15 Known Complaints against Alissa Sherry / Legal Consensus since 2015 with TSBEP / TBHEC

PETITION UPDATE – www.change.org/p/texas-state-board-of-examiners-of-psychologists-tsbep-investigation-into-forensic-custody-evaluator-dr-alissa-sherry-and-legal-consensus/u/25349698

Known Complaints against Alissa Sherry / Legal Consensus
(Note these are only people that have reach out to us, NOT a complete list, we are sure there are more): 

Complaints against Alissa Sherry Dismissed by TSBEP without Any Disciplinary Action Taken since 2015:

Complainant 1 – JH #2015-00110-9966 
Complainant 2 – RF #2015-00153-9966
Complainant 3 – BS # 2015-XXXXX-9966
Complainant 4 – CM #2016-0037-9966
Complainant 5 – KC #2016-00123-9966
Complainant 6 – TP #2017-00057-9966
Complainant 7 – CH #2017-XXXXX-9966
Complainant 8 – JN #2018-00053-9966 

Current Complaints against Alissa Sherry / Legal Consensus Under Investigation by TSBEP: 

Complainant 9 – LW #2019-00069-9966
Complainant 10 – CC #2019-00070-9966
Complainant 11 – CB #2019-0071-9966
Complainant 12 – SG #2019-000100-9966 
Complainant 13 – CR #2019-XXXXX-9966
Complainant 14 – DJ #2019-00130-9966
Complainant 15 – RF #2020-00004-9966 Dr. Alissa Sherry;
                                 #2020-00005-13268 Michelle Munevar;

Section 501.203(d) of TSBEP Rules States that “The Board shall analyze complaints filed with the board to identify any trends or issues related to certain violations.  

www.change.org/p/texas-state-board-of-examiners-of-psychologists-tsbep-investigation-into-forensic-custody-evaluator-dr-alissa-sherry-and-legal-consensus/u/25349698

October 15, 2019 meeting of the Texas Behavioral Health Executive Council  (TBHEC) - Speaker Regarding Parental Alienation 1

October 15, 2019 meeting of the Texas Behavioral Health Executive Council (TBHEC) – Speaker Regarding Parental Alienation

The October 15, 2019 meeting of the Texas Behavioral Health Executive Council in Austin, Texas (TBHEC)

Update on Complaints Against Alissa Sherry / Legal Consensus and TSBEP / TBHEC Complaint Process

PETITION UPDATE – www.change.org/p/texas-state-board-of-examiners-of-psychologists-tsbep-investigation-into-forensic-custody-evaluator-dr-alissa-sherry-and-legal-consensus/u/25214343

Texas State Board of Examiners of Psychologists (TSBEP) Instructions for complaints: 

“State in simple, narrative language why you think the professional violated the Psychologists’ Licensing Act or Board rules.” 

But then when you read the fine print: 
“There must be sufficient evidence to establish probable cause of the misconduct. Therefore, if no probable cause can be determined as a result of the investigation, or if there is not sufficient evidence to withstand a court hearing, the complaint is referred to the Dismissal Committee”  

You are lead to believe you can fill out one page of complaint information in layman’s terms.  The TSBEP takes 18-24 months to make a determination, eventually dismissing because the complaint won’t stand up in a court of law.  By this time people have moved on, are broke after battling the family court system and have no ability to draft a second complaint that will stand up in a court of law.  The TSBEP has set their complaint system up so that anyone that complains about custody evaluations or psychological evaluations is guaranteed to not succeed. 
www.tsbep.texas.gov/how-to-file-a-complaint-enforcement

And when an inquiry is made on how to appeal the decision Darrel Spinks the Executive Director of the TSBEP stated “The dismissal of a complaint may not be appealed by a complainant or a third-party”

www.change.org/p/texas-state-board-of-examiners-of-psychologists-tsbep-investigation-into-forensic-custody-evaluator-dr-alissa-sherry-and-legal-consensus/u/25214343

Texas Court Includes Father’s Personal Injury Annuity in Resources When Calculating Child Support

Texas Court Includes Father’s Personal Injury Annuity in Resources When Calculating Child Support

Originally published by Kelly McClure.

By

The Texas Family Code provides guidelines to assist courts in calculating child support that are based on a percentage of the parent’s net monthly resources.  The statute sets forth what types of income are included and excluded from the parent’s net monthly resources.  In many families, it is fairly straight-forward to determine what is included in the calculation.  If a parent’s only income is from the wage or salary he or she earns from employment, it is relatively simple to identify the net monthly resources.  Some families, however, have more complicated financial circumstances making it less clear what should be included.

In a recent case, a father appealed the inclusion of an annuity payment in his net monthly resources for purposes of the child support calculation.  Prior to the marriage, the father settled a claim for a work-related accident with his employer.  As a result of the settlement, the father receives $6,970 per month from an annuity.  The payments will continue until either the the father’s death or June 1, 2044.

