Posts Tagged ‘Children’

february and standard visitation

Tuesday, February 15th, 2011

Wow, I have been a bad blogger!  With the ice apocalypse in Dallas this year, I got a bit behind.  Hopefully everyone survived without my extremely insightful and brilliant posts.  :)

February 4th was your first weekend visit this month if you have a standard visitation order.  Your other weekend possession this month will be this Friday, the 18th.  Thursdays (or Wednesdays on some old orders) are pretty standard this month as well so you should get each of those.

President’s day falls on the non-cusotdial parent’s weekend this month so that weekend will extend the return time (depending on your order – if you have standard visitation it will) to either return to school on Tuesday morning or Monday at 6:00 p.m.  This only applies if you have the language in your decree extending the visitation for Monday holidays AND your child is actually out of school on that Monday.  You should already know if your periods of possession end by returning the child to school or if you return at 6:00 p.m. the day before they return to school.

That about wraps it up for this month.  Happy President’s Day!

is it legal to record telephone conversations or intercept emails?

Monday, January 10th, 2011

A very common question in my practice is whether it is legal for a person to record telephone conversations or intercept emails from their spouse in a divorce.  As with most other areas of law, there are no hard and fast answers to every factual scenario only general guidelines.  I will start by addressing the recording of telephone conversations.

In Texas you can record a telephone conversation as long as one of the parties on the line knows they are being recorded.  That means you can record your conversation with your spouse because you know that you are being recorded.  You cannot record telephone conversations between two people if they do not know they are being recorded.  For instance, you cannot record your spouse’s conversation with their lover or sister or whatever.  That is wiretapping and can get you into some serious criminal trouble.

The next question that typically arises is whether you can record your wife or husband’s telephone conversation with your child? The general answer is yes.  Since a child is not old enough to consent to being recorded, the parent can consent for them.  If the parent consents to recording the conversation between the child and the other parent, then at least one party on the line knows they are being recorded.

As I stated above, however, these are general guidelines as every case is factually different.  You should always consult with a lawyer before embarking on a telephone recording campaign.  Factors such as phone calls to other states or out of the country could take this to a whole new level.  Be careful.  What is legal in Texas may not be legal in Arizona and if you are recording a conversation between a phone in Texas and a phone in Arizona you could open yourself up to criminal liability in Arizona.

The next topic is whether it is legal to intercept emails from your spouse.  Obviously you are not a party to the emails, otherwise you would have a copy.  This situation arises when you are snooping through your spouse’s email account.  Things get a little more dicey here.  It usually boils down to the spouse’s expectation of privacy and the availability of the email program and passwords, meaning was it a computer that everyone had access to in the house, was the password readily available, etc… No expectation of privacy then they become fair game, or do they?  There is a case out of Michigan where a husband was checking his wife’s gmail account from their home computer and she kept her passwords right next to the computer.  Did she have any expectation of privacy? Doesn’t sound like it.  However, that did not stop the District Attorney’s office from filing charges on him.  You can read more about this case in this MSNBC article.  What if you set up the spouse’s email software to forward you all emails they receive?  You may want to read this case on arstechnica.com.  What about key tracking software that sends a report of what was typed?  There is no easy answer to these questions.

Is it legal to record telephone conversations?  Sometimes.   Is it legal to intercept emails?  Maybe.  Consult a lawyer and be careful.  That is the best advise I can give.

january and the standard visitation order in Texas

Friday, January 7th, 2011

Happy New Year everyone.  January is upon us and the kids should all be back in school now.  With the holidays behind us we enter a few months of normal standard visitation weekend and weekday visitations.

The first standard visitation in January for most of you was likely last night, the Thursday visitation (unless you have an old order and it would have been Wednesday).  Thursday possessions should continue this month without interruption.  The first weekend is tonight (as it is measured by the first Friday of the month).  The third weekend will be January 21st and there is not a fifth weekend this month.

For some of your children, Martin Luther King, Jr. Day will be a holiday, but since it falls on an off weekend for visitation it should not be an issue.

