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mothers have an advantage in custody disputes

Do Mothers Have an Advantage in Custody Disputes?

mothers have an advantage in custody disputes

 

If you are going through a divorce, a primary concern is often your children and your child custody arrangements. It’s difficult for any parent to contemplate not having their children living with them all of the time, but it can be even more difficult for mothers who have a close bond with their children.

If you and your husband cannot come to custody terms that you both can sign off on, the court will need to decide the matter for you. While many people think that mothers have a natural advantage in such disputes, the truth is far more complicated. Understanding the basics related to child custody can help you navigate the process while standing up for your own parental rights.

Legal Custody

Custody is divided into two major concerns that include physical custody (related to with whom the children reside at any given time) and legal custody. It’s important to recognize that in the vast majority of divorces, both parents share legal custody, which refers to a parent’s rights to make important decisions on behalf of their children. These decisions include:

  • Matters related to your children’s health and well-being, such as medical care
  • Matters related to your children’s education
  • Matters related to your children’s religious upbringing

These are fundamental issues that shape your children’s lives, and it’s very likely that you and your divorced spouse will continue to make these important decisions together, although one parent is sometimes given tie-breaking authority.

Physical Custody

Physical custody relates to with whom your children reside primarily and to their visitation schedule with the other parent. While many people believe that mothers have an advantage when it comes to physical custody, this really isn’t an accurate assessment in many cases.

Do Mothers Have an Advantage in Custody Disputes?

The Court’s Stance

If you and your divorcing spouse cannot come to mutually acceptable terms regarding your children’s custody arrangements, the court will intervene and make a determination of how you will split custody rights.

The court will always favor what is in the best interest of your children, but this is obviously open to interpretation, and it’s important to remember that the court has considerable discretion in the matter. You obviously know your children in a way that the judge never can, and you know what’s best for them.

Courts often favor the status quo when making child custody decisions. In other words, if the mother has been the primary caregiver and she and the children are living in the family home while the case is pending, the judge may be hesitant to upset the balance and may be more inclined to award the mother primary custody.

This is generally more a function of how things are commonly arranged than it is a function of favoring the mother or of the mother having an advantage in the matter.

The Considerations at Hand

In determining child custody arrangements, the court is guided by the children’s best interests, but in the process, it takes a wide range of variables into consideration, including:

  • The emotional connections between each parent and the children
  • Each parent’s ability to provide the children with a loving home and a healthy life
  • Any criminal history
  • Any history of domestic abuse – either physical, emotional, or sexual
  • Any substance abuse issues
  • Any pertinent parental considerations that could affect the decision, such as age or disability
  • The location of each parent’s residence (who lives closer to the children’s school, for example)

None of these issues are gender-specific and, as such, the court’s decision cannot favor the mother. Many mothers, however, are already providing primary custodial care, and courts are not fond of dramatically disrupting children’s lives when they’re already going through the emotional challenge of divorce. After all, divorce is hard on everyone, but children are especially vulnerable.

Your Children’s Voices

Many parents wonder if their children’s preferences will guide – or should guide – the court’s custody decisions. The fact is that many judges will speak to your children privately (especially older children) and will take their preferences into careful consideration, but the decision is simply not up to your children.

The court is making determinations related to your children’s custody exactly because they are children who need custodial care. When your children are adults, they’ll make their own important decisions, but for now, those decisions must be made for them. Your children’s voices, nevertheless, may help guide the court’s ruling.

Reaching a Resolution

If you’re going through a divorce, emotions are inevitably running high. The stress and heartache of divorce leave many couples unable to reach mutually agreeable terms on many important issues. Both of you, however, naturally put your children first, and if you can find a way to hammer out custody arrangements that you can both live with, the court and its considerable discretion won’t need to be involved in the process.

Reaching a compromise with your children’s father can come in many forms. If you aren’t able to work together personally (which isn’t uncommon), your attorneys can attempt to negotiate an arrangement, and you can also address the issue via mediation – with the legal guidance of your respective divorce attorneys.