The couple had one child during the marriage.  The mother filed for divorce less than a year after the couple was married.  Although the couple reached agreement on some issues, they were unable to agree on child support and medical support.  The trial court found the annuity payments were “resources” under Texas Family Code 154.062 and included them in the father’s resources when calculating the child and medical support payments.

 

The father appealed, arguing the trial court erred in including the annuity payments in his net resources and therefore erred in calculating the amount of child support and medical support.  The appeals court considered the plain language of the statute defining resources.  The statute specifically addresses annuities, stating, “Resources include…all other income actually being received, including… annuities…”  Although previous cases distinguished between settlement annuities and other types of annuities, the appeals court declined to draw such a distinction.  The appeals court pointed out that the statute included “annuities” within “resources,” and did not differentiate between types of annuities.  Furthermore, the statutory language did not differentiate between the portion of the annuity payment representing repayment of premiums and the portion that represented earned interest.  The appeals court therefore found no error in the trial court including the full amount of the monthly annuity payment in the father’s resources.

The appeals court in this case found that the entire annuity payment could be included in the parent’s net monthly resources.  However, this holding is inconsistent with the previous holding of another Texas appeals court.  Although the language in the statute provides that annuities are included in net monthly resources, there is also language stating that the “return of principal” is not included.  The issue, therefore, may not be completely settled.  Different facts or a different court could lead to a different result.  If you are anticipating a child support dispute involving an annuity, the skilled child support attorneys at McClure Law Group can help.  Call us at 214.692.8200 to schedule an appointment to talk about your case.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Divorce Based on Abandonment in Texas

Originally published by Family and Criminal Law Blog.

Why might I choose to file for divorce based on a fault ground?

Forty years ago, the first no-fault divorce was granted in California. Prior to this time, couples seeking a divorce were required to list a valid ground for divorce, which often included adultery, abandonment, and cruelty. If one of these grounds did not exist in the marriage, but the spouses nonetheless wanted a divorce, they were forced to fabricate a grounds for divorce. Recognizing a need for more honest and efficient divorces, California, and soon after every state in the union except for New York, adopted a version of no-fault divorce.

Most couples in Texas looking to file for divorce today will file for a no-fault divorce, in which the parties will list that the marriage cannot continue because the spouses can no longer get along in the marriage and there is no chance of reconciliation. However, per Texas law, several fault grounds for divorce continue to exist. At times, it can be advantageous or even necessary for a spouse to seek a divorce based upon one of these fault grounds. Below, our Midland, Texas divorce lawyers discuss divorce based on abandonment in the state.

Abandonment Can Influence a Custody Award and Division of Assets

Abandonment occurs when one spouse deserts the other spouse with the intention to end the marriage. Proving abandonment by your spouse can influence the court’s decisions when it comes to custody of your minor children. To successfully demonstrate abandonment, you will need to show that your spouse has been absent for one year or more. Further, filing for divorce based on abandonment might become essential if you cannot reach your spouse.

Family courts in Texas take the position that generally it is in a child’s best interests to have a relationship with both parents. However, where one spouse has abandoned the family, this will negate that presumption. A judge weighing the custodial rights of a spouse who left his or her family is less likely to award joint custody and will likely allow for just limited visitation.

Further, a judge may take your spouse’s abandonment into account when determining how your marital assets will be divided. Texas is a community property state and marital assets will be divided in accordance with what is just and right. While this typically means equally, where one spouse abandoned the family, a judge may be included to issue the other spouse a disproportionate share of the assets. Your divorce lawyer will review the circumstances surrounding your spouse’s abandonment to determine your best bet in filing for divorce from your spouse. Armed with full knowledge of your individual situation, your attorney can develop a divorce strategy that will benefit you and your family.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Arguments for Custody Evaluator Immunity in Lawsuit

Sherry cites Jones vs Sherry case in support for her immunity  cases.justia.com/texas/third-court-of-appeals/2019-03-18-00279-cv.pdf?ts=1561724417  Quotes from that appeal:
“When a person is entitled to derived judicial immunity, he or she receives the same absolute immunity from liability for acts performed within the scope of his or her jurisdiction as that of a judge. Dallas County v. Halsey, 87 S.W.3d 552, 554 (Tex. 2002) (concluding that court reporter was not entitled to derived judicial immunity)” 
“Applying the functional approach and considering Dr. Sherry’s relationship to the judicial process in the underlying divorce proceedings, we conclude that Dr. Sherry is entitled to derived judicial immunity for any acts performed within the scope of her delegated authority ” 

Most importantly Sherry violated the Texas Family Code (§107.108) to abide by all standards of care and all ethical standards guidelines ;
AFCC Rules –  Model Standards of Practice for Child Custody Evaluation
www.afccnet.org/Portals/0/ModelStdsChildCustodyEvalSept2006.pdf5.1 ESTABLISHING THE SCOPE OF THE EVALUATION 
The scope of the evaluation shall be delineated in a Court order or in a signed stipulation by the parties and their counsel.

