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Texas Court Grants Grandparents Visitation and Access to Grandchildren

Texas Court Grants Grandparents Visitation and Access to Grandchildren

Originally published by Francesca Blackard.

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Under Texas family law, a court may grant grandparents reasonable possession and access to a grandchild if three conditions are met.  First, at least one of the child’s parents, whether adoptive or biological, must have parental rights to the child.  Second, the grandparent must overcome the presumption the child’s parent is acting in the child’s best interest by showing that denying the grandparent possession or access would result in significant impairment to the child’s health or well-being.  Finally, the grandparent must be the parent of the child’s parent, and that parent must have been incarcerated during the past three months, have been found incompetent, be deceased, or not have possession or access to the child.  TEX. FAM. CODE ANN. § 153.433.

In a recent case, a father challenged an order allowing the maternal grandparents possession and access to his children.  The parents and children stayed with the grandparents while they looked for a house when they moved to Texas from California.  The grandparents supported the family so the parents could save up to buy the home.  After the parents bought a home nearby, the children regularly visited their grandparents, sometimes overnight.  The grandparents would take the children to school and attend school functions.  The grandmother testified she felt she had assumed the role of parent.

The grandmother testified both parents were alcoholics.  The mother’s friend testified the parents had a tense and unhealthy relationship.  There was testimony that the mother sent the children to stay with the grandparents when the situation at home grew tense.  The father’s friend testified the father left the children with the grandparents when he went to bars and nudist colonies.  He also testified the father told him he often argued with the mother, but did not state the arguments ever turned physical.

 

The mother sadly died in 2018.  The children stayed with their grandmother for several days and the oldest child told the grandmother they were going to live with their other grandparents in California.

The grandparents promptly filed suit seeking sole managing conservatorship.  Although they obtained a temporary restraining order to keep the father from moving the children from the county/ the children went to live with their paternal grandparents in California when it expired.

The grandparents amended their petition to seek possession and access to the children under the grandparent access statute.  Following a trial, the court found the grandparents had proved by a preponderance of the evidence that denying them possession or access would significantly impair the health or well-being of the children.  The court granted the grandparents possession for one weekend during the fall and spring semester and seven days during the summer.  The grandparents were also allowed phone, Skype, or FaceTime access.  They were also allowed to send cards, letters, and gifts.

The father appealed.  In this case, the only element at issue was whether the grandparents had overcome the presumption the father was acting in the children’s best interest.  The father argued the grandparents had not submitted evidence of any impairment to the children from denial of access.  He testified the children were doing very well and had not shown any need for psychological treatment or counseling.  They lived with his parents, where the oldest had her own room and the boys shared a room.  They were physically safe and doing well psychologically.

The grandparents argued the father had not provided counseling for the children and planned to deny all access to the grandparents.  The appeals court noted that the leading cases overturning orders granting grandparent access involved evidence that the parent would not deny the grandparent all access to the child.  The father testified he would not allow any access or possession of the children unless ordered to do so by the court.

The appeals court found no evidence denying the grandparents access would significantly impair the physical health of the children, but there was sufficient evidence it would significantly impair their emotional well-being.  The grandmother testified denying them access would not be in the children’s best interest.  The mother’s friend and the father’s friend each testified they did not think the father was acting in the children’s best interest.  The grandmother testified the children had lost their mother, grandmother, and home, and had moved to live with grandparents they had rarely seen.  There was evidence regarding the father’s heavy drinking and potential alcoholism.

The father testified that the children did not exhibit any emotional turmoil.  He said they did not ask about their grandparents.  He testified they were healthy and doing well.

The appeals court found the trial court could have reasonably disbelieved the father’s evidence and found the grandparents overcame the parental presumption by a preponderance of the evidence.  The appeals court affirmed the order.

Although it can be difficult for grandparents to get access and possession of their grandchildren, it is possible under certain circumstances.  This case may have turned on the father’s intent to deny all access to the grandparents.  If you are seeking or fighting grandparents’ rights, a knowledgeable Texas custody attorney can advise you and fight for your rights.  Call McClure Law Group at 214.692.8200 to set up a meeting to talk about your case.