Pretty plain month in terms of visitation.  Until next month…

difference between joint and sole managing conservatorship in Texas

Monday, December 27th, 2010

There is a lot of confusion regarding the difference between joint and sole managing conservatorship in Texas and what exactly they both mean.  Let’s begin with the meaning.

Sole managing and joint managing conservators does not mean sole custody or joint custody.  Conservatorship in Texas is simply a designation of who has the right to make certain decisions regarding a child and who has what duties.  The Texas Family Code specifically lists the rights of a conservator.  In a joint managing conservatorship these rights are split between the parties either as the parties agree or as the judge decides.   Typically, in a standard order, the rights are split independently which means that each party maintains all these rights.

A person with “sole managing conservatorship” has the rights and duties as set out in section 153.132 of the Texas Family Code.  This person exercises these rights exclusively and does not share them with the other parent.  The other parent is termed the “possessory conservator” and has limited rights (see section 153.192 of the Texas Family Code).

So how do you know who has “custody”?  The person who has custody as most people know it is the person who has the exclusive right to designate the primary residence of the child.  In a joint managing conservatorship that person is called the “primary” joint managing conservator.  In a sole managing conservatorship the sole managing conservator has this right exclusively.

So as you can see, you can be a joint managing conservator but not have the right to determine the residence of the child (or custody as most people refer to it).

How is it determined which type of conservator a parent is named?  In Texas it is presumed that the parents will be appointed joint managing conservators of a child.  This means that in most cases the parents will be named joint managing conservators and the rights and duties set out above will be split.  This rule can be found in section 153.131 of the Texas Family Code.  That is in most cases. Although it is presumed that the parents will be joint conservators, the presumption can be attacked with the proper facts.  If the facts show that the child’s emotional or physical health would be significantly impaired by appointing the parents joint conservators, then the court will appoint a sole managing conservator.

The facts necessary to attack the presumption are different for each case and each judge.  There is no easy answer to what facts are necessary.

Once conservatorship is decided, who makes what decisions, the next step is determining what possession schedule each party will have.  I have discussed standard visitations in many different places on this blog.

I hope this sheds some light on the issue of conservatorship vs. custody.

child name change in Texas

Monday, November 22nd, 2010

Child name changes in Texas are governed by Chapter 45 of the Texas Family Code.  Requests to change the name can be filed by the parent, someone named as the managing conservator, or by a guardian appointed for the child in the county in which the child resides.  Any request to change the legal name for a child must include, among other things (see Section 45.002):

  • where the child resides (to establish that it is filed in the right county);
  • the child’s present name;
  • the requested name; and
  • the reason for the child name change.

If the child is over ten years old, the request must contain the child’s written consent to a change of their name.

The Family Code does not specify what sufficient reason are for the legal name change of a child.  As with other cases involving children, the court ultimately decides what it believes is in the best interest of the child and rules accordingly.

Section 45.003 lists parties who are entitled to notice via a “citation”.  This means that these are the parties who have to be served with papers requesting a child name change.  This is a lawsuit like any other lawsuit and requires that all interested parties, listed below, be notified of the proceedings:

  • a parent of the child whose parental rights have not been terminated;
  • any managing conservator of the child; and
  • any guardian of the child.

Some common scenarios which arise in a legal name change for children are as follows:

  • Mother wants to change the name of the child to the name of her new husband.  Ex-husband does not agree.  First of all mother must serve ex-husband with papers requesting the name change.  If ex-husband does not file paperwork letting the court know that he disagrees with the name change, after being served, then mother may get her wish.  However, if ex-husband files a response to the lawsuit, mother must set the case for trial and prove that it is in the best interest of the child to change their name.  This will be tough to prove in most instances.
  • Mother wants to change name of the child to her last name or her husband’s last name.  She was never married to the father of the child and has no idea where he is.  Father has not had contact with the child in years.  Mother must still serve the father with notice of the lawsuit.  For every child out there there is a biological father, and they must get notice.  If you absolutely cannot find the father, there are alternative ways to serve them, but you still must serve them.