At no point does the Jones appeal discuss the fact that Sherry did not perform within the scope of her delegated authority, and does not mention that Sherry did not follow the laws and codes as stated in Sherry’s own signed stipulation by the parties.   Sherry citing the Jones appeal is irrelevant because the cases are brought about on totally different claims.   Sherry’s scope of the evaluation was delineated in the signed agreement between the parties that stated

  1. Alissa Sherry and her corporation would, and were required to abide by the ethical standards of Psychologists, The Texas Psychologists Licensing Act, and the rules of the Texas State Board of Examiners of Psychologists.  
  2. Forensic assessments conducted through Legal Consensus PLLC are conducted with the highest regard for the ethical standards for licensed psychologists and the ethical standards for forensic psychologists
  3. Alissa Sherry and her corporation would be as legally, professionally, and financially independent of the parties as possible.  In this way the examiner maintains his/her personal integrity
  4. Alissa Sherry and her corporation would provide an independent, neutral, objective examination

Sherry specifically did not complete her contract within the above scope of the evaluation by violating the following laws and codes:

The Relevant and Controlling Statutes and Board Rules

  • The determination of whether or not Legal Consensus fulfilled or breached its contractual obligations requires the Court to consider the applicable contract terms, the relevant statutes, Board rules, and the American Psychological Association (“APA”) Ethical Principals and Code of Conduct applicable to the Legal Consensus Fee Agreement:

  • Tex. Fam. Code:
    • §107.0512. SOCIAL STUDY EVALUATOR: CONFLICTS OF INTEREST AND BIAS.
      • (a) A social study evaluator who has a conflict of interest with any party in a disputed suit or who may be biased on the basis of previous knowledge, other than knowledge obtained in a court-ordered evaluation, shall: (1) decline to conduct a social study for the suit; or (2) disclose any issue or concern to the court before accepting the appointment or assignment.
      • b) A social study evaluator who has previously conducted a social study for a suit may conduct all subsequent evaluations in the suit unless the court finds that the evaluator is biased.
    • §107.0513. GENERAL PROVISIONS APPLICABLE TO CONDUCT OF SOCIAL STUDY AND PREPARATION OF REPORT.
      • (a) Unless otherwise directed by a court or prescribed by a provision of this title, a social study evaluator’s actions in conducting a social study shall be in conformance with the professional standard of care applicable to the evaluator’s licensure and any administrative rules, ethical standards, or guidelines adopted by the state agency that licenses the evaluator.
      • (c) A social study evaluator shall follow evidence-based practice methods and make use of current best evidence in making assessments and recommendations.
      • (e) To the extent possible, a social study evaluator shall verify each statement of fact pertinent to a social study and shall note the sources of verification and information in the report.
    • §107.0514. ELEMENTS OF SOCIAL STUDY.
      • (a) The basic elements of a social study under this subchapter consist of:
        • (2) an interview, conducted in a developmentally appropriate manner, of each child at issue in the suit who is at least four years of age;
        • (7) assessment of the relationship between each child at issue in the suit and each party seeking possession of or access to the child.
      • (b) The additional elements of a social study under this subchapter consist of:
        • (1) balanced interviews and observation of each child at issue in the suit so that a child who is interviewed or observed while in the care of one party to the suit is also interviewed or observed while in the care of each other party to the suit;
        • (2) an interview of each individual residing in a residence subject to the social study;
        • (3) evaluation of the home environment of each party seeking conservatorship of a child at issue in the suit or possession of or access to the child, regardless of whether the home environment is in dispute.
      • (c) A social study evaluator may not offer an opinion regarding conservatorship of a child at issue in a suit or possession of or access to the child unless each basic element of a social study under Subsection (a) has been completed.
    • §107.107 provides that: “before accepting appointment as a child custody evaluator, the person must disclose to the court, the parties’ attorneys, any conflict of interest, any relationship or confidence or trust the person believes the person has with an attorney in the suit, and or any other information relating the persons relationship with an attorney in the suit that could affect the ability of the person to act impartially in conducting the child custody evaluation. After appointment, the person shall immediately disclose to the court any conflict of interest.”
    • §107.108
      • §107.108(a) provides that: A child custody evaluator’s actions must be in conformance with the professional standard of care applicable to the evaluator’s license and any ethical standards or guidelines of the licensing authority that licenses the evaluator.
      • §107.108(c) provides that: A child custody evaluator shall follow evidence-based practice methods, and make use of current best evidence in making assessments and recommendations.
      • §107.108(d) provides that: A child custody evaluator shall disclose to each attorney of record any communication regarding a substantive issue between the evaluator and an attorney of record representing one of the parties. 
      • §107.108(e) provides that: A child custody evaluator shall verify each statement of fact pertinent to a child custody evaluation and shall note the sources of verification and information in the report.
      • §107.108(f) provides that: A child custody evaluator shall state the basis of the evaluator’s conclusions, in the extent to which the information obtained limits the reliability and validity of the opinion and the conclusions and recommendations of the evaluator.
    • §107.109(d) provides that: The additional elements of a child custody evaluations consist of balanced interviews and observations of each child.
    • §107.112 (c) provides that: Except for records obtained from the department in accordance with Section 107.111, a private child custody evaluator shall, after completion of an evaluation and the preparation and filing of a child custody evaluation report under Section 107.113, make available in a reasonable time the evaluator’s records relating to the evaluation on the written request of an attorney for a party, a party who does not have an attorney, and any person appointed under this chapter in the suit in which the evaluator conducted the evaluation, unless a court has issued an order restricting disclosure of the records.
    • §107.115 provides that: The court shall award the person a reasonable fee for the preparation of the evaluation that shall be imposed in the form of a money judgment.
  • Texas Board Psychology Rules (Tex. Admin. Code Title 22 part 21 §461.1 et seq) 
    • 463.8- Licensed Psychological Assistant
      • must practice under the supervision of a licensed psychologist and may not practice independently, unless meet certification standards
  • 465.9 Competency