The post Do Mothers Have an Advantage in Custody Disputes? appeared first on Divorced Moms.

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Child Custody Attorney

Child Custody in Texas: Who Can Claim a Child on Their Taxes?

Originally published by stark.

Child Custody AttorneyFollowing a divorce or separation, parents need to determine who will claim their children on their taxes. As the Internal Revenue Service (IRS) explains, only one parent can claim a child on their taxes. If both parents try to claim a child, it will cause problems. In this article, our Texas child custody lawyers explain the most important things separated parents need to know about the rules for who can claim a child.

The Parent Who Has Primary Physical Custody Has the Right to Claim the Child

Under IRS rules, the parent who has primary custody of a child has the first right to claim that child on their tax return. For example, if your child spends 75 percent of their time with you and 25 percent of their time with the other parent, then you have the right to claim your child on your taxes. When primary custody is clear, there is little dispute over who has the right to claim the child.

Tiebreaker: Parent with Higher Income Should Claim the Child

In some cases, parents have a genuine 50-50 custody arrangement in place. The IRS has developed a basic tiebreaker rule to deal with this: The parent who has a higher income for the tax year in question should claim the child. Often, the parent with the higher income will gain a larger tax benefit from claiming a child. This can free up some extra money in tax savings, which can be used to support the family as a whole.                                                                

It May Be Financially Advantageous to Allow the Non-Custodial Parent to Claim a Child

To be clear, a parent with primary custody does not necessarily have to claim their child on their taxes. In some cases, it will be advantageous for both parties to have the non-custodial parent claim the kids. For example, if the custodial parent has relatively little taxable income — at least in comparison to the non-custodial parent — they may not be able to fully utilize the benefits of child tax deduction and child tax credits.

In this situation, both parents can attach Form 8332 to their tax return. By doing so, they will be able to seamlessly allow the non-custodial parent to claim the child. Transferring the right to claim a child will sometimes free up some additional tax savings — which can be split between the parties or used to directly support the child. You do not want to leave money on the table: Make sure you and your former spouse/partner are using tax child deductions/credits in the most effective manner.

Get Help from Our Texas Family Lawyers Today

At Orsinger, Nelson, Downing and Anderson, LLP, our Texas family law attorneys are committed to protecting the financial interests of our clients. Our lawyers are consistently ranked among the best divorce and custody attorneys in the state. To arrange a strictly confidential initial consultation, please contact our legal team at (214) 273-2400. With offices in Dallas, Frisco, Fort Worth, and San Antonio, our family law practice serves clients throughout Texas.

The post Child Custody in Texas: Who Can Claim a Child on Their Taxes? appeared first on ONDA Family Law.

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

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Custody Issues that Can Arise during the Holidays

3 Custody Issues That Can Arise During the Holidays

Custody Issues that Can Arise during the Holidays

 

For many people, the holiday season is a time to relax, spend time with friends and family, and engage in various religious or secular traditions. If you are a mother that shares custody of her children with their father, however, it is important that you consider the fact that the holidays can present a virtual minefield of custody issues that can be difficult to navigate.

Fortunately, by recognizing these issues and planning ahead, you can usually avoid them and have a holiday season free from any conflicts or fights related to child custody and parenting time.

Here are some of the most common issues that mothers who share custody should consider as the holidays approach.

3 Custody Issues that Can Arise During the Holidays

1. Not Having a Plan

One of the worst things you can do as the holiday’s approach is failing to make a plan as to how the kids will spend them. This is a recipe for disaster and a ruined holiday season. If your current custody order does not specify how custody is to be divided over the holidays, you should address the matter immediately, either informally or by requesting a modification to the order.

Some of your options include assigning fixed holidays to each parent (for example, you get Thanksgiving and their dad gets Christmas), alternating holidays, or splitting a holiday in half. The arrangement that works best for you will depend largely on the specifics of your living arrangements and the things most important to you.