If the biological father agrees to the name change, in most instances you will not have a problem.  The above scenarios are for situations where the father does not agree.

Another way that a person can change the name of a child is through an adoption where their parental rights are terminated.  When rights are terminated, there is no biological parent remaining in that position so that when a new parent steps in (through the adoption) the child can assume their name.

Finally, in a situation where a father is establishing his parental rights through a paternity action, the courts will typically give the child the last name of the father or a hyphenated version of the mother and father’s last name with the father’s being last.

I hope that I have not confused you more than I have helped.  As always, comment if you have any general questions.  Thank you for reading.

visitation and the holidays – practical tips

Thursday, November 4th, 2010

The holidays are rapidly approaching.  They can be joyous events or they can be the worst time of the year if you are in or recently completed a custody battle.  One of my readers, who has experience in these matters, has some great ideas on how to begin to heal the wounds and provides some good practical tips for the holidays:

Non-Wicked Step-Parenting For A Harmonious Family Life

My husband and I have a yours, mine and ours family.  I have sole custody of my two kids, ages six and eight.  We have a four year old together, and my husband has an eight year old son, also.  When he received primary custody of his son, it was the beginning of November.  That’s right before the holidays, and he and his ex-wife were not on friendly terms at all.  That holiday season was very hard on all of us; none of us was willing to be cooperative, or even civil, with each other.  We all became angry and argumentative over the smallest details of the custody order.

Five years later, we’ve learned a thing or two about working together and getting along.  Since then,  I’ve become the main person responsible for communicating with his ex-wife.  She and I get along well now.  So, I don’t mind being the middle woman, because our whole family is a lot happier when we don’t have any disputes over my step-son.

For all you newly divorced or separated parents out there, I know how stressful and sad it is to face the holidays with a court ordered schedule that’s probably not what you want.  In fact, you may be dreading negotiating the court-ordered holiday schedule.  You may be feeling a sense of loss over the idea of not having your child on the actual holiday.  Perhaps you wish that your ex would be open to some flexibility in the holiday (or even the regular) schedule.  The good news is that, by exercising a few simple strategies of kindness and consideration, you can greatly increase the likelihood that your ex will work cooperatively with you!  The following are some things I’ve learned over the last five years of navigating the Standard Possession Order alongside my husband.

1. Be the bigger person.

One of the hardest parts of sharing custody, at least in the beginning, is being nice to your ex. This is especially true if your ex is not so nice to you.  Nothing brings about bad blood like a custody battle, and if your separation is recent, you and your ex are probably still harboring a lot of anger and resentment toward each other.  At this point, it doesn’t really matter who’s right and who’s wrong; each  of you believes that you are right and neither of you is likely to change your mind about that.  And that’s irrelevant to the matter at hand; there is always more than one side to a story.  But if you want to make any progress toward getting your ex to agree to a change in the holiday schedule (or even the regular visitation schedule), you’re just going to have to let go of being right and be the bigger person.

Don’t engage in any arguing, accusing or nit-picking with your ex.  Be calm, polite and fair with your ex, no matter how much he or she may try to provoke you or how upset you may be with him or her.  If you don’t feel that you can be the bigger person right now, consider asking someone else to be the bigger person in your place; to be your “point person”.  Perhaps your new spouse/significant other or a relative can do pick up or drop off, or take calls from your ex.  This was my role in the beginning because they just couldn’t get along.  Now it’s just out of habit.

Turn these transactions with your ex into friendly, positive experiences during which small talk can take place and little tidbits about your child can be shared.  A cute story about something your child did or a quick overview of your child’s weekend goes a long, long way toward making the other parent see you (or your designated “point person”) as an ally and feel included.  If having a “point person” makes it easier for these positive exchanges to take place, then go for it!