(a) Licensees maintain current knowledge of scientific and professional information that ensures competency in every area in which they provide services.

(b) Licensees provide services in an unfamiliar area or involving new techniques only after first undertaking appropriate study and training, including supervision, and/or consultation from a professional competent to provide such services.

(c) In emerging areas in which generally recognized standards for preparatory training do not exist, licensees take reasonable steps to ensure the competence of their work and to protect patients,clients, research participants, and other affected individuals from the potential for harm.

(d) Licensees are responsible for ensuring that all individuals practicing under their supervision are competent to perform those services.

(e) Licensees who delegate performance of certain services such as test scoring are responsible for ensuring that the entity to whom the delegation is made is competent to perform those services.

(f) Licensees who lack the competency to provide particular psychological services to a specific individual must withdraw and refer the individual to a competent appropriate service provider.

(g) Licensees refrain from initiating or continuing to undertake an activity when they know or should know that there is a substantial likelihood that personal problems or conflicts will prevent them from performing their work-related activities or producing a psychological report in a competent and timely manner. When licensees become aware of such conflicts, they must immediately take appropriate measures, such as obtaining professional consultation or assistance in order to determine whether they should limit, suspend, or terminate the engagement in accordance with Board rule §465.21 of this title (relating to Termination of Services)

  • 465.10 provides that: Basis for Scientific and Professional Judgments:
    • Licensees rely on scientifically and professionally derived knowledge when making professional judgments.”

  • 465.11- Informed Consent.

(a) Except in an inpatient setting where a general consent has been signed, licensees must obtain and document in writing informed consent concerning all services they intend to provide to the patient, client or other recipient(s) of the psychological services prior to initiating the services, using language that is reasonably understandable to the recipients unless consent is precluded by applicable federal or state law.

(b) Licensees provide appropriate information as needed during the course of the services about changes in the nature of the services to the patient client or other recipient(s) of the services using language that is reasonably understandable to the recipient to ensure informed consent.

(c) Licensees provide appropriate information as needed, during the course of the services to the patient client and other recipient(s) and afterward if requested, to explain the results and conclusions reached concerning the services using language that is reasonably understandable to the recipient(s).

(d) When a licensee agrees to provide services to a person, group or organization at the request of a third party, the licensee clarifies to all of the parties the nature of the relationship between the licensee and each party at the outset of the service and at any time during the services that the circumstances change.

(f) At any time that a licensee knows or should know that he or she may be called on to perform potentially conflicting roles, the licensee explains the conflict to all affected parties and adjusts or withdraws from all professional services in accordance with Board rules and applicable state and federal law. Further, licensees who encounter personal problems or conflicts as described in Board rule 465.9(i) of this title that will prevent them from performing their work-related activities in a competent and timely manner must inform their clients of the personal problem or conflict and discuss appropriate termination and/or referral to insure that the services are completed in a timely manner.

