so long ago, I didn’t know it existed. So I got out of graduate school, I went into clinical practice thinking that’s what I would do for the rest of my career. I would then about five years of working in residential treatment facilities and inpatient treatment facilities. Aside from getting tired of working holidays, I got very disenchanted, disenfranchised, disenchanted, excuse me, with managed care and not being allowed the time we needed to work with the patients that we had. 

I worked in residential treatment, initially, we had kids for a year and a half. And then it was like, get it done in 30 days and get them out. And that was extremely frustrating. And I was like, okay, I don’t know that I could do this forever. So I kind of went out and did something random for about six months, while I looked for a job in the newspaper. That’s how long ago that was. And that’s where I found the job at Family Court Services, didn’t know what this field was, didn’t know what this entailed. But that’s kind of where I got my foundation and my training, and about six to six years into that went out on my own. And then in my been in private practice ever since.

Holly: So generally describe what types of services you provide for family lawyers? 

Christy: Of course. I do custody evaluations, I do a very limited number of custody evaluations now, because I am trying to prevent another backlog like I had previously. I also do adoption evaluations, which are some oftentimes the best part of my job, they’re usually the most fun. And then I do expert work. I do everything from pure expert work, where I go in and provide testimony to the court about peer reviewed research on issues like children and a lot of the stuff he said but children under three and relocation and alienation issues and resist refuse dynamics. 

I also do work product reviews of other child custody evaluations or other mental health professionals work products. And then I also do strategic legal support, where I work behind the scenes from a mental health perspective with lawyers and clients to kind of help strategize their case, draft, you know, direct and cross examination questions for mental health providers, and also to work with parents on how to be better parents and better co parents in the midst of their litigation and beyond.

Holly: So for our listeners out there, I first met Christy, I don’t know, maybe five years ago, and the context was

Christy: Oh, it was longer than that.

Holly: It was longer than that? Where, you know, I needed I had a bad custody evaluation and the case and another attorney said, hey, you should contact Christy and see what you can do about this. And so we hired Christy and she helped us both consulting about how to attack the custody evaluation and testifying as an expert as to what was done wrong in this custody evaluation and ultimately, our client won even though the custody evaluation came out against her. So what, in general, what is the purpose of a child custody evaluation?

Christy: The purpose of an evaluation is to for a neutral mental health professional who is appointed by the court to go in and evaluate the parties to the suit and the child or the children involved to compare and contrast their parenting strengths and their parenting weaknesses or areas of improvement to assess the relationship with the child or children involved. And to look at you know, assess those kiddos. Are we dealing with, you know educational issues? Are there some physical health issues? 

Are there some social issues or some psychological issues? And looking at the issues that that child may be having and what their needs are compare and contrasting those parents strengths and weaknesses, and ultimately providing a recommendation to the court regarding what the evaluator believes to be in that child’s best interest, with the goal of obviously helping that child have an ongoing, consistent relationship with both their parents, as long as that is healthy and safe to do so. So it’s a piece of the puzzle for the courts, hopefully one that helps settle cases.

Holly: So I know a lot of attorneys are kind of hands off when it comes to custody evaluation and just kind of push they’re like, here you go client, go deal with this person. What can attorneys do to help their clients prepare for a custody evaluation and help get the best possible result under the circumstances?

Christy: First and foremost, talk to your client, I cannot tell you how many times I show up to a party’s home, or we meet in an office and I say, hey, tell me what you understand about why I’m here. And what we’re doing or what your attorneys told you about why I’m here and what we’re doing. And they look at me blank faced and like, well, either nothing or I’m supposed to talk to you, or they don’t know a lot, some knowo, a lot. You know, I’m a lot of your listeners, I’m sure I’m preaching to the choir, they do this. But a lot of times they don’t have an understanding of what a custody evaluation is. So they don’t know what they’re walking into. And they’re very anxious because this is about the most important thing in their life. It’s about their children. And this is this is intimidating. It’s invasive. It’s, you know, there’s lots of probing and prodding and uncomfortable questions. 