2. Make a peace offering.

Once you and your ex reach at least a semi-peaceful relationship, it’s time to make a peace offering.  If you want your ex to work with you on occasional schedule changes, you need to demonstrate your willingness to cooperate and follow through with an agreement.  Whether you’re the custodial or non-custodial parent, find a little leeway in your visitation schedule to offer the other parent a “freebie”.  Maybe you can offer to drop your child off at a time when your ex would normally have to pick her up, or offer to meet your ex halfway if you don’t live near each other.  You might offer to let your ex pick your child up early, drop him off a little later, or allow your ex to take your child for a couple of hours on a special occasion.

Personally, I’ve invited my husband’s ex to our other kids’ birthday parties, I’ve taken my stepson to her children’s birthday parties, I’ve dropped in on her with my stepson when we just happened to be in the area anyway, and I’ve met her at various times and locations convenient to her.  I really don’t mind; the person who benefits the most from all my efforts is my stepson!

Make your peace offering something that your ex will appreciate, and then follow through with it.  This will demonstrate your ability to be reasonable and cooperative, and will prove that you keep your word.  Your ex will remember that and be more likely to return the favor.  In fact, give yourself a two or three “freebie” head start before you ask your ex to return the favor; especially if you are the custodial parent.  If you are the custodial parent, bear in mind that the non-custodial parent may resent your asking for even a small change to the schedule and may view it as a ploy to shortchange them out of some of their time with your child.  Keep the balance between “freebies” and requests slightly generous in your ex’s favor as a gesture of good will.

3. Ask humbly and you are more likely to receive.

When an occasion does come up where you want to ask your ex for a change to the schedule, ask well in advance and remember to ask politely!  Don’t demand or throw all of your “freebies” in his face as if he now owes you a favor.  A simple, humble, “Next month is such-and-such.  Would you mind if I picked Junior up a little early that day?” is all you need.  Don’t get angry or discouraged if your ex immediately says no; just let your ex know that you understand how important her visitation is, and you’re not trying to take that away from her, but it’s a special occasion and you would really appreciate it if she would consider your request.  You might give your ex some time to think about it and get back to you later.  You could also offer an even exchange; if you give me two extra hours, I’ll give you two extra hours.

The two most important points to remember are to mind your manners and not lose your temper!  Don’t blow all of your hard work in building a cooperative relationship by spouting off an angry or rude retort!  The minute you revert back to a hostile attitude, all or most of your progress will be lost and you’ll be right back where you started.  For example, I know of a father, and custodial parent, (ahem) who once negotiated with his ex-wife for several extra days with their son over the holidays, but became angry and rude with her when she decided that she wanted one more day before sending their son back home.  Naturally, she responded angrily and retracted her agreement.  Don’t let this happen to you.  Be willing to compromise and be appreciative of your ex’s cooperation.

4. Think outside the Standard Possession Order.

Whether you’re the custodial parent or the non-custodial parent, get on your ex’s good side by looking for non-traditional ways for your child to have contact with his other parent from your home.  Do you and/or your ex play video games online?  Let your child (if she or he is old enough) and your ex play online together.  You could allow your child to use your cell phone to send text or picture messages to her other parent, send emails from your account or chat via video conferencing.  My stepson especially loves online gaming with his mom and texting!

If you’re not equipped for some of those options, you can still have your child draw pictures to take to his other parent, write letters and mail them, or even send post cards.  Do you have a toddler or preschooler in day care?  If so, you may be familiar with the communication forms most day cares send home detailing your child’s day or week; you could also borrow that idea and keep a similar log of your young child’s activities to send to his other parent.

Facilitating communication between your child and her other parent this way not only racks up brownie points for yourself, but it benefits your child as well.  It sends the message that loving the other parent is ok and not a disloyalty to you.  Helping your child stay connected to your his other parent makes him feel happy, and using technology, especially, to do so makes your child feel cool and important.  Who doesn’t want that for their child?