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



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Texas Court Orders Child’s Name Change to Include His Father’s Surname

Texas Court Orders Child’s Name Change to Include His Father’s Surname

Originally published by Robert Epstein.

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Under Texas family law, a court may order a child’s name be changed if doing so is in the child’s best interest.  Neither parent is specifically granted the right to name the child under Texas law, but generally a child’s name will not be changed unless the party seeking the change shows a good reason for it.  In a recent case, a mother challenged a court’s order to change the child’s name to include the father’s last name.

The parties appeared to have a good co-parenting relationship.  According to the appeals court’s opinion, the child lived with the mother, but the father had always been a part of his life and assisted financially with his living expenses.  The father’s family was also significantly involved in the child’s life, helping the mother financially and with child care.

The mother had been adopted as a young child.  She grew up in Virginia and moved to Texas when she was 18.  She did not have any family other than her son in Texas.  Due to the distance, the child did not have the same amount of interaction with his mother’s family that he had with his father’s family.

 

The mother testified her surname was her adoptive family’s name.  She also testified it was important for her son to have her surname because he was the only biological relative she knew.  She also said it could help him be connected to “different pieces of himself and his history.” She did not believe having her surname instead of his father’s would have a negative effect on the child.

The father testified he thought a name change would help avoid confusion at places like doctor’s offices.  He also hoped the child would play sports and wanted the child to use the father’s name.

Both parents agreed the child was too young to know his name.  Each also said they would not change their surnames.

The father testified the mother did not give him a choice regarding the child’s name.  He also indicated he believed he did not have a choice with regard to signing the acknowledgement of paternity.  He testified he thought the child would have trouble when he got older if he did not have his father’s last name.  He said he did not know any children who did not use their father’s last name, though the children he knew had parents who were married to each other.

The father’s father testified to what he and his wife had done for the child and his mother.  He also testified that he was very close to the child.  He testified that they did things for the child and his mother because they loved them both.

The trial court found it was in the child’s best interest to change his name to include his father’s last name.  The mother appealed, arguing the evidence was legally and factually insufficient to support the finding.

In considering whether a name change would be in a child’s best interest, the court considers various nonexclusive factors, including whether it would avoid embarrassment, inconvenience, or confusion for the custodial parent or child, whether the present or potential changed name would be more convenient, how long the current name has been used, how the change affects the child’s bond with the parent or other family members, and whether the parent is trying to alienate the other parent by seeking the change.  Courts do not have to weight each factor equally.

The appeals court found there was little or no evidence that changing the child’s name would have a negative effect on the mother or child.  The appeals court found there was legally and factually sufficient evidence to support a finding the change would be in the child’s best interest.  The child was only 14 months old and therefore did not have meaningful attachment to his mother’s name.  He had not started school or been involved in extracurricular activities under his mother’s name.  The child was on the father’s health insurance, so the court found it could be beneficial for medical appointments and billing for the child to have his father’s name.

The appeals court acknowledged the mother was the primary caretaker, but also noted the father and his family were an important part of the child’s life.  The mother’s family was less involved in the child’s daily life due to distance. The appeals court found the father’s last name would better help identify the child with a family unit.  The mother and her family were not from the area and did not have the type of ties to the local community that the father’s family had.  The appeals court found having the father’s name would strengthen the child’s relationship with the community.

Finally, the appeals court found the father was not seeking the change to alienate the mother from the child. There was evidence that the father and his family cared for the mother and expected to continue doing so.

The appeals court found no abuse of discretion in the trial court’s finding that changing the child’s name to include his father’s surname was in the child’s best interest.  The appeals court affirmed the trial court’s judgment.

Sometimes unusual disputes arise in matters relating to children, even if both parents care for each other and want to work together.  If you are facing a dispute involving child custody or other matters relating to your children, an experienced Texas family law attorney can help.  Call McClure Law Group at 214.692.8200.