And so just telling them what the purpose of an evaluation is, helping them at least in a general sense, know what to expect, encouraging them to have a conversation with them about okay, so if something seems weird, or doesn’t make sense in your custody evaluation, don’t confront your custody evaluator. Come back to me make a note, let’s talk about it and see, do we need to address it? Do we not need to address it? And how do we address it? You know, do we need to address it now? Do we just need to wait and see how things play out things of that nature. So first of all, just helping them understand things would be the first tool. The next thing is, and I’m gonna back it up a little bit, come up with a good order on the front end, our form book committee has a great form court order related to custody evaluations, and they do a great job keeping that up to speed. Like we need it to be. But it’s it’s a form book order. 

And the goal of a custody evaluation is to answer specific questions that are posed by the court related to this family, this child this situation, formulate some questions for that evaluator that are case specific, it helps kind of narrow down the focus of that evaluation and get the evaluator on track from the very beginning. Don’t over prep your client. Because don’t tell them what to say, because they’re going to screw it up, I promise. And we’re gonna know you talk to him too much. It’s pretty obvious when that happens. And in regards to, especially if you’ve got somebody doing like a psychological test, or their psychological testing that your psychologist, you have a psychologist doing your custody evaluation, tell them do not Google it, do not study it, they’re gonna mess up the validity scales, I promise I’ve seen it happen. 

And teach them just to calm down, that this is strictly to develop alternative hypotheses, it’s going to be compared to the data. It’s not the end all be all of your custody evaluation. And just to go in, read the question, answer the question, don’t overthink the question and answer the question. Um, I can keep going, you have a question.

Holly: What I was gonna say, you know, you talked about don’t over prep your client, I have heard of some attorneys who will hire experts to essentially prep their clients prior to a custody evaluation. Do you think that is ever appropriate? If so, when?

Christy: I do some of that, and I think the answer is how it’s done. Because I’m not going to go in and tell the client what they need to say, I’m not going to go in and fill out a client’s paperwork for them. I’m not going to do the work for them. But I can do the work of sitting down and going, this is what to expect. This is what it looks like. This is same stuff I just said, I need this is how you handle a psych test. This is how you handle an interview. You know, just be open, be honest, be transparent, don’t lie to them follow their lead, they’re in charge, and just giving them those tools to not be anxious. 

But I think if you’ve got somebody coming in who’s doing their paperwork, who’s telling them what to say, who’s telling them how to say it, who’s doing the work for them, you’re ultimately going to end up with a tainted process. And usually clients are not good enough to hide that and it’s overtly obvious. So it’s all on who you hire and how they do it. That’s key because there is a that’s an ethical line and it’s it’s an easy line to cross and it’s you got to kind of keep yourself in check if you’re going to do that work.

Holly: So to what extent should attorneys be giving you information throughout the case versus it just being come it just coming from the parties?

Christy: A lot of that has to do with the amount of money your case has just to be honest with you. At the end of the day. My preference is that attorneys if the finances are there, sit down, go over that paperwork with your client, talk to your client about what they have what they think is important to provide, help them narrow down what’s relevant to like child related issues. They don’t need all your business evaluation information, because that’s not relevant to the children oftentimes, or most of the time. Help them narrow down, you know, they don’t need the 3000 our family wizard messages that you’ve written over the last five years, let’s find the most important ones that prove your concerns about the other party or disprove their concerns about you or give them a flavor for how you co parent. 

Pleadings are helpful. Transcripts. I love a good transcript, especially if it’s on child related issues. That’s very helpful to see how clients interact in court, see if their answers match what they’re telling mine. And then, you know, do we have depositions? Do we have, you know, audio recordings or video recordings, we want them to review? And at that point, check with your evaluator. Do they review those? Is there a special policy to have those reviewed, and just kind of go through with your client, what they have what you know, that they have, and then helping them narrow down what needs to be provided. If it comes from an attorney, the other attorney has to be cc that’s required per family code. 

And clients can give information to evaluators without it necessarily having to cc the other side. But I’m real clear with clients. Don’t have anything your attorney doesn’t already have. Because this is not intended to be you know, this is a transparent process. It’s not, you know, evaluation by ambush by information you don’t know about. So hopefully that information that they’re providing has already been produced and discovery. But helping them do that, or if they if they don’t have the money, make sure they talk to you about what they’re fixing to hand over. So you have a handle on what’s going out.

