In Texas, an adult who is the stepparent of a child may file for adoption. This post will answer some common questions that arise when a person is considering initiating a stepparent adoption.

 Who Can File and Where?

In Texas, an adult who is the stepparent of a child may file for adoption. When filing for stepparent adoption, you must include your spouse in the petition. The petition for adoption must be filed in the county where the child is residing or where the petitioners reside. (The parties who file the petition and are requesting the adoption are referred to as the petitioners.)

How Do I Start a Stepparent Adoption?

There are two types of stepparent adoptions, and it is highly recommended that you hire an attorney to help you navigate the process in either case. The type of stepparent adoption will have a large impact on the process you will need to go through to adopt your stepchild. These two types are as follows:

  1. The child’s other parent is alive and there is no court order terminating the parental rights of that parent to the child.  In this instance, you will need to file an Original Petition to Terminate Parent-Child Relationship and for Adoption. Depending on whether or not the biological parent is willing to voluntarily relinquish parental rights, these types of cases can be simple or much more difficult.
  2. The child’s other parent is no longer living or there is a court order terminating the parent’s parental rights to that child.  In this case, you will only need to file an Original Petition for Adoption.  These cases are generally quick and easy because you do not have to deal with the termination component.

It is vital that you file the proper documents in order to have your stepparent adoption approved by the court. As you can see, the other parent must either be no longer living or must have his/her parental rights terminated before you can proceed with adopting the child.

What Other Steps are Involved?

In order to complete a stepparent adoption, the stepparent must complete a background check.  That process is cheap and easy.  You simply make an appointment at one of the approved locations, have your electronic fingerprints taken for the background check, and have the results sent to your attorney.  The petitioners must also complete an adoption home study with someone who is qualified to conduct home studies.  The evaluator will file a report with the court indicating whether or not he recommends approving the adoption.

Will We Need to Appear in Court?

Yes. Both petitioners must appear in court (whether personally or by zoom, if required due to COVID-19 or if allowed by the court). If the child that is to be adopted is 12 years of age or older, the child must also attend the adoption hearing.  (Usually, because adoptions are such a joyous occasion, the child attends no matter the age.)  There is an exception if you are able to show it would be unduly difficult for one of the joint petitioners to attend the hearing. In that case, the court may waive the requirement for both petitioners to be present.  Additionally, the court may also waive the requirement for the child to attend, if waiving the requirement would be in the best interest of the child.

Does My Stepchild Have to Consent to the Adoption?

If the child who is to be adopted is 12 years of age or older, the child must consent to the adoption. The child’s consent can be given in court at the adoption hearing. If the child is not attending the adoption hearing, the child can provide consent in writing.

Must My Stepchild Live with Me Before I Adopt?

Yes. The law provides that a child must live with the adopting petitioner for at least six (6) months before the court may grant an adoption. This requirement can be waived if the petitioners show that the requirement is not in the best interest of the child.

Navigating a stepparent adoption can be a bit confusing and overwhelming, and there are a number of hiccups that may arise during the process. To help ensure your stepparent adoption goes as smoothly as possible, contact a family law attorney to assist you with the process. The attorneys at The Draper Law Firm are ready to assist you in the adoption process.

Blog post by Sarah Marrone

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

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

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

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

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

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

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

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

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

1.What do you enjoy most about family law?

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

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

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

3. Tell us a little about your family / pets

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

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

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

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

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

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

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

7. Who are your favorite professional sports teams?

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

8. What sports do you enjoy playing?

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

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

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

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