2. Traveling Out of State

If you are considering traveling out of state this holiday season to see friends or family, it’s critical that you ensure that you check the terms of your custody arrangement prior to making firm plans. In some cases, your child custody arrangement may require you to obtain permission from your kids’ father in order to travel out of state – but it also may not.

Even if your child custody order does not require you to obtain their father’s permission to travel out of state, it’s not a bad idea to discuss the matter with him anyhow. First of all, it’s a show of good faith that you are willing to engage in open communication and co-parenting; secondly, it can work in your favor should a dispute arise in the future.

3. Unusual Custody Schedules During Winter Break

Unfortunately, an existing holiday custody schedule does not always make things go smoothly during this often hectic time of year. First of all, a departure from normal schedules can be hard on children, so it’s important to keep them aware of what’s going on and why. Furthermore, there are often logistical issues regarding holiday custody schedules.

For example, if your arrangements involve your children spending more consecutive nights with their father than they normally do, make sure that you pack enough clothes and discuss any issues that may arise with their other parent. Similarly, your normal schedule for dropping off or picking up the kids may not work because of holiday commitments, so make sure that these potential problems are discussed ahead of time.

Avoiding Custody Issues Now and in the Future

Fortunately, these and other issues related to child custody can usually be avoided with some simple planning and communication. If you and your child’s father have an amicable relationship and are able to talk, it’s not a bad idea to try and work out a holiday custody schedule yourself. In the event that your relationship is not so good, it may be necessary to petition the court to modify your custody schedule and assign holidays to each of you. In either case, it’s highly advisable to discuss your custody goals with a family law attorney in your jurisdiction.

Making New Traditions

One regular concern for mothers – especially those who are newly divorced – is how to maintain the family’s regular traditions for the holidays. The reality is that you might not be able to keep all of the same traditions, but the good news is that you can make new traditions with your children.

While you might normally have a special breakfast you make for Christmas morning after your kid’s open presents, you might be switching off Christmas morning with your ex-spouse. This means that you might miss the morning tradition, but maybe you can make a new special-breakfast-for dinner tradition for Christmas Eve.

That being said, if you have a special tradition with your family that your ex-spouse does not have with his family, you might want to negotiate to ensure you can continue that tradition since it means more to you.

Find Support with Family and Friends

No matter how well you plan ahead for custody issues, the holidays can still be difficult when you are not always with your children. It can be difficult to adjust, so you want to make sure that you have the support you need emotionally. When you do this, you can ensure you are in the best possible position to celebrate the holidays when your children are with you. If you need to adjust custody for the future, never hesitate to seek legal support from a trusted attorney, as well.

The post 3 Custody Issues That Can Arise During the Holidays appeared first on Divorced Moms.

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Do Stepparents Have Child Custody Rights or Child Visitation Rights After a Texas Divorce?

Do Stepparents Have Child Custody Rights or Child Visitation Rights After a Texas Divorce?

Originally published by stark.

Do Stepparents Have Child Custody Rights or Child Visitation Rights After a Texas Divorce? 1Stepparents play a very important role in a child’s life. According to the most recent report from The Step Family Foundation, over 50 percent of U.S. families are recoupled. As blended families are becoming more and more common, this raises an important question: Do stepparents have any custody or visitation rights to their stepchildren after a divorce? The answer: “sometimes”—but those rights are limited and they are not automatic. Here, our Dallas child custody attorneys provide an overview of the key things that you need to know about step-parent rights after a divorce.

Texas Law: Step-Parents are ‘Interested Third Parties’

 Stepparents are not granted any automatic child custody or child visitation rights. Unlike a child’s biological parents, there is no assumption of parental rights. Instead, state law views stepparents as being “interested third parties.” Practically speaking, this means that a stepparent’s custody or visitation rights are similar to a child’s aunt, uncle, or another semi-close relative.