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



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Court Lifts Texas OAG Suspension of Driver’s License for Failure to Pay Child Support

Court Lifts Texas OAG Suspension of Driver’s License for Failure to Pay Child Support

Originally published by Kelly McClure.

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The Texas Office of the Attorney General (OAG) is responsible for certain child support services, including collecting and enforcing Texas child support orders.  Recipients of certain public assistance programs may automatically qualify for the OAG’s child support services, but others have to apply for the services.  The OAG has a variety of ways to enforce child support, including filing liens, issuing writs of withholdings to the parent’s employer, suspending driver’s licenses, and intercepting tax refunds or other money from state or federal sources.

In a recent case, a father challenged the OAG’s enforcement actions against him.  The father was ordered to pay child support beginning in December 1996.  The court also issued an Order Enforcing Child Support Obligation in October 1999, including a cumulative money judgment for $15,000 plus interest against the father in favor of the Attorney General.

In 2015, the OAG sent a notice of child support lien to the father’s bank and issued administrative writs of withholding to his employers.  The OAG also filed a petition with the State Office of Administrative Hearings for the father’s driver’s license suspension.

 

The father filed a motion alleging the OAG violated provisions of the Texas Family Code because it failed to obtain a cumulative money judgment within 10 years of the child becoming an adult.  The OAG did not appear at the hearing.  The trial court lifted the driver’s license suspension, rescinded the writs of withholding, declared the child support liens void, and ordered no further wage withholding.

The OAG filed a restricted appeal.  The OAG argued the trial court did not have subject matter jurisdiction over the driver’s license suspension because the relevant statute required the father to file his petition for review in Travis County district court.  A proceeding regarding the suspension of a parent’s driver’s license for failure to pay child support is governed by the Administrative Procedure Act.  The Administrative Procedure Act requires a person seeking judicial review of a contested case to file the petition in a Travis County district court unless another statute provides otherwise.  TEX. GOV’T CODE ANN. § 2001.176.

The father did not file his petition in a Travis County district court.  The OAG argued that the trial court did not have subject matter jurisdiction over the issue.  The appeals court, however, found that that the statute did not grant Travis County district court with exclusive jurisdiction, but instead provided a mandatory venue.  Mandatory venue, the court noted, may be waived if a party fails to make a timely objection.  The OAG had not made a timely objection.

The OAG also argued the trial court had exceeded its subject matter jurisdiction in enjoining additional administrative writs of withholding.  Under TEX. GOV’T CODE ANN. § 22.002(c), only the Texas supreme court has the authority to issue a writ of mandamus or injunction against an officer of Texas’s executive departments to order or compel performance of a duty state law authorizes the officer to perform.  The appeals court noted  the OAG is an officer of the executive department and is authorized to enforce and collect child support through administrative writs of withholding.  Thus, only the supreme court could enjoin the OAG from issuing such writs in this case.  The appeals court found that the portion of the order stating that “no further wages be withheld in this cause…” constituted an injunction.

The appeals court vacated the part of the trial court’s order that enjoined the OAG from issuing additional administrative writs of withholding and affirmed the rest of the order.

The OAG will become involved in certain cases involving public assistance.  Although parents in other cases may seek the OAG’s assistance, parents should be aware of what OAG enforcement entails.  Once the OAG is involved, the parents are not able to choose which enforcement actions will be taken.  If you are facing a child support issue, an experienced Texas child support attorney can help you consider your options and protect your rights.  Call McClure Law Group at 214.692.8200 to set up an appointment.

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



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What court will hear issues about your child in relation to an international divorce?

What court will hear issues about your child in relation to an international divorce?

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

What court will hear issues about your child in relation to an international divorce?

There is a great deal of uncertainty associated with divorce. For starters, you have no idea how long your case could last. You’ve probably heard horror stories about divorces that have taken years to complete and are worried about yours ending up the same way. Tied to that concern you may be wondering how you are going to afford to pay for the divorce. Attorney’s fees, court costs are just the tip of the iceberg from what you can tell.