Holly: So you mentioned you know, if things are in the budget and money, obviously that is a big issue for a lot of clients. And how do you balance with your client? Or, you know, how should an attorney balance? Okay, we need to have a really good custody evaluator that’s qualified but can’t make it our clients afford a really good custody evaluator? And, you know, what is crucial that attorneys and and their clients do? And what are things that you can be more budget conscious and let go?

Christy: The biggest thing is just making sure you are periodically checking in with your client, how’s it going? Is there anything you need for me? You know, is there anything they’re asking for is the evaluator asking for for me. I’m not one who’s going to involve the attorneys a lot, unless it’s a case that requires it. And that’s usually because there’s questions about protected health information and whether or not that’s going to be produced to the other side, do we need a confidentiality order? Do we not need a confidentiality order? One client has 25 recordings, they’d like me to review, y’all got to agree on that, things like that, that I need attorney help on. But most of the time, I don’t have a lot of contact unless it’s warranted. I don’t reach out unless it’s warranted. 

I don’t want to, you know, just increase the cost of an evaluation for no reason, but narrowing down what they provide, how much they use you, making sure you’re at least having conversations, but you don’t have to go page by page through what they’re producing. If you have a handle on the case, and on what information they’re providing, as far as an overarching theme, and then, you know, get to know your evaluators, there’s evaluators in our area, you could, they could charge $50,000. You can get evaluations done for, uh, you know, $3500 to $5000, by people who are qualified per the code. So getting to know those people who are out there, I’m always happy to take calls and go, hey, here’s kind of your gamut. And here’s the people I’m aware of that are available and doing them. But getting to know people who can do it at a lower cost is also important, because just because a family needs one and can’t afford it doesn’t mean they shouldn’t have one.

Holly: What are some mistakes you see attorneys make during a custody evaluation process?

Christy: Probably number one communicate with us specifically, in regards to dates. I can’t tell you how many times I get phone calls that we’ve set mediation for this day, or we’ve set final trial for this day, didn’t think to check if I was like not in town, or at a conference or on vacation, or just I can’t get it done by then. You know, and that and I get deadlines are hard and they’re hard to set for custody evaluators. I understand that but have a conversation. Try and be flexible with the dates if you can, but communicate that information because oftentimes, we’re left out of that loop. Or we’re told about, oh, it’s four o’clock, we need you in court tomorrow at nine. And that’s that just uproots your day and makes for a nightmare trying to get the file and review the file and all that kind of good stuff. So talking not some of it is the stuff I already mentioned. 

But please talk to your client beforehand. Don’t not talk to them. I’m not reviewing the documents with them, or at least talking to them about the documents. This is a big one and probably my my biggest frustration now and I’ve seen this in grow over the course of my career. The level of litigiousness has just it feels like it’s gone through the roof probably in about the last five years. How custody evaluators and not just cost evaluators but mental health professionals how some attorneys not all, but will attack, make threats, threaten to sue, threaten board complaints, encourage clients to board complaint them. And sometimes board complaints are needed. I don’t want to say that every mental health professional’s, you know, completely above board, and has not violated their ethical code at times and need to be, you know, that needs to be addressed. 

But being disrespectful, being overly aggressive, when it’s unnecessary. It’s we’re losing people left and right as custody evaluators as mental health professionals in this field, and it doesn’t hurt to be nice, it doesn’t hurt to be respectful. It’s not hard. And you know, I’m all for a good cross examination. And if I’ve messed up, great, let me have it on the witness stand, because it will only make me better and I won’t do it again. But at the same time, there’s a line that you can cross and it just feels like more and more and more that line is getting crossed and how mental health professionals are being dealt with. And we’re having less and less people who want to do this work or in either stay in the field or even give this field a shot.

Holly: So speaking of cross examination. Often times 50% of the room is going to not like how the custody evaluation comes out. So if an attorney happens to have that client who did not receive a good outcome in the custody evaluation, what are some tips for how an attorney can attack the custody evaluation?

Christy: You can obviously if the money’s there, hire somebody to do a work product review. I mean, that’s, that’s an easy thing. And I would normally recommend to have that if unless you’re butting up against the designation deadline, do that confidentially first, to see what their opinion is, see what their impressions are, and see if it’s even something you want to put on the witness stand potentially, before you designate them. And then have them do that review, talk about it. See if that’s information. I’ve done three since October that went to mediation and settled. Custody evaluator was on one side, I didn’t work product review and said this is what I think and what I’ll testify to. Case settled at mediation, that’s a good thing. And I never had testified or never was officially designated. 