To be clear, stepparents have the right to petition for visitation with their stepchildren after a divorce. While it is often difficult to get court-ordered visitation rights over the objections of the child’s parent(s), it is legally possible. Should a dispute arise over step-parent visitation/custody, Texas courts will resolve issues under the state’s ‘best interests of the child’ standard (Texas Family Code § 153.002).

 How Our Child Custody Attorneys Can Help

 Stepparent custody and visitation cases are especially complicated. At Orsinger, Nelson, Downing and Anderson, LLP, we have the unique skills, experience, and training needed to help guide parents and stepparents through the legal process. With more than 100,000 attorneys practicing in Texas, there is no other law firm that has as many Top 100 Super Lawyers as we do. When you reach out to our firm, you will get a top-rated Texas child custody lawyer who will:

  • Conduct a confidential, in-depth review of your stepparent custody/visitation case;
  • Listen to your story, answer your questions, and devise a sensible strategy;
  • Look for mutually agreeable solutions that resolve conflict at the lowest possible level; and
  • Take whatever legal action is necessary to protect your rights and your family.

We know that there are no one-size-fits-all solutions in family law—especially when children are involved. Our custody & visitation lawyers provide each and every parent with the fully personalized legal assistance that they deserve. Our goal is to help you find an effective and low conflict resolution that works for you and your family. At the same time, we are trial-tested family law litigators. Our lawyers are always prepared to take aggressive action to protect your parental rights.

 Discuss Your Case with Our Texas Child Custody Lawyers Today

At Orsinger, Nelson, Downing and Anderson, LLP, our compassionate Texas child custody lawyers are experienced, effective advocates for parents. If you have any questions about stepparent rights, we can help. To schedule a strictly confidential initial consultation, please call us at (214) 273-2400 or contact us directly online. From our offices in Dallas, Fort Worth, and Frisco, we represent parents throughout North Texas.

The post Do Stepparents Have Child Custody Rights or Child Visitation Rights After a Texas Divorce? appeared first on ONDA Family Law.

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

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Mediation and its impact on your Texas Child Custody Case

Mediation and its impact on your Texas Child Custody Case

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

It has become a trend in recent years for courts in southeast Texas to mandate that parties must attend at least one session of mediation (and likely more) before they ever are able to have their case presented in front of a judge during a trial. As far as alternatives to having to go the “distance” in a contested child custody case, mediation is at the top of the list as far as places to go when you need a resolution to your case.

The benefits of meditation are many. You and your opposing party are able to take an active and participatory role in the process that will determine the outcome of your case. This is the case to an extent in a trial, but keep in mind you are only able to present evidence once you get in front of a judge. It is the judge who will be making the final decision in your trial.

Domestic violence and mediation in Texas

Child custody cases that involve domestic violence can be especially troublesome when taken in the context of mediation. For one, if you are the victim of acts of domestic violence as perpetrated upon you by the opposing party in your child custody case that you may not be able to negotiate to the fullest extent possible. This is often times the case because you are not only fearful of your own well-being during mediation but can also be “under the thumb” of the opposing party due to their role in supporting you economically. If you haven’t worked in a decade or more, how freely can you negotiate in mediation knowing that your well-being is tied up in the other person paying your bills?

It is for this reason that the requirement for you and your opposing party to mediate your case is waived in many southeast Texas courts when family violence is an issue. Furthermore, even if the requirement to mediate your case is not waived automatically due to family violence being involved, it can happen that if you object to having to go that the objection will likely be upheld by the judge.

In cases where there is domestic violence that has occurred between you and your opposing party do not be surprised if the judge takes extraordinary steps to ensure your protection. I have seen judges appoint third parties to attend mediation as an extension of the court in order to help prevent additional acts of violence from occurring. Many judges have “go-to” mediators who have specific experience one expertise in handling cases where there have been acts of domestic violence perpetrated by one party against the other.

