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Pet Custody in Texas: Who Keeps the Pet in a Divorce?

Pet Custody in Texas: Who Keeps the Pet in a Divorce?

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

For many Americans, pets are part of the family. While that means our pets can bring years of companionship and joy, they can also become a significant point of contention when spouses choose to divorce. In fact, the issue of “pet custody” has evolved so much throughout the years that it’s become a matter many courts across the country are willing to hear, as well as a focused niche in family law.

At Hendershot, Cannon & Hisey, P.C., our divorce and family law attorneys have worked with all types of clients – from individuals and single parents to large families, married business partners, and yes – pet owners.

Because we know each client has their unique goals, we’re passionate about structuring the strategies to address what matters most them, and what’s most appropriate for their given circumstances. If your pet is part of your family, then we know it’s important to make them a priority – even if Texas courts that have traditionally treated pets as property fail to fully grasp that pets’ value is far more than monetary.

If you are considering divorce and are concerned about what will happen to your furry friend (or any pet or animal you’ve owned with a spouse), working with experienced attorneys can make all the difference in reaching a workable resolution. To help you understand how pets and divorce work in Texas, we’ve put together a few important things to know.

Pet Custody & Divorce: New Trends for the Modern Family

The role pets play in the family unit have made pet custody an increasingly more common area of focus in many divorce cases. Some of the latest developments related to pet custody and divorce make it clear it’s becoming an issue that’s gaining attention:

  • According to a report published by the American Academy of Matrimonial Lawyers, there was a nearly 30% increase in family law cases involving issues of pet custody between 2009 and 2014. During that same five-year period, almost a quarter of attorneys also reported an increase in cases where family judges characterized pets as assets in divorce.
  • Dogs and cats are the most common animals involved in divorce-related pet custody. However, there have been documented divorce cases involving all types of pets and animals, including reptiles, birds, and exotic animals. While many Texas divorces involve farm animals and cattle and livestock, those animals tend to viewed in terms of their monetary value, rather than the emotional value we attach to household pets.
  • Alaska became the first state in the nation to pass pet custody legislation in 2017. Under that state law, courts can consider the wellbeing of pets when making decisions over which spouse will be awarded custody, similar to how courts consider the wellbeing of children in proceedings over child custody (or “possession and access” as it’s known in Texas). A similar law passed in Illinois took effect in 2018, and a measure in California providing judges with the power to treat pets as people (by considering their best interests) became law on the first day of 2019.
  • Advocates and lawmakers from across the country are supporting efforts to raise awareness about this unique issue and introduce and pass pet custody legislation in other states. Earlier this year in Pennsylvania, for example, lawmakers introduced a measure that would differentiate domesticated pets as “companion animals,” and allow judges, if necessary, to decide upon custody of the pet.

Pet custody is certainly not a new issue; spouses have been battling over pets or animals in family courts for decades. However, a lack of clear legislation on how pets are to be viewed in divorce, in addition to the larger role they play in modern families, often means it becomes a matter of discretion, with some judges taking the issue more seriously than others.

Still, it’s indisputable how much we love our pets, and questionable as to whether we may love them even more than people. As one New York State Supreme Court judge who oversaw a pet custody trial involving a mini-dachshund in 2013 noted in his opinion:

“People who love their dogs almost always love them forever. But with divorce rates at record highs, the same cannot always be said for those who marry.”

Pet Custody in Texas Divorce Cases

Although there has been no specific pet custody law passed in Texas, there are still many pet owners who wish to protect their relationships with their pets when it comes time to divorce, and many cases in the past that have dealt with all types of situations and disputes related to shared animals.

Even without a statutory law, there are a few things to consider when dealing with pet custody in a Texas divorce:

  • Pets as Property – The status quo in most Texas divorce cases is to treat pets like personal property. This means they can be deemed community property or separate property. In these cases, courts will generally follow statutory laws when awarding a pet to an owner who purchased or adopted the pet on their own prior to marriage (separate property).
  • Discretion – Although pets can generally be considered property in divorce, any owner knows they are far more than that. Given the emotional significance of the relationship between owners and their animals, judges may exercise discretion to allow owners to raise arguments over custody arrangements, and even consider the best interests of the pet. However, there’s now law requiring that they do.
  • Agreements and Options – As with many aspects of divorce, couples may have the ability to reach mutual agreements with one another over what happens to family pets. This may be facilitated through out-of-court negotiation or mediation that resolves the issue with a property division agreement. It can also result in any number of options for what that agreement looks like, such as having one spouse take one pet and another spouse take the other, or awarding a spouse other assets in exchange for possession of the pet. For some divorcing spouses who end a marriage on good terms, or for whom their pets are that important, it can even involve time-sharing or visitation, depending on their personal wishes.
  • Disputes – Although pets bring us unconditional love and companionship, they can become a focal point for disagreement in divorce. When disputes arise, it becomes important for pet owners to work with experienced attorneys who can leverage their understanding of existing laws, case law, and their ability to illustrate the unique and special relationships clients have with their pets when pursuing a positive outcome. This can be especially important in cases where custody of a pet is being sought as a means to harm the other spouse (i.e. as an act of “revenge”), or when there are other factors involved that would mean pets carry more “value” in terms of being a unique asset, such as pets used as show animals, for breeding, or for performances.

HCH: Protect Your Rights & What Matters Most to You

Hendershot, Cannon & Hisey, P.C. has earned national recognition as proven and experienced divorce and family lawyers, as well as the trust of clients who valued the personalized focus and dedication we devote to their cases and the issues which matter most to them. By working closely with clients, we gain a better understanding of the key issues in their cases, and are driven to help protect their rights as we pursue the most positive outcome possible.