What if you were also in a position where you didn’t even know where you would need to ask for a divorce? Many Texas residents know that all we would need to do in order to file for divorce was to submit some paperwork at the local county courthouse in order to start the process. You may not be in that same position, however. If you have resided outside of the State of Texas- or outside of the United States altogether- you may have questions about what court will be able to hear your case in the first place.

Beyond any immediate concerns about yourself, you are likely concerned with what outcome your children will encounter because of your divorce. Kids are the innocent by-standards in any divorce. Because you and your spouse are ending your marriage your children are now facing up to the effects of that choice. You want to do every possible to shield them from the brunt of the divorce but are unclear on some issues associated with your potential case. For starters, what will happen if your child has ties to more than one state- or more than one country?

Custody options that are available when a child has lived in multiple countries

Knowing what options are available to you as well as what courts are available to issue rulings regarding child custody matters ought to be one of the first issues that you explore as you prepare to file for a divorce.

The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) has been adopted by all fifty states and seeks to address jurisdictional problems that are relevant in our country and across the globe. Asking and answering a few questions within the framework of the UCCJEA can tell you a great deal of information about what court is the appropriate venue to file your divorce or child custody case within.

For starters, you will need to determine where your child has been a resident for the past six months. Next, consider whether or not your child has a true home country. If you and your spouse have moved so frequently that it would not be fair to call one country or another their “home” for the purposes of a divorce then you would be going off of where your child has lived during the past six months.

If your child does have a home country where he or she has been raised and is attending school, the next question you need to ask yourself is whether or not a court in that country has already stated that jurisdiction is proper there. However, consider that if you now reside in the United States and have done so for at least six months it may be better suited for your family to file your divorce in the U.S. All of these considerations go out the window if an emergency arises that requires intervention by a court at a moment’s notice, such as when an abduction of your child occurs.

Jurisdiction in international child custody cases is far from simple

As we have seen in the past few blog posts on our website, determining child custody jurisdiction in international cases is not simple at all, unfortunately. You need to be able to balance complex issues with one another while balancing what is in the best interests of your child throughout the evaluation.

Under the UCCJEA a court in the United States may be required to apply the custody laws or another nation in enforcing a foreign court order or even creating a brand-new order for you and your child. As with anything associated with family law, it is strongly recommended that your attorney not only have experience handling child custody cases but also have experience in handling cases that involve the UCCJEA.

Be aware of child abduction issues in connection with international child abduction cases

It is not uncommon to encounter child custody cases wherein one parent attempts to ignore, brazenly, the child custody laws of one country in order to gain entry to a nation whose circumstances are more advantageous. If your child’s other parent believes the laws in their country of origin are “better suited” for him or her then it is not out of the question for him or her to attempt to remove your child without your permission from the United States or whatever country, you currently reside in.

I do not tell you all this in order to frighten or intimidate you. I mention it because it is a relevant consideration in an age where mobility has never been easier. Courts in the United States hear issues all the time of international child abduction cases. The goals of these courts are to quickly and correctly address the issues in that specific case with the goal of returning the children to their home country.

When courts are effective in addressing issues and returning children back to their parents, they not only help the family who is involved in the case but also discourage parents from taking matters into their own hands by attempting to create jurisdiction over a child by means of abduction. What these parents do not consider is that almost every country in the world has signed on to the UCCJEA and would apply the laws of the nation where the child just left in any custody case.

How you can present a case to have your child returned to you 

In the event that you are left behind by your child’s other parent, there are concrete steps that you can legally take in order to have your child returned to you. First, you must be able to establish that he or she was consistently a resident of that country. As a parent, you must next show that based on the laws of your home country you had parental rights. Keep in mind that if you are an absentee parent this could cause problems for you, given that those parental rights must be acted upon. If you do not have a minimal amount of contact with your child it will be difficult to convince a court to have your child returned home.

What can the “other” parent argue in a contested child custody hearing regarding abduction?