If you have been the victim of family violence it is ultimately up to you whether or not you will attend mediation in your case. Some people believe that there are still benefits to be had with the process if, in fact, you feel that you can negotiate freely, considering the circumstances. On the other hand, you may feel constrained for multiple reasons and can choose to opt out of the mediation requirement of your court. Either way, this is a decision that is fact-specific and ought to be discussed at length with your attorney prior to arriving at a final decision.

International divorces- how where you’re from can impact your Texas divorce

In a city like Houston, it is not at all uncommon to encounter families who have one or both parents born internationally or at least have roots in another country. You may be in a position where you are currently living abroad while your spouse lives here in the United States. Or, you both may live here in the United States but you could own property in foreign countries. Your having had children may have created opportunities for you to visit family abroad more often. There are certainly numerous ways that your family could have international ties.

Family law in Texas becomes a tad more complicated when you consider the implications of an international divorce. The more diverse the set of facts and circumstances, the more crucial it becomes for you to be able to sort through them in a logical and clear-headed manner. In today’s blog post from the Law Office of Bryan Fagan, we will discuss this topic in greater detail.

What are the main issues relevant to an international divorce?

From my experiences, there are basically six topics that we have to discuss that relate in some way to an international divorce. Those issues would be jurisdiction, service of process, choice of law, discovery, property division and then the enforcement of the orders that are arrived at in the child custody or divorce case. While we can say with some confidence what the issues are that we need to discuss, the fact that they are all interconnected can make things more complicated.

Let’s take each of those six issues and discuss them in greater detail.

Jurisdiction- who gets to decide what?

If you are like most people who go through a divorce, you are likely chomping at the bit to have the important questions of your case decided. Who gets what property? How much child support are you going to have to pay? To what extent will you be able to see your children? These are all relevant questions that need to be answered. Unfortunately, they are questions that cannot be answered without first determining whether or not Texas has jurisdiction to hear the case. If, in fact, the state of Texas lacks jurisdiction to hear your case then you are in a position where you need to figure out what venue is appropriate.

Simply put, jurisdiction refers to a court’s authority to make rulings and issue orders in a specific legal matter that is brought before it. These rulings, in a divorce context, are usually tied to property rights and child custody. In an international divorce, you not only have to contend with the questions of whether or not Texas has jurisdiction over your case but whether or not any U.S. state has jurisdiction over your case.

Personal jurisdiction is the first issue that we have to tackle. Ask yourself whether or not you and your spouse have sufficient ties with Texas in the event that it is here that you want your case to be heard.

Next, you will need to determine whether or not a court in Texas has the authority to handle your divorce case and all the issues that are connected to it.

Finally, it could be the case that Texas and another jurisdiction both have equally strong claims to hearing your case. In that event which court should and would your case be heard in?

From the beginning of your case until its end, these are the dominant themes and questions that you will be asking yourself. The difficult part of the process is that determining jurisdiction is not always a straightforward issue. A judge in Texas may have jurisdiction over your case while a judge in another country may have an equally strong claim to having jurisdiction. In those type of situations, you and your attorney will need to determine where your case ought to be filed from a strategic standpoint.

What country’s laws should apply to your international divorce?

Family laws differ significantly from state to state in our country so I’m sure it wouldn’t surprise you to find out that the laws of divorce can vary even more so from country to country. Once you have determined which court will actually be hearing your case the next question that needs to be asked is what set of laws will be determining the contested issues in your case.

First of all, how will you file for divorce? Do you need to assert “fault grounds” for your divorce? Texas allows you to file for divorce for any reason under the sun- including no particular reason at all. However, some foreign countries do not allow you to do so. Will you need to prove adultery or domestic violence in order to get your divorce if you have to file in an international divorce?

Next, does the law of the country that will govern your divorce require that you divide the property up in your divorce along with a 50/50 basis? Texas is a community property state that, absent other circumstances, will usually require a fairly even split of the marital assets (property that came into being during the course of your marriage).

Will prenuptial or postnuptial agreements be honored?