If you have questions about divorce, property division, or your pets, our team is here to help. Call (713) 909-7323 or contact us online to speak with an attorney.

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



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modify child custody agreement

Can I Modify My Child Custody Agreement Myself, Without Going to Court?

modify child custody agreement

 

As an experienced Somerset, NJ divorce and family law attorney, I can tell you that the answer is yes, of course! But I don’t advise it, because when you and your ex alter your child custody arrangements on your own, you are creating more problems than you are solving.

Who suffers? Ultimately, your children.  Read on to find out how you can best protect your children and your parental rights.

Can I Modify My Child Custody Agreement?

The Child Custody Agreement

How a child custody agreement is reached varies by state, but in general, it is negotiated as part of your divorce and a court decree is entered setting forth the child custody terms. When parents agree on what living and legal arrangements are best for their children, the process goes smoothly.

When parents disagree, this is where the court steps in, attorneys negotiate, and a compromise is reached. Most often, compromise satisfies neither party and there are continuing ill feelings. But at least there is a court order in place, and either you or your ex could ask the court to step in if one of you fails to comply with it.

Generally, the initial child custody agreement will establish who has physical and legal custody, and whether there is joint custody shared between the parents or one parent has sole custody.

Physical vs Legal Custody

In most states, legal and physical custody are different rights. The child lives primarily with the parent who has physical custody. Either parent or both may have the right to make decisions for the child, and this is called legal custody.

When parents are married, both have physical and legal custody of their children.  When married parents divorce, these rights must be either divided or shared.

Joint Custody vs. Sole Custody

These are what they say they are:  where children live with both parents, this is called Joint Custody. In this situation, both parents as a practical matter often retain joint legal custody.

Sole Custody is the term for when one parent has both physical and legal custody of a child. Usually, for the other parent to lose these rights, there is a hearing and the judge will make that determination based upon factors that vary by state.

Asking the Court to Alter The Child Custody Agreement

Parents who change the terms of child custody through the courts are doing the most they can to protect their rights as parents because the court issues an order memorializing those changes.  Thereafter, the new child custody terms can be enforced by the court should one party fail to keep to them.

Altering the Terms of Child Custody on Your Own

Of course, you and your ex can agree to change the child custody arrangement outside of court.  It’s quick, easy (assuming you both agree), and cheap in that there no attorney fees or court filing fees. But beware of the following pitfalls of changing the child custody agreement on your own:

The court will not and cannot enforce your new child custody terms.

If your ex wakes up one day and decides not to stick to the new child custody arrangement, there is nothing you can do about it. Only a court order is legally binding on your ex. There is no way to enforce your informal agreement with your ex.

Your ex can get the court to enforce the terms of the original child custody agreement.

You might be acting in good faith and sticking to the changes you and your ex worked out.  But your ex could still haul you in front of the judge and demand that the court enforce the original child custody order.  That would be well within his rights, and the court would find that you are the party who violated the order.

Changes in child custody may work out at first, but if you allow one informal change, where does it end?

It is common for an ex to take advantage of the situation when you are willing to make informal changes, either planned or on-the-fly.  Your life could become a hell of variables and resentment, with your ex constantly demanding little changes to the child custody schedule and you feeling powerless to say no because you allowed such changes in the past.

In short, making informal changes to child custody might seem convenient and harmless at the time but you end up laying the groundwork for future conflict between you and your ex. Didn’t you go through the pain of divorce to end that conflict? Your children also suffer, not only from the revived conflict between you but from the uncertainty in their parenting schedule. Parents who remain civil, a calm, stable environment, and a predictable schedule all help children heal from divorce.

Let the court help you and your children, and your ex, move forward in an orderly and predictable way by memorializing any needed change to a child custody agreement with a court order.

The post Can I Modify My Child Custody Agreement Myself, Without Going to Court? appeared first on Divorced Moms.

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Child Support Custody And Visitation

Guidelines The Court Uses To Determine Child Support, Custody, And Visitation

Child Support Custody And Visitation

When going through a divorce with minor children or determining paternity, one of the many decisions you will need to make is how much time each parent will spend with the minor children.

It is important to note that the amount of time spent with the children can also affect child support.

The goal of any agreement affecting children should be to protect the children’s best interest.

However, due to the emotional nature and financial implications of custody and visitation, many parents struggle to reach an agreement.

In the event parents are unable to find an agreeable solution the Court will intervene and create child custody and visitation orders based on several factors, including the children’s best interest.

Once the Court determines child custody and visitation, it will then use guidelines dictated by statutes and a child support worksheet to determine which spouse owes the other child support.

Determining Child Support, Custody, And Visitation

Child Support

In California, both parents are financially responsible for minor children. However, child support can be ordered to help provide for the children’s housing, clothing, food, extracurricular activities, and other needs.

Child support is based on several factors including each parent’s gross income, mandatory deductions, tax deductions, amounts paid for healthcare, time spent with each parent and more.

Most often, the higher-earning parent will pay child support as they have more disposable income. For families who have 50/50 or close to equal timeshare with the children, the parent who claims the minor children as dependents could be ordered to pay the other parent support.

With so many factors and variables in determining support, it is important to speak with a professional to review all available options and develop the best child support agreement for you and your children.

Imputing Income

If you or the other parent is unemployed or underemployed, the Court can still order child support. In either situation, the Court will review employment records and education history to determine if gainful employment is feasible and determine what their earning capacity may be.