If you are in a position where your child has been removed from the United States and taken to another country, you may have some concerns about what your spouse or child’s other parent may be able to argue as far as why the abduction was justified under the law. As I just mentioned, one of the most effective means of legitimizing the actions of the abducting parent would be to argue that you as the non-abducting parent has not attempted to exercise your parental rights. Your not taking an active role in the life of your child could come back to haunt you if this is the case.

Next, if you agreed to the removal of your child from the United States at any point this could also hamper your argument that your child needs to be returned. An email from a few weeks ago where you and your child’s other parent outlined an agreement between the two of you to allow him to take your daughter to Saudi Arabia can diminish the strength of any arguments you have as to why your child needs to be returned to you.

At the very least, if the abducting parent can show a court that while you did not exactly endorse the move if you were not vociferous or took no action to prevent the abduction then it probably cannot properly be called an abduction at all.

Finally, your child’s other parent may attempt to present an argument that your child was facing a serious risk of harm by remaining with you in their “home” country. If there is an issue related to your family, or to the political climate of your home country this can be an effective argument to make. The best interests of your child are going to bee at the forefront of the decision making any court utilizes and showing that child abuse had been ongoing can be an effective tool to utilize.

The age of your child may be a relevant consideration, as well

Even if your spouse or child’s other parent cannot effectively present an argument such as the ones, we have just been discussing it is possible that if your child is old enough, his or her preference to remain in the new country could bolster the case of the abducting parent. The opinion and/or wishes of your sixteen-year-old are likely to be taken a lot more seriously than those of your six-year-old child, mind you.

Do not delay if you seek to challenge the abduction of your child to another country

Act quickly if your child has been abducted from the United States. Under the relevant international treaty, a case requesting the return of your child to this country must be filed within a year of the removal. Once you get beyond this one-year time-frame it is simpler for the abducting parent to make an argument that your child has become more familiar and comfortable in their surroundings. Finding a home, a place to go to school and friends will create a home-like atmosphere that will be tougher for you to counter with arguments of your own. Keep in mind that if you file your lawsuit to have your child returned to the United States within a year of their removal then the opposing party cannot present this argument.

The bottom line is that you need to have a sense of urgency when it comes to your actions that are taken in the time period immediately following the abduction of your child. I’m sure that this will not be difficult, as I can only imagine the fear and anger that would arise in me if this happened to one of my children. Do not let fear or the unknown or concerns about external issues weigh you down and prevent you from making a decision that could save your family from a great deal of hardship,

If you find yourself in a position where you need to hire an attorney to help you fight for you, make sure that you verify that the attorney has experience in international child custody matters. Family law experience is not good enough for one of these cases. When your relationship with your child is concerned you cannot afford to take any chances. Seek out representation that has had proven results in order to give yourself the best chance at a successful outcome.

Questions about international divorce or child custody cases? Contact the Law Office of Bryan Fagan

Thank you for your interest in this topic. If you have any questions about the material that we presented today or seek clarification on anything please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week where we can answer your questions and address your concerns in a comfortable and pressure-free environment. Our attorneys and staff take a great deal of pride in providing comprehensive, family law services to our clients.

No matter where you live in southeast Texas, we are here to serve you. From Baytown to Waller and up to Conroe, our attorneys will put your interests first and advise you to take steps that will seek to improve your family’s well-being.

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



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Texas Court Awards Grandmother Custody of Grandchild

Texas Court Awards Grandmother Custody of Grandchild

Originally published by Robert Epstein.

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Although it can be difficult, in certain circumstances, Texas family law may permit a grandparent to obtain custody even when a parent wants custody. In a recent case, a mother appealed an order giving the grandparents the exclusive right to determine a child’s primary residence.

In 2014, the trial court named the mother managing conservator of her 18-month-old son with the exclusive right to determine his primary residence. The mother and child lived in Lubbock for about a year, and then moved to live with the mother’s brother for about a year.  After that, however, the mother and child moved multiple times.  The mother dated men who had violent criminal histories.  Child Protective Services opened an investigation and developed a safety plan. The child’s paternal grandparents petitioned for the exclusive right to determine the child’s primary residence, and the court granted the petition. The mother appealed.