The concept of prenups has become fairly well known through our popular culture in the United States. Coming to an agreement with your spouse-to-be while you are still on good terms regarding certain property related issues is a good idea in the eyes of the State of Texas and property agreements like this are honored in most cases.

This may not be the case for your foreign courts. When considering where you should file your divorce and attempt to establish jurisdiction this is a question you need to ask yourself: whether or not you have come to an agreement on a premarital or post-marital agreement. If you have done so it would be unwise to file for divorce in a jurisdiction that would not honor the agreement.

Spousal maintenance: to pay or not to pay?

If you are in a position where you will need to be requesting spousal maintenance be paid from your spouse to you at the conclusion of your divorce you need to do your homework to determine what laws are most favorable in this regard. Texas only recently began to allow judges to impose orders regarding the payment of spousal maintenance. Even then, these payments are typically only allowed for a relatively short period of time and under limited circumstances. The length of your marriage, for instance, must be at least ten years and you must also show that you cannot provide for your minimal basic needs otherwise.

Service of process issues for international divorces

Typically, when you file for divorce in Texas you will have a constable or private process server pick up the divorce paperwork from the courthouse, drive out to your spouse’s residence or business and have him or she served personally with notice of your lawsuit having been filed. The process can take a few days but it is typically a low-key and simple transaction to complete. It is important, nonetheless, because your case cannot proceed without your first having provided notice of the lawsuit to your spouse.

There are international treaties that are in effect that govern how you can provide notice to any person who is a resident of a country that has signed on to that treaty. While the United Nations has a treaty in place that governs this subject, each member nation interprets its contents a bit differently. From personal experience, I can tell you that this step is one that can delay a case for weeks and even months. You are best served by hiring an attorney who knows how to quickly and correctly serve an opposing party with an international service of process.

More on international divorces to be posted tomorrow

In tomorrow’s blog post from the Law Office of Bryan Fagan, we will discuss more issues related to divorce from an international perspective. In the meantime, if you have any questions about the material that we have covered please do not hesitate to contact the Law Office of Bryan Fagan. We offer free of charge consultations six days a week with one of our licensed family law attorneys. It would be an honor to meet with you to discuss your case and answer any questions you may have.

Our attorneys and staff share a commitment to putting your interests ahead of our own and to provide the best legal representation of any family law attorneys in southeast Texas. To find out what sets us apart from our competitors please give us a call today.

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



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Texas Parents Lose Custody Of Their Kids After Doctor Wrongly Suspects Child Abuse

Texas Parents Lose Custody Of Their Kids After Doctor Wrongly Suspects Child Abuse

Texas Parents Lose Custody Of Their Kids After Doctor Wrongly Suspects Child Abuse 2

These Texas parents lost custody of their kids after a doctor wrongly diagnosed their son and suspected child abuse.

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#MiracelsofFaith

custody dispute

Why I Used a Paralegal Instead Of an Attorney During a Custody Dispute

custody dispute

 

When I moved to a new state and my ex showed up after 3 years of not seeing our children with a lawyer and a petition for custody of our younger son, I was lost. I was also broke, with no money to hire an attorney.

Being unfamiliar with the laws and procedures of my new state, I started doing my homework. I also began to worry because a custody case was far more legally treacherous than anything I’d done on my own before. I knew I needed help making sure I was filing the appropriate paperwork with the appropriate court.

Why I Used a Paralegal Instead Of an Attorney During a Custody Dispute

I found out, via my own personal experience, that a paralegal can be a valuable asset if you are not using an attorney. If you’re going through a divorce, but don’t want to break the bank, you might be asking yourself, can I use a paralegal instead of a divorce attorney? In most states, it is legal to use the services of a certified paralegal to help with the paperwork generated by the divorce process.

In some states independent paralegals have been given legal right to serve as “legal document preparers,” so if you have a motion to file or a petition to draw up, you are within your legal right to hire a paralegal.