The Court may also consider other factors, including the length of time you have been out of work and the current state of the job market.

If the Court finds one parent is underemployed or willfully not working, the Court could assign income to that parent based on previous salary or current earning capabilities determined by work or educational experience.

The assignment of income, also known as imputing income, can result in Court-ordered child support.

If a parent fails to meet their financial obligation and does not pay child support as ordered, arrears will accrue, and the parent could face additional penalties.

State Disbursement Unit (SDU)

In the past, child support was paid directly to the receiving parent. When a child support order dictated automatic deductions, the paying parent’s (payor’s) employer would withhold the amount ordered and send it directly to the other parent.

However, in 1996 the federal government passed the Personal Responsibility and Work Reconciliation Act, requiring states to create a centralized location where parents pay child support. The creation of State Disbursement Units facilitated payment by collecting child support and distributing to the receiving parent.

When a child support order utilizes SDUs to facilitate payment through employers, payors can have up to 50 percent of their wages deducted.

In addition to facilitating payment, the 1996 Act changed how payment was distributed if a payor had more than one child support order.

Prior to the implementation of the SDUs, child support orders were prioritized by date. For instance, if a payor had orders to pay child support for children from a previous relationship and for the most recent relationship, and the amount ordered for the first relationship more than 50 percent of their income, the first family would get the full amount while the second family would receive partial payment or nothing.

After 1996, a paying parent’s child support amount can change based upon how much the payor parent earns or if there are other child support orders or arrearages are owed by the payor parent.

The SDUs can adjust the distribution of child support to ensure all children receive support. This can result in a reduction of child support received if the amount owed for all orders exceed 50 percent of the payor’s income.

However, the original amount ordered is still due and arrearages will build up unless the paying parent pays the difference directly to the SDU.

Child Custody and Visitation

California recognizes two types of custody: legal custody and physical custody.  Legal custody refers to the ability to make decisions that affect the child’s health, welfare, and safety. Legal decisions include what doctors the child sees, what school the child attends, participation in religious activities, when the child can get a driver’s license, and more.

If one parent has sole legal custody, they are not obligated to consult the other parent when making decisions.

However, if parents have joint legal custody, they will both be able to make decisions. Ideally, both parents would communicate and agree on any decisions that affect their children.

Physical custody refers to the time spent with each parent and where the child resides. Joint physical custody, when children live with both parents, is the most common arrangement and the goal of California Courts.

However, it is not the best solution for all families, especially if domestic or substance abuse is an issue. If one parent has primary or sole custody, the other “non-custodial” parent has visitation.

Visitation schedules can vary depending on the relationship between parents and their children and work or school schedules. Common visitation schedules are unsupervised visits every other weekend, bi-weekly visits, alternating major holidays, or supervised visits once a week.

It is highly suggested that both parents work together to create a parenting plan detailing visitation, pick up/drop off times and more.  If you are unable to reach an agreement, a family law attorney can help you create a parenting plan that not only benefits the children but considers the parents’ schedules. In the event, you are unable to come to an agreement the Court can hear your concerns and create custody and visitation orders.

However, court orders will dictate the amount of time each parent spends with the children, which can result in orders that neither you nor the other parent agree with and have financial ramifications for many years.

Custody Disagreements

In some cases, the parents may not be able to come to a custody agreement. Regardless of how you feel about your spouse, you should not bring your children into the argument.

Nor should you try to dissuade your children from seeing the other parent. The Courts will consider this when making a custody decision.

In most cases, the Court will not let a child testify as to which parent the child wishes to stay with as it is not fair to make the child choose.

When determining custody, the Court will review several factors such as the amount of time each parent spends with the children, domestic violence issues, substance abuse, involvement in educational or extracurricular activities, and general care.

Child Custody Evaluations

In some situations, the Court may order a child custody evaluation to help resolve a custody dispute. If ordered, the court can appoint an evaluator, or the parents can choose a private evaluator.

In either situation, both parties are responsible for the cost of the evaluator. The evaluator’s role is not to treat patients, but to provide an objective evaluation with informed opinions to help the Court determine the most appropriate custody outcome. The evaluator will conduct an investigation and interviews to decide which parent can provide the best situation for their children.

Evaluators weigh several factors to make their decision, including reviewing interactions between parents and their children, if the parents allow contact or visits with the other parent, and how the children behave in front of each parent.

Spoiling a child will not get you extra points!  Once the evaluator has completed their investigation, they will submit their opinion to the Court for consideration.

An Attorney for the Child

In addition to a child custody evaluation, or in place of an evaluation, the Court may appoint an attorney for the child, referred to as Minor’s Counsel.

The role of Minor’s Counsel is to protect and advocate for the child’s best interest. As with the evaluator, both parties share in the cost of the child’s attorney. While the Minor’s Counsel generally has wide discretion in their investigation, it often involves multiple interviews with the children, and sometimes the parents.

Upon conclusion of their findings, Minor’s Counsel will present their recommendation and the children’s wishes to the Court for consideration when creating orders.

Following Court Orders

Parents who fail to follow court orders can be in contempt of the Court, resulting in fines or worse.

Parents of children who refuse to visit the other parent according to their visitation orders can also be held in contempt and face financial fines or even jail.

However, the success of contempt charges depends on several factors, including the child’s age and the concept of parental control. If your children are refusing to see their other parent, it is imperative you contact a family law attorney as soon as possible.

An experienced attorney can listen to your situation, advise the proper course of action to protect parental rights, and against contempt charges.

The Best Outcome

Even if you and your spouse cannot get along, it is better if you are able to create a parenting plan with the help of your attorneys.