But making sure that it’s been reviewed by you, or by a work product reviewer compared to family code, that’s the first thing to do is pull out section 107, subchapter D, go through that line by line. That’s why we have it, you know, we worked hard to pass that law so that it’s real clear what evaluators have to do and not have to do. And I’ll be honest, most of the evaluations that I’ve seen either been kicked out of court or not relied upon, didn’t follow some aspect of that code or some aspect of that order. So looking at their evaluation, did they answer all the questions they were supposed to? Did they do everything their order said they do everything the family code said, and then just being familiar with, you know, the other guidelines, AFCC guidelines, the AAML guidelines, the APA guidelines, and, you know, looking how to look for because when I do a review, it’s twofold. 

It’s statutory first looking at their order, did they do what they’re supposed to? And then I’m looking at, you know, best practice, do Is there a obvious bias where their efforts to mitigate their bias? Do they talk about the limitations of the data in their report? Is there an analytical gap from what data they have in the opinion they reached, and just learning to look at things from that perspective, from two fold can help number one, establish great direct and cross examination questions, and also assist the attorney in determining do I want to fight this? Is this a case I need to settle? You know, is this evaluation going to help or hurt my client in the long run in a courtroom?

Holly: So for the attorney who’s on the side, where their client came out, looking better in the custody evaluation, when you have an expert hired on the other side that’s going to attack it? Are there things the attorney on the favorable side can do to rehabilitate that expert that was appointed by the court?

Christy: Well, if they’ve been designated early enough depose that expert, if the money exists. Find out what they think or have them produce a report one of the two, so that you know what they’re gonna say. That’s step one. So what are they gonna say? What are they gonna say is wrong with that? And, number one, even see if you agree with them, see, if you believe that their opinion’s accurate. The difficulty is a court appointed expert can’t have a conversation with an attorney without opposing counsel on the phone. So you can’t just call that court appointed evaluator and say, okay, this is what they’re saying about you. 

How do you fix that? But it’s understand and the other thing is you can depose that evaluator see what they’re gonna say, can they explain the poor quote unquote, perceived errors? Or is there an explanation or is there a defense to that, and then being able to like, again, go through that family code if they complied with it and just doing a great, very strategic, very methodical, you know, direct examination of proving they did their job before that other expert ever gets a chance to get on the stand? if you’re if you’re the petitioner and actually get to go first? 

Holly: Yes, exactly. So let’s say that a custody evaluation comes out and the party says, this information in here is wrong. And there’s some issue in the custody evaluation that and the party feels they would have come to a different conclusion if they didn’t have this wrong information contained in there. What can attorneys do, if anything, to try and bring that up and maybe get the custody evaluation amended or supplemented, or anything like that?

Christy: It depends on the definition of what’s wrong. Is it like got a fact wrong that they had that like, it’s their fact? Does that make sense? I’ll never forget, I wrote somebody last smoked pot 16 years ago, and it should have been that when they were 16 years old, it made no difference to my report, but I did correct it. When I went back looked at my notes, I miss typed it from my notes, they were right. So if it’s a factual issue about something about your client, like said they did therapy, or didn’t do therapy, or the dates are wrong, then absolutely I would contact that evaluator and say, hey, this, this and this has been reported, about client is incorrect. 

Can we talk about that? Check your notes? And if it’s wrong, I would ask them to fix it. Absolutely. The issue is, is do they think there’s an actual fact about them? Or do they not like what the other person said? And that doesn’t mean that they took it as true. Does that make sense? Because I’ll often when I do work, product reviews, I ask the attorney to get any information from the client that they think is wrong. And I have to be real clear, not what the other person said was, but what they actually think is factually wrong from what they said, because you both get to say what you want to say in a custody evaluation. And what both sides are not going to agree with that the other party said. But if it’s a factual issue, that’s significant, then yes, absolutely. address that with the evaluator and ask that they correct the report if that mistake does exist.