The mother argued the trial court erred because the grandparents did not have standing to move for modification.  She also argued the trial court abused its discretion when it found there was a material and substantial change in circumstances justifying a modification.

 

Pursuant to Texas Family Code § 102.004, a grandparent may seek managing conservatorship in certain limited situations.  One of those situations is if the child’s current circumstances would significantly impair his or her physical health or emotional development.  There is a presumption for parental custody, so it is not sufficient for a grandparent to show he or she would do better than the parent.  The grandparent must show the parent’s conduct is likely to harm the child’s health or development.

According to the appeals court opinion, the mother admitted to moving at least seven times between the original order and the grandparents’ petition.  She had stayed in at least five different shelters.  The appeals court noted, however, that there was evidence she had moved the child at least nine times in eleven months.  The appeals court also noted the mother did not own or lease any of the places she stayed, making the living situation even more unstable.  Additionally, the child had stayed with two workers at the shelter for a period of time.  The appeals court found the evidence supported an implied finding that the conditions of moving frequently significantly impaired the child’s health and development.

The appeals court also noted the mother had indicated she could not care for the children and had asked the grandparents in December, 2016 if they could take care of them.  This was around the same time she had asked the shelter workers to care for the child.  She testified she was not able to care for him then.

There was also evidence that, during the period between the original order and the grandparents’ petition, the mother had dated four men who had prior charges and findings of violence.  The appeals court found the child’s repeated exposure to men with violent histories was relevant to determining whether his health and emotional development were impaired in his mother’s custody.

There was testimony the child had displayed behavioral issues while in his mother’s custody.  The appeals court noted his behavior improved while he was with his grandparents.

In light of the evidence, the appeals court found the trial court did not err in finding the grandparents had standing.

The mother also argued there had not been a significant and material change since the original order.  Generally, a trial court can only modify conservatorship if doing so would be in the child’s best interest and there has been a material and substantial change in circumstances.  The appeals court noted that “frequent changes in the child’s home environment” has previously been found to constitute a material and substantial change in other cases. The appeals court also found the exposure of the child to multiple men with violent histories was a material and substantial change in circumstances.

The appeals court also noted that one of the reasons for the requirement of a material and substantial change is to preserve stability for the child.  The appeals court found the modification supported stability for the child in this case.

The grandparents acknowledged, however, the trial court erred in finding the grandfather had standing to seek the modification.  He was not the child’s biological grandfather, but was instead his step-grandfather.  The appeals court modified the order to remove references to him, but otherwise affirmed the modification to grant the grandmother the right to determine the child’s primary residence.

In this case, the grandmother was granted custody even though the mother fought to retain custody.  This case shows that it is possible for a grandparent to get custody if there is sufficient evidence the child’s physical health or emotional development would be significantly impaired if the child stays in the parent’s custody.  If you are a grandparent seeking custody of your grandchild, you need a Texas custody attorney with extensive experience in family law matters.  Call McClure Law Group at 214.692.8200 to schedule a consultation.

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



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3 Reasons You Want to Avoid Family Court During Divorce

3 Reasons You Want to Avoid Family Court During Divorce

It is better for clients to make their own decisions about what’s best for their children rather than “the stranger in the black robe.”

The post 3 Reasons You Want to Avoid Family Court During Divorce appeared first on Divorce Magazine.

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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.

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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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Prenuptial agreements: Do They Stand up in Court?

Prenuptial agreements: Do They Stand up in Court?

You’ve probably heard a lot about prenuptial agreements from various celebrity engagements and divorces. But are they legally binding? And are they something that ordinary folks really go ahead with?

The post Prenuptial agreements: Do They Stand up in Court? appeared first on Divorce Magazine.

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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.

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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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Texas Court Finds Prenuptial Agreement Was Enforceable

Texas Court Finds Prenuptial Agreement Was Enforceable

Originally published by Robert Epstein.

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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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