The focus of any agreement should always be protecting the best interest of your children.

Consistent, cordial communication with your co-parent can help you and your children transition to the new family dynamic.

Additionally, discussing decisions surrounding the children’s health, safety, and welfare together can help avoid the stress of costly court appearances. In the event an agreement can’t be reached, an experienced family law attorney can help you protect your children and your parental rights.

The post Guidelines The Court Uses To Determine Child Support, Custody, And Visitation appeared first on Divorced Moms.

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Texas Court May Not Make Substantive Change When Clarifying a Custody Order

Texas Court May Not Make Substantive Change When Clarifying a Custody Order

Originally published by McClure Law Group.

By

Most Texas custody cases are between a child’s parents, but in some cases other family members may be involved.  In a recent case, an uncle challenged a modification of the access and possession terms of a court order related to his brother’s child.  Although the trial court expressed an intention to clarify the original order, the appeals court found it had improperly made a substantive change.

The child’s father is deceased.  In 2016, the father’s brother filed suit to be named as the child’s primary conservator.  The uncle and the mother ultimately reached an agreement, which was incorporated by the court’s order.  The order gave primary possession to the uncle and periodic possession to the mother.  The uncle had the right to request the mother undergo drug testing once a month.  She was required to appear for drug testing at a designated location within 24 hours of the uncle sending notice.  The uncle was prohibited from sending notice Friday through Sunday at 9:00 a.m. If the mother failed to appear within 24 hours, the results would be deemed positive.  If the drug test results were positive or deemed positive, the mother’s periods of possession would be suspended until there was a further court order.

The mother moved to enforce the order a month after it was entered.  She alleged the uncle did not make the child available to her during her time.  She sought criminal and civil contempt, additional periods of possession, and attorney’s fees.  She also asked the court to clarify the original order if it found any part of it was insufficiently specific to be enforced through contempt.

 

The trial court found the terms of the order were not sufficiently specific to be enforced by contempt.  The court added language requiring the uncle provide notice of the drug test “at a reasonable time” and give the mother 24 hours notice to comply. The court found the uncle in violation of the original order by failing to give the child to the mother on two occasions.  It also ordered him to pay $1,500 in attorney’s fees to the mother’s attorney.

The uncle moved for review of the attorney’s fees.  The judge confirmed the award but also specified it would be enforceable as both a debt and as child support.  The uncle appealed, arguing the court had not merely clarified the order but had made substantive changes to the terms.

A court may clarify a previous custody order, but may not generally modify a previous order unless certain conditions are met and the modification is in the child’s best interest.  A clarification cannot make substantive changes to the order.  Although a clarification can correct an error in the original judgment, it can only correct a clerical error, not a judicial error.  The clarification, therefore, cannot correct an error resulting from judicial reasoning.

The appeals court found the original order’s “possession and access terms were specific, non-ambiguous, and could be enforced by contempt.” The order allowed the uncle to request a drug test once a month.  It provided the method of the request and limited the times when he could request it.  The appeals court found the trial court had used judicial reasoning to add the requirement that the uncle send the request within reasonable time that gives the mother 24 hours notice.  The appeals court found the original text was unambiguous so the trial court did not have the authority to clarify.

The original order provided that a level of marijuana higher than 3.66 picograms would be deemed positive, but the modification added language limiting this provision to ingested marijuana. The appeals court found this was a substantive change.  The original order was unambiguous.

The appeals court struck the language purporting to clarify the previous order.

The uncle also argued there was no evidence that the enforcement of the order was necessary for the child’s physical or emotional safety or welfare, which would be required to enforce the attorneys fee award as child support.  The trial court did not find the uncle in contempt or enter a finding that enforcement of the original order was necessary to ensure the child’s health or welfare.  There was no evidence supporting characterizing the fee award as child support so the appeals court struck that portion of the order.

This case serves as a reminder that a Texas trial court’s ability to change a custody order is limited.  The court may not clarify an order by making a substantive change to its provisions, even if those provisions seem unfair.  An experienced Texas custody attorney can help you seek or oppose a clarification or modification of a custody order.  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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Attachment and the Psychoanalytic School of Psychology

Court-Involved Clinical Psychology and Child Custody Decision-Making

Targeted parents are human beings.  They are people.  Psychologists are not allowed to hurt people.  Anyone.  Targeted parents qualify.

Psychologists are not allowed to hurt people.  We’re not allowed to do anything that would hurt the targeted parent.

Making professional recommendations that would limit the time that targeted parents share with their children to anything less than the maximum time possible, hurts the targeted parent.  It makes them sad, very sad, it takes away from them a fundamental self-identity role of mother or father, it takes from them life experiences with their ever-growing child that can never be recaptured or recovered, the child is only five once, only ten once, only fifteen once, never again.  Lost time is lost, and this hurts the targeted parent.

Psychologists are not allowed to hurt people, not even targeted parents.  They are people.

What is the maximum amount of time?  Following divorce, that would be 50-50% shared custody visitation.  We learn about sharing in preschool.  We take turns.  It’s a fundamental principle of social cooperation.  We share.  We take turns.

Following a divorce, that would a be 50-50% shared time.  A psychologist cannot advocate for anything other than that, because anything other than that will hurt one parent or the other, will make one or the other sad, very sad, and will take from them a fundamental life role, an important experience of self-identity, their role and experience of being a mother or father.  That would hurt them.  Psychologists are not allowed to hurt people.

But sometimes situations and limitations imposed by external factors make a shared 50-50% custody visitation schedule impractical or impossible.  What do psychologists do then?  We work to limit the harm.  We don’t make decisions as to who is harmed.