Holly: So another issue that attorneys can see is having trouble getting into court for a trial, and there being a significant delay between whenever the custody evaluation comes out, and whenever there’s going to be a trial on that issue. So obviously, the more recent, the better if you’re trying to rely on it. But if there’s a long lapse of time, that is no fault of the parties, or the evaluator before trial, how should attorneys handle that?

Christy: Well, if you know, COVID, is part of the problem with that, as we all know, as far as the delay was a lot of those trials, if there’s a chance to get it updated, which every evaluator if they listen to this is gonna want to shoot me. But because updates are hard, you’ve already made somebody upset, and they interrupt your normal flow of the evaluations you’re already trying to complete. But if there’s if there’s a reason to update would be my question, if there’s been a substantial change since the original report came out, if somebody’s gone to therapy and fix their behavior, if the child’s either started to do better, or is starting to decompensate, you may want to look at getting an update. 

But the problem is that you’ve got to back that up far enough to give the evaluator time to do it, or you’ve just postponed your litigation even further. The other option is to how do we fill the gap of time? How do we help the court know what’s happened from point A to point B, asking that evaluator to sit in the courtroom through part of that trial, to get the updates, if that makes sense to hear the parents testimony to hear the therapist testimony to see if there’s any new information that they may hear that may warrant a change to their opinion. Now, they may not be able to prove make their change their opinion, just off of what they heard in court. 

But at least they can tell, hey, there’s been a significant issue, or pretty much the same issues that were going on when I finished this a year and a half ago, it just sounds like more of the same. That I think helps that opinion be more relevant at that point. But that’s a lot of money. I get that for to pay an evaluator to sit there that long. But but that’s a way to mitigate that or does just make sure that the judge hears all the information that’s happened that year and a half that’s pertinent to the judge making that decision, and seeing that that anything new matches what was going on in the report and that the report is still valid as far as the final decision.

Holly: In order for a custody evaluator to do any type of update, are they going to need another order from the judge requiring them to do it?

Christy: I wouldn’t do anything without an order. I think that’s the only way we have quasi judicial immunity as if it’s done by court order. It’s certainly what our our licensure boards are looking for when we’re doing this kind of work if there is a board complaint where you court ordered. So I will want to in order to know you know how you need to update this evaluation. And here’s your new questions. And exactly what needs to be done in that update. Do you need them to update and do the whole thing?

Do you need them to redo their psychological testing? Do you need to re get records on everything? Or is there certain information or certain things that have happened? And this is only the information you need to do or only this amount of they still have to do everything they need to do in the code, but certainly you can limit some of that because they don’t have to go as far back. They’re just updating from point of report forward.

Holly: Is there any amount of time that can pass where we can say this custody evaluation is no longer valid.

Christy: That’s really hard to know. That’s case by case. That’s family by family. Because I think at the end of the day, there’s always valid information, not always, but usually valid information and a family code that’s helpful to the court. It may not be the actual opinion or opinions may have changed, but there usually is information that’s beneficial. But really, it’s case by case family, by family, if we’ve had a remarriage and extra babies and a change in the schedule that they agreed to, you know, if there’s been somebody has been hospitalized for some reason, or gone to jail, for some reason, that certainly could make that, you know, evaluation obsoleted that point, but it really is case by case, family by family, I’ve testified on a case as much as two years old. So and that’s not ideal, but it happens.

Holly: So in a case like that, where you’re having 18 months to two years between completion of evaluation and trial, I know you mentioned sitting in the courtroom and listening to testimony, is it appropriate for attorneys to give you information prior to trial, that you can sort of do the same thing? If there were deposition transcripts? Or there were discovery responses? Or any something else noteworthy that came out? Is it appropriate for you to receive those and review them?

Christy: I think that depends on your evaluator. I’m not once I’m done, I’m done. My court order’s done, the minute that report is published, and the notice is sent to the court that it’s finished. So anything you want me to do after that I’m going to request a new order, I think there are some evaluators that might be willing to look at that information. But it becomes an issue, if you open that door, are you gonna walk an elephant through it and dump everything on me, that’s happened in the last two years and basically backdoor an update, that’s usually my concern, is there’s an effort to backdoor an update without paying me for that getting a proper order and having me do the proper steps. So it’s hard. It’s a it’s a rock and a hard place on those cases, it just is. 

Holly: So if you could offer one piece of advice to family lawyers, what would it be?