5. Share your child virtually.

And speaking of brownie points, it never hurts to garner your ex’s alliance with photo-updates of your child.  Your ex will appreciate knowing what your child is doing, and seeing pictures of her smiling and having fun.  While you should always tread carefully where social networking websites are concerned, you can send pictures through email.  If frequency or file size are of concern, photo sharing websites are a great alternative to email.  Also, if you’re a blogger, you might consider sharing your blog with ex.  Of course, you should exercise the same precautions with your blog as you would with social media.

If all this seems like a bit much, you can use good, old fashioned snail mail or hand delivery to send pictures, samples of school work and other information.  The main thing is to include and inform your ex about your child is doing when they’re with you.  Wouldn’t it be great to receive the same from your ex?

Peace, At Last

One of the hardest parts of sharing custody is having some empathy for your ex, who loves and misses your child as much as you do.  In dealing with custody and visitation issues, it can be helpful to remember that these issues stem from the fact that you both love your child very much and because of that, this is just as painful for your ex as it is for you.  Fortunately, it’s within your power to make the situation easier by employing a little kindness and consideration.

It won’t happen overnight.  It took me the better part of year to win my stepson’s mother’s cooperation, and it was probably close to another year on top of that before she and my husband were on good terms.  So, don’t get discouraged; it’s definitely a process, but it pays off

november and standard visitation in Texas

Monday, November 1st, 2010

I hope everyone had an enjoyable Halloween.  November is here and it is a busy month when it comes to standard visitation in Texas.  We’ll start with the simple and move to the more complex:

The standard weekends this month are Friday the 5th and Friday the 19th (maybe, see below).  The Thursday (or Wednesday if you have an old order) possession will continue this month with the exception of Thanksgiving week.  It is the custodial parent’s Thanksgiving this year.

Now the difficult part.  Each school district exercises the Thanksgiving holiday differently.  Let’s first address the language in most orders.  Standard orders read like this:

“the possessory conservator shall have possession of the child in odd-numbered years, beginning at 6:00 p.m. on the day the child is dismissed from school before Thanksgiving and ending at 6:00 p.m. on the following Sunday, and the managing conservator shall have possession for the same period in even-numbered years.”

If yours is a school district that dismisses school on the Tuesday or Wednesday before the holiday, then you will have the weekend of the 19th as a standard weekend visitation.

If your school district dismisses for the entire week then we have to look a little deeper.  Some schools dismiss on Wednesday, but have an inservice day on Monday and Tuesday (see the DISD Calendar).  That means that the child is out for the entire week.  If that is the case, when is the child “dismissed from school before the Thanksgiving holiday”?  This year the non-custodial parent would argue that it starts on Wednesday the 24th so they could have their weekend (extended by the Monday inservice day), while the custodial parent would argue that is starts on Friday the 19th so that they get that weekend as well as the holiday.

My first response is always that the parties should reach agreements on these types of issues.  However, I know that is not always possible.  So what is the answer?

I don’t know!  I think it depends on the wording on the school calendar.  In looking at the DISD Calendar I think the argument could be made both ways.  The custodial parent would argue that the whole week is designated a holiday and therefore it would begin the preceding Friday.  The non-custodial parent would argue that the calendar makes a clear delineation between the Thanksgiving holiday and the two inservice days.  By color coding them differently, the parent would argue that the Thanksgiving holiday does not start until the black highlighted section begins on the 24th and that the two white highlighted sections are inservice days extending their weekend per the standard order.

By contrast, look at the calendar for Grapevine ISD.  Theirs is highlighted the same throughout the week.  I think the custodial parent has the best argument here as it looks like the whole week is the Thanksgiving holiday.