This is the APA ethics code on Avoiding Harm to the client, Standard 3.04a:

3.04 Avoiding Harm
(a) Psychologists take reasonable steps to avoid harming their clients/patients, students, supervisees, research participants, organizational clients, and others with whom they work, and to minimize harm where it is foreseeable and unavoidable.

We’re not allowed to harm people, and if harm is unavoidable, we “minimize harm where it is forseeable and unavoidable.”

Sometimes the child’s need to attend a single school requires that the child has a school-week residence with one or the other parent.  This will hurt the less involved parent, it will make them sad and damage their life experience as a mother or father.  But it is unavoidable.  The child needs to be at a single school location during the school week, the child needs a single school residence.

If both parents can live close enough to each other that they can share custody visitation time with the child and the child can also have a single school, then this is the best option, then we share, we take turns, and a 50-50% shared visitation schedule is the best in “minimizing harm” caused by the divorce itself – the separation of the family structure.

But if that’s not possible, then an every-other-weekend to one parent and primary school-week custody visitation with the other parent becomes the next available option for a fair distribution of time with a minimization of the unavoidable harm to one parent or the other from divided custody time.

Giving one parent only every-other-weekend is a severe restriction on this parents time, and is less than the maximum possible.  The maximum possible would be every weekend.  If the limitation is the child’s need for a single school so that one parent is the school-week parent, then the more limited-time parent could be the weekend-parent, this would be the best outcome for the more-limited, and therefore harmed, parent.

But then the school-week parent is harmed in another way.  The school week is task oriented with homework and after-school activities, and coincides with the work-week schedule and stresses.  Weekends are a time of relaxing and quality bonding.  If we take all of these weekend times of bonding relaxation away from the school-week parent, this harms them because it harms the quality of their relationship with the child.  One parent, the weekend parent, would receive all the quality bonding time of relaxation, and the other parent would receive all the task-oriented time of schoolwork and activities.

We want to balance the quality bonding time of weekends, so we assign an every-other-weekend schedule for visitation.  But then this is less than the maximum time available for the limited-time parent, and an every-other-weekend schedules imposes a two-week absence between only brief visitation times.  We would like to provide additional time to this limited-time parent if possible, to maintain a consistent presence of contact and involvement.

Because the more infrequent time parent is being harmed, and because of the long period of absence between weekend visitations, we try to add some additional consistent time for this parent.   Typically this is through additional weekday time, often a Wednesday or Thursday dinner with the child every week, sometimes for a block of time, sometimes overnight if the infrequent time parent is able to maintain the child’s single school attendance the following day.

Psychologists, however, do not decide which parent is the school-week parent and which parent is the every-other-weekend parent.  That is not our role.  Ever.  It is not the role of a psychologist to decide who is harmed, who is sacrificed.  The second clause of Standard 3.04 says we “minimize harm” – it does not direct us to decide who is harmed.  The recommendations provided above regarding shared 50-50% custody visitation time, and an alternative every-other-weekend custody visitation schedule when the harm is “unavoidable,” meets this standard to “minimize harm where it is forseeable and unavoidable.”

We do not decide on who is harmed.

But what about the greater good?   If the child would benefit from more time with one parent than the other?

Two responses.  First, psychologists do not judge people to decide who deserves to have children and who doesn’t.  That is NOT our role.  Parents have the right to parent according to their cultural values, their personal values, and their religious values.  Psychologists should NOT assume a professional role of judging which parent is the “better parent” based on criteria that cannot be supported.  If there is no child abuse, then parents have the right to be parents.  If there is child abuse and child protection factors are a consideration, then there should be a corresponding DSM-5 diagnosis of child abuse.

Psychologists should not be in a role of judging who “deserves” to be a parent and who doesn’t.

Second, the “greater good” argument for causing harm is specifically prohibited by the APA ethics code.  Standard 3.04b prohibits psychologists from consulting for or collaborating with torture practices (enhanced interrogation) of terrorists.  Even terrorists, where there is a greater-good argument about the information they possess, psychologists are not allowed to harm terrorists.  The greater-good argument for causing harm is specifically prohibited.

Psychologists are not allowed to harm people.

Targeted parents are people.  We are not allowed to harm them.

The argument made by the allied parent is that the targeted parent “deserves” to be harmed, because they are a “bad parent,” and the allied  parent wants psychology and the court to judge the targeted parent, and to punish the targeted parent because they are a “bad parent” by limiting or restricting the parent’s time with the child.

It is not the professional role of psychologists to judge people to decide if the person “deserves” to suffer and be punished for some flaw or frailty.  That is never the professional role of psychologists.  If the court wishes to take up the matter of whether one parent deserves to be punished for bad parenting, that is a legal consideration of the court.  Psychologists are never in the role of judging someone’s frailty or vulnerabilities to decide if they should be a parent, or to decide if they need to be punished for their frailty.

Psychologists do not harm people.  Targeted parents are people.

If there are frailties, we fix them.  Parents have the right to parent according to their cultural values, their personal values, and their religious values.

Everyone can recognize how we do not override cultural or religious values in parenting rights, I want to highlight personal values.  Society has no authority to override parents in their right to parent according to their personal value system.  This provides a broad latitude to parents regarding their decisions as parents.  As long as there is no child abuse (documented with a corresponding DSM-5 diagnosis of child abuse), then parents have the human right to parent according to their personal values.

Personal values are embedded in cultural values, personal values are embedded in spiritual and religious belief systems.  Personal values are respected by professional psychology.  Psychologists do no judge who is the “better parent” who “deserves” to have a larger share of time with the child, psychologists do not judge who is a “bad parent” who deserves to be less involved with the child.