Christy: I kind of hit on one. So can I have two? I’ll make it short. One is be nice. I’ve already said that be nice. The other thing I will tell you is get if you if you are looking at a family that needs a custody evaluation, and you believe that, you know, my client could benefit from therapy, or there’s no question, these people need a parent of facilitator, or we’ve got a kiddo who’s starting to resist contact with a parent or outright reject contact with a parent, don’t wait on a custody evaluation to get those pieces in place. Especially an individual therapist for your client, and more importantly, a reunification therapist for those children in those families. Time’s the enemies on those cases. 

The longer you wait and if custody evaluations take six months to a year to a year and a half to complete, a kid going without seeing a parent for a year and a half is I mean, that is just damaging to the ability to repair that relationship long term. And the reality is in the middle of a custody evaluation, give me a parent facilitator, give me an individual therapist, give me a reunification therapist, that’s great data. And it helps get a more accurate custody evaluation and accurate opinion at the end versus you get to the end of a custody evaluation. They go, hey, you need a parent facilitator or hey, you need individual therapy, or hey, go to reunification therapy and see what happens, versus get those pieces in place early. And allow that to be part of your evaluation. And hopefully, you actually get a really good conclusion that it can actually put an end point to that litigation and get that family moving forward.

Holly: So if there are outside professionals like that working with the parties, or the children in a particular case, and you’re doing a custody evaluation, do you deal with those professionals along the way? Or do you wait till the end and check in with them? Or to what extent do you communicate with those professionals?

Christy: It depends on the case and the issues. I will certainly I mean, because I’m just data gathering, so I’m not a part of the clinical team. I’m a forensic evaluator. Our roles are very, very different. But I might call and go okay, hey, can I get your notes through this day? And can you kind of give me a quick update of where we are? Because that’s going to help me ask questions of the parents or ask questions of the children. And then I’m probably going to do a follow up towards the end. Or right at the end as I hey, can I have one more phone call? 

Can I get an update of all your records to this point, and make sure I’ve got a complete file. So a lot of times I’m gonna let therapists do their work. I’m not poking my nose in where it doesn’t need to. But sometimes I need that information along the way to help me know what else to ask. So some some mental health professionals I’ll never touch base with until we get to the end. And some I’m gonna touch base a little bit along the way, just so I kind of have an understanding what’s going on to help my process be as thorough as possible.

Holly: So one other question that came up, something came up really early in our talk that I was just curious what you think about it and what your position is, was referencing kids under three, because in the family code, we have no guidance whatsoever about what to do with children under three. And it can be you know, very judge specific as to what might happen in your court. What do you, what are issues you see with kids under three?

Christy: Well, obviously, there’s a reason we don’t have specific schedules, or at least they don’t apply to the family code standard access schedule for children under three that exists that way for a reason. Our code has some factors that are considered there’s some potential revamp of that going on legislatively as we speak. But research is real clear that children under the age of three actually need to spend ongoing consistent time with both their parents and that includes overnights that includes overnights from infancy, that’s important for that, you know, bonding phase and that attachment and that connectedness that that kids need to be developing with both their parents. Kids need to have opportunities to have both parents wake up with them in the middle of the night, when they have a bad dream, or they need their diaper changed, or they need, you know, a bottle. 

They need to know they can count on both parents to do those things for them or during their nap time or during the day. So they’re not just two hours of playtime, you know, three times a week. And there are great schedules for that actually, when we originally worked on the under three statute, I think that was 09, it may have been 2011. I don’t remember which one. But we originally talked about it, we actually had three schedules that were considered. And those were presented at mance family law that year, that a lot of judges still use. And they were a schedule for if you’ve got a case where a child and a parent have never met kind of what I would call a unification case. 

So kind of how do you ramp that schedule? And then well, we’ve got more traditional roles where one parent stay at home and one parent work kind of what schedule can you do for that. And then you’ve got a schedule where you’ve got two parents who pretty much were equally involved with that child, and just things for the court to consider in that regard. But Arizona in particular has a great schedule, you can actually Google parenting plans in Arizona, and they’ve come up with 0 to 18, all sorts of different schedules you can consider and it’s got all sorts of options for based upon what’s going on in the family, and in their research based, because of some of the research is going on out there and one of their major universities, from somebody who’s well respected in our field. 