  • 465.13
  • 465.13(a) In General:
    • 465.13(a)(1) provides that: Licensees refrain from providing services when they know or should know that their personal problems or a lack of objectivity have the potential to impair their competency or harm a patient, client, colleague, student, supervisee, research participant, or other person with whom they have a professional relationship.
    • 465.13(a)(3) provides that: Licensees do not exploit persons over whom they have supervisory evaluative, or other authority such as students, supervisees, employees, research participants, and clients or patients.
    • 465.13(a)(4) provides that: Licensees refrain from entering into any professional relationship that conflicts with their ability to comply with all Board rules applicable to other existing professional relationships.
    • 465.13(a)(5) provides that: Licensees withdraw from any professional relationship that conflicts, or comes into conflict with, their ability to comply with Board rules relating to other existing professional relationships.
  • 465.13(b) Dual Relationships:
    • 465.13(b)(1) provides that: A licensee must refrain from entering into a dual relationship with a client, patient, supervisee, student, group, organization, or any other party if such a relationship presents a risk that the dual relationship could impair the licensee’s objectivity, prevent the licensee from providing competent psychological services, or exploit or otherwise cause harm to the other party.
    • 465.13(b)(2) provides that: A licensee must refrain from a professional relationship where pre-existing personal, financial, professional, or other relationships have the potential to impair the licensee’s objectivity or have any other potential to harm or exploit the other party.
    • 465.13(b)(5): provides that A licensee considering a professional relationship that would result in a dual or multiple relationship shall take appropriate measures, such as obtaining professional consultation or assistance, to determine whether there is a risk that the dual relationship could impair the licensee’s objectivity or cause harm to the other party. If any potential for impairment or harm exists, the licensee shall not provide services regardless of the wishes of the other party.
    • 465.13(b)(6) provides that: A licensee in a potentially harmful dual or multiple relationship must cease to provide psychological services to the other party, regardless of the wishes of that party.
  • 465.15- Fees and Financial Arrangements
    • (a) (3) Licensees shall not withhold records solely because payment has not been received unless specifically permitted by law.
    • (b) Ethical and Legal Requirements.
    • (2) Licensees do not misrepresent their fees.
    • (3) Licensees do not overcharge or otherwise exploit recipients of services or payers with respect to fees.
  • 465.16
    • 465.16(b)(1) provides that: “Licensees verify… that every evaluation… recommendation… evaluation statement… is based on information and techniques sufficient to provide appropriate substantiation for its findings.”
    • 465.16(b)(3) provides that: “Licensees who… utilize psychological assessment techniques… do so in a manner and for purposes for which are professional or scientific-based.”
    • 465.16(c)(1) provides that: “Licensees include all information that provides the basis for their findings in any report in which they make findings or diagnoses about an individual.”
    • 465.16(c)(2) provides that: “Licensees identify limits to the certainty with which diagnoses, judgments, or predictions can be made about individuals.”
    • 465.16(c)(3) provides that: “Licensees identify various test factors and characteristics of the person being assessed that might affect their professional judgment… when interpreting assessment results, including automated interpretations.”
    • 465.16(c)(5) provides that: “Licensees provide opinions of the psychological characteristics of individuals adequate to support their statements or conclusions…”
  • 465.17
    • 465.17(e)(4)(A) Disclosure of Conflict and Bias provides that: “Licensees shall comply with all disclosure requirements set forth in Tex. Fam. Code Ann. §107.107.”
    • 465.17(e)(5)(A) Elements of Child Custody Evaluation provides that: “Licensees shall comply with Tex. Fam. Code Ann. §§ 107.108, 107.109, and 107.1101 when conducting child custody evaluations.”
  • 465.18
    • 465.18(a)(3) provides that: All forensic opinions, reports, assessments, and recommendations rendered by a licensee must be based on information and techniques sufficient to provide appropriate substantiation for each finding.
    • 465.18(b)(1) Limitation on Services- A licensee who is asked to provide an opinion concerning an area or matter about which the licensee does not have the appropriate knowledge and competency to render a professional opinion shall decline to render that opinion.
    • 465.18(c)(4) provides that Describing the Nature of Services. A licensee must document in writing that subject(s) of forensic evaluations or their parents or legal representative have been informed of the following:… (4) The identity of the party who will pay the psychologist’s fees and if any portion of the fees is to be paid by the subject, the estimated amount of the fees…
    • 465.18(c)(7) The approximate length of time required to produce any reports or written results
    • 465.18(e)(6)(A) provides: (A) Licensees shall comply with the requirements of Tex. Fam. Code Ann. §107.112  regarding:
  • (i) the disclosure of communications between evaluation participants;
  • (ii) the creation and retention of records relevant to the evaluation; and
  • (iii) access to evaluation records
  • 501.351- General Authority to Delegate

A- A psychologist licensed under this chapter may delegate to a provisionally licensed psychologist, a newly licensed psychologist who is not eligible for managed care panels, a person who holds a temporary license issued under Section 501.263…

B- Delegating psychologist remains responsible. Individual administering the test must inform each patient that the person is being supervised by a licensed psychologist.

C- The board may determine whether the test/service may be properly and safely delegated.

October 15, 2019 meeting of the Texas Behavioral Health Executive Council 2

October 15, 2019 meeting of the Texas Behavioral Health Executive Council

October 15, 2019 meeting of the Texas Behavioral Health Executive Council

The council will oversees and regulates the Texas State Board of Examiners of Marriage and Family Therapists, Texas State Board of Examiners of Professional Counselors, Texas State Board of Social Worker Examiners, and the Texas State Board of Examiners of Psychologists.

Texas Appeals Court Upholds Permanent Injunction Prohibiting Contact Between Father’s Girlfriend and Child

Texas Appeals Court Upholds Permanent Injunction Prohibiting Contact Between Father’s Girlfriend and Child

Originally published by Francesca Blackard.

By

Generally, a permanent injunction is difficult to obtain and requires proof that certain requirements are met.  In Texas child custody cases, however, a court may be able to issue a permanent injunction, even if those requirements have not been met, if it finds that the injunction is in the child’s best interest.  In a recent case, a father appealed an injunction prohibiting him from allowing contact between his girlfriend and his child.