If there is no child abuse, then the rights of parents to parent according to their cultural values, their personal values, and their religious values is their human right and is respected.

If there is child abuse, then this needs to be documented by a corresponding DSM-5 diagnosis of child abuse, V995.54 Child Physical Abuse, V995.53 Child Sexual Abuse, V995.52 Child Neglect, V995.51 Child Psychological Abuse.  If there is no DSM-5 diagnosis of child abuse, then there is no justification for restricting a parent’s time and involvement with their child.

Custody Visitation Schedules

The practice of child custody evaluation is a professional abomination, psychologists should never be in the role of judging parents and parceling out pain and suffering based on some ill-formed and arbitrary criteria.

Psychologists do not harm people.  Anyone.  Ever.

Targeted parents are people.  They qualify.

Child custody decision-making following divorce is not complicated.  A shared 50-50% recommendation would be the default option in all cases because in minimizes harm to each parent created by the separated family structure and need to divide visitation time with the child.  We share, we take turns.  This is a foundational principle of social cooperation taught to all of us in preschool.  It applies in adult social cooperation as well.

We share.  We take turns.

If this is not possible, and harm must be done to one or the other parent by limiting their time and involvement with their child, then an every-other-weekend (and an evening during the week) custody visitation schedule becomes the second option.

This is not complicated.  That is the recommendation of professional psychology in all cases.  Professional psychology is not in the role of judging parents and parceling out pain based on who “deserves” to suffer because they are a “bad parent” (bad spouse).

Geographic Separation

In some cases, parents are geographically separated by long distances.  In these cases, neither the 50-50% shared visitation schedule nor the every-other-weekend visitation schedule is possible.  Additional harm is unavoidable.

In geographically separated families, the child’s need for a single school location requires that one parent be designated as the school-year parent, and the other parent will receive visitation time during the child’s school vacations.  As with the every-other-weekend schedule, the limited-time parent should receive all of the vacation time to maximize their available time with the child, but then this would harm the school-year parent by taking from them all of their relaxed bonding time with the child.

Similar to weekends, holiday and vacation bonding time is typically divided equally in geographically separated families, although sometimes additional time considerations are granted to the limited-time parent during summer vacations, and a strong argument can be made in favor of this compensation summer-bump to the limited-time parent’s custody visitation time with the child.

Move Aways

When a separated family structure occurs because of the parents’ divorce, the geographic location is established and the rights of each parent-spouse are established.  No move aways are permissible except in the most exceptional of circumstances.  Each parent’s individual rights are equally valid.  To take the child away from either parent would significantly harm the limited-time parent.

Psychologists are not allowed to harm people.  Any people.  Deciding if someone should be harmed is not the professional role of psychologists.  Once the home geographic location is established, if one of the spouse-parents wants or needs to move away from that region, for whatever reason, that is their choice.  Their choice, however, should not impinge on the liberties of the other spouse-and-parent, which include the right to be an active and involved parent with their child.

Life circumstances can be difficult and can impose difficult choices.  Personal life situations and choices, however, are not the responsibility of the ex-spouse following divorce, and the rights of the ex-spouse and parent to be an active and involved parent are not made void by the wants and needs of the other spouse-and-parent.

The court may decide that special extenuating circumstances exist that warrant allowing the move away of one parent with the child.  In these circumstances, the geographically separated custody visitation schedule of a school-year parent and a vacation-primacy parent becomes the recommended custody visitation schedule.

All Children – All Families

These recommended custody visitation schedules and the sequencing of their application applies to all children and all families.

Altering these schedules for child protection factors should be accompanied by a DSM-5 diagnosis of child abuse.

Psychologists are not allowed to harm people.  Anyone.  Targeted parents are people, they qualify.  Psychologists are not allowed to do anything that harms the targeted parent…. Standard 3.04 of the APA ethics code, Avoiding Harm.

Craig Childress, Psy.D.
Clinical Psychologist, PSY 18857

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Child custody essentials for Texas families

Child custody essentials for Texas families

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

Whether you are a parent going through a
divorce or a
child custody case in Texas, you need to be familiar with how a court will view your
case if you and your child’s other parent cannot settle in mediation.
The fact is that as long as you are not in a courtroom, what you and your
opposing party can agree to is pretty much how your case will be decided.
Meaning: if you all can settle on an arrangement for child custody a court
is likely to honor it because there is a presumption under the law that
as your child’s parents, you both have his or her best interests in mind.

On the other hand, if you cannot settle your case then it will head to
a courtroom where all of the power as far as decision making is taken
from you and your child’s other parent and placed in the hands of
a family court judge. This judge, while well meaning and bound to make
decisions based on the law in Texas, does not know you, your child or
the opposing party in your case. He or she will have a limited amount
of time to learn the facts and circumstances of your case and then apply
the law in a fair manner.

Best interests of your child

It is presumed that naming you and your child’s other parent as
joint managing conservators is in the best interests of your child. This is the starting point that
your judge will being their analysis from when it comes to awarding a
particular schedule of possession. However, once evidence begins to be
presented in a trial a judge can make different decisions regarding what
is actually in your child’s best interests.

What sort of evaluation does a judge make as to what is (or is not) in
your child’s best interests? First of all, the judge would likely
want to do a review of the home environments of both you and your child’s
other parent. This often times meaning have an amicus attorney or attorney
ad litem conduct a review of the home environments and to compile a report
for the judge so that he or she can make a more informed decision.