Hopefully your school district makes it easy for you by letting out on Wednesday with no inservice days.  That is cut and dry.  If you are one of the unfortunate that have it the other way, be reasonable on both sides and save yourself a lot of grief.

october and standard visitation in Texas

Friday, October 8th, 2010

I was a little slow this month in getting the monthly standard visitation update done.  Hopefully everyone knew that their first weekend of the month was last weekend.  This is a pretty standard month for weekend and Thursday visits with the exception of a few items:

  • There is a fifth weekend this month and it begins on the 29th of October.  That is also the weekend of:
  • Halloween – Obviously halloween falls on the visiting parent’s weekend.  Be careful to check your order to see if there are specific possession times for this event.  While it is not common to put halloween in a standard visitation order, it is sometimes done so check your order.  If the parent with custody would like to have the child for a bit, be a good goblin and allow a few hours for some trick or treating.  That is DOUBLE CANDY  for the kids!  Won’t they be excited.
  • The other issue is Fair Day for those of you in the Dallas area.  Many schools will let the kids out for a Fair Day.  If that is on a Friday or a Monday, check your order well because a standard visitation order has a provision for extended weekends when Friday or Monday are a holiday for the kids.  If it is a Friday holiday your visitation will begin at the normal time it would on Friday, but on Thursday instead.  If it is a Monday holiday then your visitation will end on Tuesday at the time it normally would have ended on Monday.

Other than that, everyone should have standard Thursdays (or Wednesdays depending on how old your order is) this month and the weekends of the 1st, 15th, and 29th.

Happy Halloween and be safe out there with the kids.   Next month we will learn all about Thanksgiving visitation.  Fun!

child support and the employer’s order to withhold

Tuesday, September 21st, 2010

child support, employer's order, paycheck

A common issue that arises in child support cases is the roll that an obligor’s (person paying child support) employer plays in the payment of child support.  There is a misconception that once an employer’s order to withhold earnings for child support is given to an employer, the obligor is covered on child support.  That cannot be further from the truth.  Let me give you an example:

  1. Danny and Donna Divorce finalize their divorce case on September 21, 2010.  The court signs the final decree of divorce on that day and the employers order to withhold for child support.  The decree and order state that child support begins on October 1, 2010.
  2. Larry Lawyer, who represents Donna, submits the employer’s order to Danny’s employer on October 3, 2010 so that child support comes out of his check.
  3. Danny believes that there is nothing that he needs to do since the order was entered on September 21, 2010 and his child support will come out of his check.  Danny does not even bother checking his paycheck to see if the child support comes out because his paychecks are auto-deposited into his checking account.
  4. Meanwhile, Danny’s employer processes the order and begin withholding child support from his check on November 12, 2010.
  5. Donna is not happy.  She calls her lawyer, Larry, and complains that she has not received a child support payment since the decree was entered.  It is now November 13, 2010.
  6. Larry files a contempt action against Danny for failure to pay his child support for the month of September.
  7. Larry argues that it is supposed to come out of his check and that he did not know that his employer was not withholding the amounts.
  8. Result?  Larry is held in contempt for failing to pay his child support and pays Larry lots of attorney fees.
  9. Why?  Because Danny is responsible for payment of the child support every month regardless of whether his employer withholds it or not.  It is not a defense that his employer screwed up or did not screw up.

The moral of the story.  If you are ordered to pay child support, you are responsible for making the payment every month.  It is up to you to confirm that the correct amounts are coming out of your check.

september and the standard visitation schedule

Wednesday, September 1st, 2010

Alright, September is here, school is in full swing and we are back to our school time  standard visitation schedule.  September is a pretty straight forward month with the exception of Labor Day weekend.  Labor Day is following the first Friday of the month which is a standard weekend period of possession under the standard visitation laws.

You will pick up at your normal time (per your order), however your drop off time will change this weekend.  If you typically drop off at 6:00 p.m. on Sunday, then you will now drop off at 6:00 p.m. on Monday.  If you typically return to school on Monday morning, then you will return them to school on Tuesday morning.  This provision can be found at §153.315 of the Texas Family Code for a standard visitation schedule and extends the weekend because of the Monday holiday.

Weekend visitation rights will be on the 3rd of the month and ending as described above, and the 17th of the month with standard pick up and drop off per your order.  You will also have the right to each Thursday this month.

I can’t think of any other issues that could arise, but if you have any questions, please provide them in the comment section or contact me at the email to the right.