The parents had agreed to temporary orders prohibiting any unrelated adult in a romantic relationship with one of the parents from spending the night in a home with the child.  The temporary order also stated that the father’s girlfriend would not be around the child while the father had possession.

Following a mediated settlement agreement addressing all other issues, the trial court held a hearing to address this issue. The trial court granted an “injunction” prohibiting contact between the father’s girlfriend and the child without hearing evidence.  The mother’s attorney stated they had been unable to serve the father’s girlfriend with notice of the hearing.  The court indicated it was entering a “permanent morality clause” based on the girlfriend not testifying. The father’s attorney argued there was no evidence to support a permanent injunction.  The court stated it was a “moral clause,” not an injunction, but then heard evidence from the mother, the mother’s other daughter, and the process server.

 

The process server testified regarding his attempts to serve the girlfriend.

The mother’s 15-year-old daughter testified the father’s girlfriend had contacted her on Instagram and made negative comments about her mother.  The court allowed screenshots of the Instagram communications into evidence over the father’s objection that they were hearsay and had not been authenticated.

The mother testified the girlfriend had contacted her about her affair with the father.  She alleged the girlfriend had posted nude photos of herself online and had made social media posts about marijuana and alcohol.  She also testified the girlfriend and child got along well and she had no evidence that the girlfriend had ever harmed the child.

The father moved for rehearing after the court granted the “morality clause.” After the hearing, the trial court entered both a morality clause and an injunction.  The morality clause provided that no unrelated person of the opposite sex in an intimate relationship with a parent could spend the night when the child was in that parent’s care.  The permanent injunction enjoined the father from allowing the child to have any contact with his girlfriend.

The father appealed, arguing the injunction was not supported by proper evidence.  He argued the trial court should have excluded the daughter’s testimony because she was not disclosed as a witness.  Evidence that is not properly disclosed can generally not be admitted just to satisfy the interest of justice, but may be admitted if there is a good cause.  The mother argued that the Instagram messages were sent during the week before the hearing, and this timing constituted good cause not to supplement the discovery responses before the hearing.  The father argued he was unfairly surprised and prejudiced.  Some Texas appeals courts have held a trial court should admit testimony despite unfair surprise or lack of good cause for a delay in disclosure if admission of the evidence is in the best interest of the child.  Based on this standard, the appeals court found no abuse of discretion in the admission of the daughter’s testimony.

The appeals court also rejected the father’s argument that the Instagram messages should have been excluded as hearsay.  A statement is only hearsay if it is offered to prove the truth of the matter asserted.  The messages were not presented to prove the truth of the matter asserted.  The mother presented the negative statements about her not to prove they were true, but to show the communications had been made.  The communications were therefore not hearsay.

The father also argued there was not sufficient evidence to support a permanent injunction.  Generally, to get a permanent injunction, a party must show there is a wrongful act, imminent harm, irreparable injury, and no adequate remedy at law.  In child custody cases, however, a court may grant a permanent injunction that is in the best interest of the child even if all of these elements are not met.  The appeals court found no abuse of discretion in the trial court’s granting of the permanent injunction upon finding it was in the child’s best interest.

The father also argued that there was insufficient evidence to support the injunction.  The appeals court noted that sufficiency of the evidence was not an independent ground to overturn the injunction.  It is instead a factor in determining whether the trial court abused its discretion.

The mother’s daughter testified the father’s girlfriend made negative comments about the mother and the screenshots she provided reflected the nature of those messages.  The trial court could have found the child was at risk of being exposed to similar comments as those directed at her 15-year-old half-sister.  The mother had also testified she had spoken to the father about the girlfriend’s drug-related posts, and he indicated he was aware of her drug use.  The trial court could have found the girlfriend had used illegal drugs, that the father was aware of it, and that he was not opposed to the drug use.  The trial court also could have found the girlfriend presented a risk of promoting parental alienation.  The trial court could therefore have found that it was not in the child’s best interest to allow contact with the girlfriend.  The appeals court found no abuse of discretion in the issuance of the permanent injunction and affirmed the judgment.

If you are involved in a child custody matter, a skilled Texas custody attorney can help pursue any necessary court orders.  Set up an appointment with McClure Law Group by calling 214.692.8200.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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7 Strange Divorce Laws Still “On The Books”

7 Strange Divorce Laws Still “On The Books”

Originally published by Hendershot, Cannon and Hisey, P.C. Blog.

At Hendershot, Cannon & Hisey, P.C., many of our blogs shed light into the intricate inner workings of Texas divorce and family law – from property division and child custody to spousal support, taxes, and more.

While divorce is certainly a serious subject where being well-informed is of crucial importance, taking a moment to reflect on some of the more unusual aspects of this practice area can provide a different perspective on your own issues, as well as a few laughs or food for thought.

Few things offer such an opportunity than a look into the most unique and unusual divorce laws.

7 Unusual Divorce Laws

In the U.S. and other countries around the world, there remain a number of strange divorce laws that are still technically in effect.

Whether they’re inexplicably bizarre, reminders of times gone by that haven’t yet been changed, or newer laws that address issues not ordinarily associated with the divorce process, these obscure laws are enough to make anyone think twice about their own cases.