Next, what your strong-suits when it comes to parenting and what are your
weaknesses? What are those of your child’s other parent? Do you
and your child’s other parent work well when it comes to co-parenting
or are you unable to stand the sight of the other? Your jobs and your
financial stability are also considered, although to a lesser extent when
yours and that of the other parent are similar.

What a court will look to when making its ultimate determination as to
child custody

Judges in Texas are empowered by the Texas Family Code to use their judgment
to a great extent when making this decision. The law will guide him or
her but in large part your judge’s own notions and opinions on the
subject will be key.

I will note that if your child is over the age of 12 and you file a motion
to have him or her speak to the judge about their own wishes as to where
they want to reside primarily a judge must consider their opinion. How
much the judge considers it is left up to that judge.

The current and future needs of your child (emotional, educational, financial,
etc.) are considered along with your and your opposing party’s abilities
to provide for your child’s needs. How stable is the home that you
are living in and what do your habits and past actions in the realm of
parenting indicate as far as your ability to provide the sort of environment
that is conducive to raising a successful and happy child in today’s world.

There are other factors that will present themselves in your trial, but
since they vary significant on a case to case basis I won’t attempt
to discuss them here. Suffice it to say that a judge will consider a great
number of factors when determining custody and conservatorship issues.

Sole custody of your child

A judge can award you or your child’s other parent a
sole managing conservatorship. This means that your child would live primarily with that parent. This
is how it would work under a joint managing conservatorship as well, but
the major difference is that the sole managing conservator would be in
the driver’s seat as far as making decisions for your child in regard
to important subjects like education and health care matters.

Joint custody of your child

Joint custody is much preferred by judges and, as we just finished discussing,
is the presumptive choice for judges to order in a child custody or divorce
case. Not only does it encourage parents to both have a long lasting and
committed relationship with their child but it also allows parents to
split the responsibility of sharing rights and duties as to that child.
I think in my years of practicing family law that this is most underrated
aspect of parenting. Most parents focus on time and de-emphasize the rights
and duties aspects of parenting. Ask any parent who feels left out of
the conversation when it comes to making important decisions and that
person will tell you how hard it is to be an effective parent without
this right.

Drawing a distinction between rights/duties and time with your child

As a parent there are really two, main aspects to your ability to parent
your child. The first is being able to spend time with your child and
have him or her in your possession. Quality time is what most people like
to call this. Evenings spent watching a movie in the living room, early
morning breakfasts enjoying a sunrise together or playing catch in the
backyard. These are familiar images for a lot of families and are what
I think most clients in a family law case think about when considering
what it means to be a parent and what is being fought for and over in
a family law case.

I will again emphasize, however, just how important it is to have the legal
right to make decisions on behalf of your child. Where your child attends
school, what kind of religion he or she practices, the sort of medical
care he or she receives and many other decisions are just the sort of
life changing issues that I am talking about when I talk about rights
and duties of parenting.

While you or I may commonly refer to this as legal custody of your child
it is actually called conservatorship in the Texas Family Code. Ironically
enough, despite how frequently it is used by the general public and attorneys
alike, the word custody does not actually appear in the Texas Family Code
even one time.

Using the parenting class as an opportunity to learn more about your child
and your family

Most Texas counties will require you to go through a mandatory course on
parenting. It may seem a little demeaning for a court to demand that you
attend a course on parenting after you have been a parent for years. I
understand this may seem like a waste of your time, but I have had more
than a few parents tell me that it really did open their eyes on how to
resolve conflict, work with the other parent after a family law case and
how to maximize the time that you do have with your child.

More on the subject of child custody will be posted in tomorrow’s blog

If you are interested in the information contained in today’s blog
post then you will want to stick around until tomorrow when we conclude
this mini-series of
child custody issues in Texas family law cases. If you have any questions in the meantime
I suggest that you contact the
Law Office of Bryan Fagan, PLLC. One of our licensed family law attorneys can meet with you six days a
week for a free of charge consultation. We can answer your questions and
address your concerns in a comfortable and pressure-free environment.

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



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Court May Order Battering Intervention and Prevention Program in Texas Custody Case

Court May Order Battering Intervention and Prevention Program in Texas Custody Case

Originally published by Robert Epstein.

By

In Texas custody cases, the best interests of the child are the primary consideration, and the court uses broad discretion in determining them.  If the court finds it is in the child’s best interest to do so, it may limit a parent’s visitation with the child or increase a parent’s time with the child, but only if certain conditions are met.  A father recently challenged a court’s order that he would have to complete a Battering Intervention and Prevention Program before the possession schedule could change.

The parents lived together with the child until the mother moved out of the home.  The father filed suit, asking to be named joint-managing conservator and to have the exclusive right to designate the child’s primary residence.  A jury found the parents should be joint-managing conservators. Although the jury gave the father the exclusive right to designate residence, it placed a geographic restriction on that right.

When the court issued the order, it left the temporary orders for possession in place until the father finished a Battering Intervention and Prevention Program. The mother was granted the exclusive right to consent to invasive medical procedures, make decisions regarding the child’s education, and possess the child’s passport.  The father requested findings of fact and conclusions of law, then appealed.
Continue reading →

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



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4th of July without your children

Life, Liberty and Shared Custody: Surviving 4th of July Without Your Children

4th of July without your children

 

Are you in too much of a funk to give a second thought to fireworks and hotdogs? Holidays…the 4th of July, Thanksgiving and Christmas can be difficult to celebrate if you are without your children. Let’s face it; watching other children in awe of the magic of fireworks isn’t easy when your children are spending the day with their Dad. Your “funk” is understandable!