So that’s a great place to look. But there’s great schedules, but you’re looking at for who’s been parenting that kiddo who’s, who’s been to the doctor’s appointments, who’s the one primarily meeting that child’s needs, but it doesn’t mean just because even you’ve got a traditional family setup of one works and one stays home, that that can’t shift at the time of divorce. And that child needs an opportunity to have those experiences with both parents and trust both those parents to be available to parents and when they need it. Does that answer your question?

Holly: Yes, that’s great information, I will definitely go seek out those, those three orders you mentioned, as well as the Arizona information.

Christy: And I’ve got those and can shoot those to you if you’d like them. 

Holly: That’d be great. I would love that. Save me the trouble. So we’re just about out of time, but where can our listeners go to find out more information about you?

Christy: Sure. primary place to be go to my website. It’s txfamilylawforensics.com. And they can find out they can find me there and all the information about me and my services and how to contact me. And then I’m on LinkedIn, Christy Bradshaw Schmidt and my LPC and just under my name.

Holly: All right, well, I cannot encourage people enough to use Christy as a resource and as an expert in your cases because she is a wealth of information and has helped us out in many times at our firm. So thank you so much. 

Christy: Appreciate it. Thank you.

Holly: Thank you so much for being our guest today. 

Christy: Appreciate the opportunity.

Holly: Look forward to seeing you soon.

Voiceover: The Texas Family Law Insiders podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.draperfirm.com

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Following a divorce or child custody case in Texas, you may be struggling with the concept that you’re no longer able to see your child every day or whenever you desire. While this is certainly an adjustment, an added complication to this situation can occur when the other parent is not following the possession order. It is extremely frustrating when a parent expects to see his or her child, only to be disappointed at the time of the exchange. While co-parenting and reaching amicable agreements are encouraged, this may not be an option for some parent. So, what are your options if the possession order isn’t being followed?

Modification

If your possession schedule has become unworkable or is consistently disregarded by the other parent, modifying the possession order could be an appropriate option for you. If a parent is consistently failing to exercise possession at a specified time, or consistently keeps the child beyond their possession, modifying the schedule may offer long term relief for you. While a modification will not hold a parent responsible for disobeying the possession order, it will give you an opportunity to create a new possession schedule that works better for the child and the parents. A modification is also appropriate if the parents previously agreed to follow a different schedule but are no longer able to cooperate and agree. If this happens, asking the court to modify the possession order so it reflects what the parties consistently followed previously may be in the child’s best interest.

Enforcement

If the parent disregards the court’s possession order, or interferes with your ability to exercise your court ordered possession, seeking an enforcement is also an option. An enforcement asks the court to hold one party in contempt for disobeying the court’s order. To have a successful enforcement, you must have a clear and concise order and be able to articulate how the other party failed to comply with the order (i.e.: didn’t appear at the scheduled exchange or picked up the child from school so you could not exercise your possession.) If the court finds the other parent is in contempt, the court has multiple forms of relief to offer the other parent. The court can order additional possession time, order the payment of court costs and attorney’s fees, and even order confinement for a parent that continuously fails to comply. While seeking that the parent of your child be held in contempt seems very harsh, it may be the appropriate remedy if other options and attempts to co-parent have failed.

Writ of Habeas Corpus and Writ of Attachment

If the other parent is keeping your child from you for a continuous period of time beyond their ordered possession, seeking a writ of habeas corpus is the best way to have the child returned to you. If you’re seeking a writ of habeas, you must do so during your ordered possession time. While these hearings are typically expedited, they are not immediate. If a parent is keeping the child in excess of the court ordered possession, but returns the child within a relatively short period of time, an enforcement is the better option for you. The writ of habeas orders the parent to bring the child to court so that the court can determine who has the right of possession to the child. If you fear your child is in danger, you and your attorney may also want to seek a writ of attachment. A writ of attachment orders the parent to surrender the child to law enforcement so that the child may be returned you, instead of having the parent appear at a hearing with the child at a date and time in the future.

If your possession order is not being followed, you have rights and options available for relief. To determine what relief is most appropriate for your situation, you should consult with an attorney. The attorneys at The Draper Law Firm, P.C. are here to help you navigate through this difficult time and to fight for your parental rights.

-Blog post by Shmyla Alam

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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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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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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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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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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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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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