Here are some of the strangest divorce laws still on the books today:

  1. Divorce is still illegal in some countries – Laws prohibiting divorce are some of the most tangible reminders of its historical evolution. Even well into the 21st century, a number of countries across the world do not allow spouses to divorce. In the Philippines, for example, divorce is generally illegal with the exception of certain circumstances, such as those involving Filipino citizens who marry foreign nationals and divorce in their spouse’s country of residence (but even when two Filipino spouses divorce in another country, their divorce won’t be recognized under their own country’s laws). In the Philippines, as well as countries that have just recently implemented some form of legal divorce (like Chile), terminating a marriage often requires spouses to navigate complex and lengthy proceedings. This includes having to prove a reason for divorce, as well as requirements that spouses be separated for several years before any formal separation or annulment is granted.
  2. Married on a dare? – Although there may not be many spouses who chose to tie the knot on a dare, those in Delaware who regret doing just that have the right to file for an annulment under a strange provision of the Delaware Divorce and Annulment Act. Among other qualifying reasons for granting an annulment, Delaware courts will grant a decree of annulment when one or both parties entered into marriage as a “jest” or dare.
  3. Marrying the same person four times – Though not common, there are cases of spouses who get divorced only to reconcile and rekindle their relationships later on, sometimes to the point of getting married again. While that’s understandable and perhaps part of the mystery of love, spouses on that trend should be careful of one unique Kentucky law prohibiting multiple marriages to the same spouse. Under state law that could have only been passed in an attempt to help couples stop the madness, it’s illegal for folks in Kentucky to marry the same person four times. For most people, however, that’s probably not a concern.
  4. Strange grounds for divorce – Today, all states in the U.S. have adopted some form of no-fault divorce, though there are still fault-based divorces and justifications for citing a reason to divorce (such as domestic violence or other issues that would impact case outcomes). While grounds for a fault-based divorce usually make sense (i.e. adultery, abandonment, or a criminal conviction resulting in incarceration), some states still have more unusual statutory provisions for permitting divorce. These include divorce on the basis of mistreating a spouse’s mother-in-law (Wichita, Kansas), or a spouse going “insane” up to five years after a marriage (New York). In Tennessee, you can even cite “attempted murder” as a valid grounds for divorce thanks to a law that permits divorce when one spouse tries to kill the other in a malicious manner (one example of “malice” cited in the statute is by using poison). There are also laws in other countries which provide some unique grounds for divorce. In Samoa, women can legally divorce their husbands for forgetting their birthdays, and in Saudi Arabia, married men who fail to bring their wives fresh coffee each day could very well find themselves served with divorce papers.
  5. Divorce can be simple for some societies – While the divorce process can entail a range of emotional and financial concerns in many countries, it can actually be pretty simple for spouses elsewhere. In Eskimo societies, for example, spouses who live apart from one another for any period of time can formally end their marriages. In Australia, Aboriginal women with husbands who won’t file for divorce (since women cannot file) have the option of simply marrying another spouse. An elopement instantly ends the previous marriage.
  6. Pet Custody – Child custody proceedings are among the most important matters in divorce, but what about custody of pets? While deciding who keeps the dog, cat, or other furry friend may not have been as much of a concern years ago, many people today view their pets as a part of the family. As such, there’s been a growing focus on “pet custody” and how family courts handle these matters upon divorce. In states with evolving pet custody legislation, family judges have discretion to consider the best interests of pets, rather than treating them solely as property.
  7. Marriage Laws – In addition to divorce laws, many states have laws addressing how spouses marry and even what they’re allowed, and not allowed, to do during the marriage. In South Carolina, for example, the state’s Offenses Against Morality and Decency Act makes it a misdemeanor for men over the age of 16 to propose to women as a means of seduction. There are also laws prohibiting married couples from sleeping nude in a rented room (Salem, Massachusetts), wives from wearing false teeth without the written permission of their husbands (Vermont), spouses from getting married if the county clerk issuing the marriage license believes either spouse is drunk, insane, or an imbecile (Mississippi), and even husbands from scowling at their wives on a Sunday (Colorado).

Help for Houston Spouses Seeking Divorce

If there’s anything worth taking away from these strange and arguably outdated laws, it is that divorce and family law, like any area of law and the societal views that shape them, are constantly evolving.

At HCH, we know staying apprised of current laws and issues that impact our clients is critical when it comes to providing personalized, quality representation. That includes everything from helping clients who attended college in a time of rising tuition rates address the division of student loans, helping older adults determine how their retirement accounts will be divided, and more.

If you are currently considering divorce in Houston or any of the surrounding areas of Texas, our award-winning legal team at Hendershot, Cannon & Hisey, P.C. is here to help. Call (713) 909-7323 to speak with a lawyer.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Texas Court Finds Prenuptial Agreement Was Enforceable

Texas Court Finds Prenuptial Agreement Was Enforceable

Originally published by Robert Epstein.