Surviving 4th of July Without Your Children

How do you get yourself out of a funk?

One thing that has always worked for me is to let go of the guilt I feel over feeling less than celebratory. There is nothing wrong with missing your children, especially if your tradition has been to spend special holidays with them.

It has been my experience that feeling bad about feeling bad only made me feel worse. It was like piling one more negative emotion to deal with on top of everything else. If you are divorced and feeling alone and funked you are experiencing normal feelings. Accept that it is fine to feel how you’re feeling…berating yourself over valid feelings doesn’t do anything except make you feel worse.

You need to also give yourself permission to enjoy the holiday regardless of what kind of adversity you have or, are experiencing. Feeling lonely and isolated doesn’t have to become a foregone conclusion. Just because you aren’t all red, white and blue is no reason to immerse yourself in maudlin activities while others are out and about enjoying their 4th of July.

Here are a few suggestions that will hopefully help alleviate some stress and help you survive the 4th of July without your children.

1. Don’t participate in any 4th of July activities you feel obligated to participate in. If you aren’t in the mood to be around nosy relatives, then make a different choice. Listening to Grandma’s complaints or having to answer your cousin’s questions about your divorce can be nerve-wracking. Be kind to your nerves and yourself!

2. Friends who supported you through your divorce, who know what you’ve been through will also get you through a lonely holiday. Spend time with people who are invested in helping you get the most out of life…who better than close friends who don’t expect too much from you.

3. If you find yourself alone, remind yourself that you have a right to a good time. I spent Christmas Eve and Christmas Day alone one year. I wasn’t looking forward to it but now that I look back I realize that, although alone it was one darn good time. Whether it be the 4th of July or any post-divorce holiday alone, treat yourself to something special.

A bubble bath, a day of romantic comedies, a bit of wine and a few chocolates. Maybe even a sparkler or two! Pamper yourself on your day alone and be rested and relaxed for when the kids get home.

Stress and negative feelings during a post-divorce holiday can be difficult, but they don’t have to be debilitating. Making time to relax and do the things you enjoy is essential to keeping a balance. When facing a holiday alone, remind yourself that you have as much right to a good time as anyone else so, relax and enjoy the occasion to the best of your ability.

The post Life, Liberty and Shared Custody: Surviving 4th of July Without Your Children appeared first on Divorced Moms.

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Emergency Child Custody in North Carolina

Emergency Child Custody in North Carolina

Even in situations where you may not be able to get emergency child custody in North Carolina, the standard custody process is available to ask the court to determine a custody matter.

The post Emergency Child Custody in North Carolina appeared first on Divorce Magazine.

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child custody & vacation

Child Custody & Vacation: How Can Travel Plans Affect Your Custody Agreement?

child custody & vacation

 

Traveling as a family isn’t very complicated. As a duo, you were able to decide on the best location, dates, budget, meals, and packing strategy. In a divorce, traveling with children is a whole new ballgame. Suddenly your plans require extra steps and the law can get involved.

Traveling plans affect custody agreements in a variety of ways. Depending on traveling plans, custody agreements are subject to modification. If you have concerns about your custody agreement and are in search of a divorce lawyer, please refer to your local directory and get the answers you need regarding child custody.

Local lawyers will fight for you and your child’s best interest and will provide you with unique and individualized attention. While there are little-to-no ways of avoiding traveling issues between you and your ex, there are steps that can be taken to ease the process.

Please consider the following step by step maneuvers when dealing with child custody and vacation:

Have a Written Agreement

Needless to say, upon divorce there must be a written document in place that addresses child custody arrangements. There are no defined rules for custody and you and your partner are allowed to modify pre-established agreements. Within this agreement, should be a section designated to special occasion custody circumstances. When undergoing a divorce, it is critical to have in writing, under what circumstances one parent is allowed to travel with the child.

Can the child and parent leave the country? Will they be unsupervised? Is the other parent allowed contact with the child during the vacation? All these concerns and more must be addressed in writing to avoid disputes and serious legal complications.

What is a Controlling Document?

Specific conditions related to travel should be included in a controlling document. There are basic provisions that should be clarified within the document, such as whether the parent must be notified if the parent is taking the child out-of-state.

More specific issues should be clarified as well. If one parent has pre-decided custody for a certain holiday, but the other parent wishes to take the child on vacation during the same holiday, the protocol for those circumstances must be made clear.

Who is allowed to travel with the child and parent and who is not? This should also be included in the document. Who will provide proper travel gear for the children and who will store this equipment? Is the child allowed to miss school days for vacation time? All of which must be addressed in advance. An important issue that must be decided upon divorce is which parent will store travel papers and official documents and how soon must they provide the other parent with that information.

Travel Rules

If your ex successfully takes the children on vacation and then begins violating your previous agreements, you are allowed to sue them for breach of contract. If your ex does not allow you to speak to the children on vacation, you can file a motion with the court and have your former spouse held in contempt of a court order. This notifies your ex that if they continue to breach the agreement, you will take legal action – just because they are not physically reachable, they will face consequences.

Don’t Wait, Contact A Divorce Lawyer Who Can Provide Assistance

There is no way to completely prepare for every possible scenario that may occur upon traveling. The more issues you and your ex are able to address and reach consensus on prior, the better. If you are in search of a qualified divorce lawyer and want legal guidance on custody issues, contact a legal team to schedule a meeting with a passionate professional today and ease your custody concerns.

The post Child Custody & Vacation: How Can Travel Plans Affect Your Custody Agreement? appeared first on Divorced Moms.

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