By

Texas law generally favors the freedom of contract.  This principle also applies to prenuptial agreements.  In Texas divorce cases, prenuptial agreements are generally valid and enforceable unless they were involuntarily signed or were unconscionable and signed without proper disclosures.

A wife recently challenged the enforceability of a prenuptial agreement. The couple met online while the wife lived in Vietnam.  When the husband visited Vietnam, he gave her a copy of the prenuptial agreement his attorney drafted.  The wife did not speak English, so she had it translated.  She requested a change to the agreement.

The wife came to the U.S. and told the husband she was pregnant a few months later.  He told her she needed to sign the agreement before they got married. The husband stated a paragraph was removed from the agreement based on the wife’s request.

 

He took her to a Vietnamese-speaking attorney for a consultation. The husband paid the fee, but was not there for the consultation.  The parties signed the prenuptial agreement in the attorney’s office after the consultation.

The wife filed for divorce in 2015.  The trial court found the prenuptial agreement was enforceable and incorporated it into the final divorce decree.  The wife appealed, arguing the agreement was unconscionable, involuntarily signed, and violated both federal law and the Texas Constitution.

In support of her unconscionability argument, the wife asserted she was pregnant “when it was made clear” she had to sign or go back to Vietnam.  She also argued it was unconscionable to “forc[e] a mother to accept a likely future in which her child would seldom see his father,” especially when both “would be at risk of shame and humiliation” in Vietnam.  She said she thought her child’s life would be better in Texas.  She argued it was unconscionable to require her to sign to avoid having to go back to Vietnam. She claimed taking her to a lawyer found in the yellow pages was just “window dressing.”  She asserted she was more unsophisticated than the husband and did not speak English.  She also argued he had not disclosed information about his assets and liabilities.  Finally, she argued it was a one-sided agreement.

When reviewing unconscionability, courts consider the circumstances, including available alternatives, bargaining ability, illegality or public policy against the contract, and whether it is “oppressive or unreasonable.” When reviewing prenuptial agreements, courts may consider age and maturity, business and educational backgrounds, and prior marriages.  The court will generally enforce a voluntarily-entered contract unless there is mistake, fraud, or oppression.

The wife knew the husband expected a prenuptial agreement before she met him in person. She testified they commonly discussed it after their engagement.  He gave her a copy when he was in Vietnam in the summer of 2007.  They executed the agreement in August 2008. The appeals court found she knew about the prenuptial agreement long before she arrived in the U.S. and became pregnant.

The court found the wife’s various reasons for not wanting to return to Vietnam did not make the agreement unconscionable. There was no evidence the mother or the child would be in danger there.

The appeals court also rejected the mother’s argument regarding her attorney. She argued the attorney could not have performed independent due diligence, such as finding out the property values.  The appeals court found no evidence that information was necessary or the wife did not already know it.  She testified she understood the terms of the agreement.

The wife argued the husband had not disclosed information about his assets and liabilities.  There was testimony the husband had disclosed.  Even if he had not, it would not make the agreement unconscionable.  Lack of disclosure is the second prong of the test and only matters once the agreement is found unconscionable.

The appeals court also rejected the wife’s argument she was less sophisticated and had less bargaining power.  Both parties were mature adults.  Although she had less formal education, the wife had owned and operated two businesses in Vietnam.

An agreement is not unconscionable just because it is one-sided or unfair. The appeals court found no evidence of mistake, fraud, or oppression.

There was no error in the trial court’s finding the agreement was not unconscionable.

The wife also argued the agreement was not voluntarily executed. In reviewing voluntariness, courts consider whether the party had an attorney’s advice, whether there were misrepresentations, what information was provided, and whether anything was withheld.  She argued her attorney had not had opportunity to study the agreement, analyze the information about the assets and liabilities, and “review the immigration agreements.”  The appeals court found no evidence the attorney did not have sufficient time to review the agreement.  Both the wife and the attorney testified she understood the agreement’s terms. She did not claim she received incompetent legal advice.

The appeals court rejected her claim the agreement was involuntary because it contained material misrepresentations regarding whether it disclosed the value of assets and liabilities.  There was evidence the husband had disclosed the information regarding the assets and liabilities.

The wife also argued she was under duress because she did not want to return to Vietnam.  The appeals court noted duress is only a defense to a contract if it involves a threat to do something the party has no right to do.  The husband did not have a legal duty to marry the wife, so his threat not to marry her if she did not sign did not constitute duress.

The wife argued the agreement violated federal law because it conflicted with the affidavit of support the husband signed.  She argued the affidavit created an obligation requiring the husband to use all of his assets to support her, while the prenuptial agreement only obligated him to use community property.  The appeals court found any obligation created by the affidavit ended when she became a citizen.  The appeals court also rejected the wife’s argument the agreement violated the Texas Constitution.

The appeals court affirmed the trial court’s judgment.

If you are facing a divorce involving a prenuptial agreement, an experienced Dallas divorce attorney can assist you.  Call McClure Law Group at 214.692.8200 to set up a consultation.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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