Things Paralegals can do

Paralegals can legally prepare divorce forms for you, and they can tell you where those forms need to be filed. Paralegals can also tell you how to serve divorce forms to your spouse, and help you fill out state-specific forms for modifying child support or alimony.

Things Paralegals can’t do

Paralegals can’t give you legal advice. They also can’t go to court and advocate for you the same way a divorce attorney will. If you are experiencing a fairly simple, uncontested divorce, you can save money by using a paralegal instead of a divorce attorney.

If your divorce is highly conflicted, with issues such as a custody battle or large assets to split, a paralegal is not something you want to consider. Their knowledge of court procedure and state divorce laws are limited, which makes them less valuable in a high conflict situation.

How to Find a Paralegal

As with a divorce attorney, you should not contract with a paralegal without first doing research into their background. Check with your Better Business Bureau for any complaints, and ask prospective paralegals about their experience and education. Making sure your paralegal is qualified is imperative when using one in place of a divorce attorney.

Sometimes Paralegals Know More

If your divorce is highly conflicted with issues such as a custody battle or large assets to split a paralegal is not something you want to consider. Their knowledge of court procedure and state divorce laws are limited which makes them less valuable in a high conflict situation.

As with a divorce attorney, you should not contract with a paralegal without first doing research into his/her background. Check with your Better Business Bureau for any complaints. Ask about their experience and education. Experience and qualifications are imperative when choosing a paralegal!

In my case, the paralegal I found looked over the case paperwork, and help me get everything done appropriately for a small fee. Here is the kicker: My paperwork was in good order, and my ex’s attorney had filed the petition for custody with the wrong court.

Thanks to the paralegal, we slowed down the process a bit, and when I did show up in court, all of my documents were properly filed and in order. Help can come from unexpected places. If you aren’t able to hire an attorney but need to use the court to protect your legal rights, a paralegal can guide you through the process and alleviate a lot of stress and anxiety.

The post Why I Used a Paralegal Instead Of an Attorney During a Custody Dispute appeared first on Divorced Moms.

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Child custody essentials for Texas families

Co-parenting your way through a child custody case in Texas

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

Many people who go through child custody cases do so with the initial motivation to not have to live with their child’s other parent. There are always reasons for this but they tend to be fairly similar across the board: money fights, infidelity, etc. The fact is that people seem to be less and less likely to work on a failing relationship and instead opt to exit.

The ironic part about ending your relationship with your spouse or significant other is that if you have a child with that person you will actually be working closely with him or her on parenting your child after the case is over then you may have been doing before.

Co-parenting is one of those phrases that is used a lot these days by therapists, attorneys, and judges. It is a term that basically indicates two people coming together to parent a child who is not married or otherwise in a committed relationship. It’d be like if two business partners decided to adopt a child and then had to make decisions about raising the child based on a business agreement. In many ways, your Final Decree of Divorce or Final Orders in a Suit Affecting the Parent-Child Relationship (SAPCR) is exactly that.

Today’s blog post from the Law Office of Bryan Fagan will focus on your ability to co-parent your child with your ex-spouse after your child custody case has concluded.

Conflict can be minimized if you put your best effort into co-parenting

It is healthiest for your child when you do your best to work with your ex-spouse during and after your child custody case in order to make decisions together that are in your child’s best interests. Keep in mind that if there has been a history of domestic violence, substance abuse, a history of cooperation issues or even a significant distance between your residences, co-parenting may not be possible. However, for most of you reading this blog post-co-parenting is not only possible it is essential to your being able to give your child his or her best opportunity to be raised in a stable environment.

The comparison I used in the opening section to this blog post, that of a businessperson being compared to a parent, is actually quite apt in my opinion. It is hard to think about yourself, not as a loving caretaker, but rather as an objective, results-oriented businessperson but that is what you become once you enter into a family law case. The rules that govern your relationship with your ex-spouse and your child are written in black and white almost as if it were a business contract. It is, in fact, a contract of sorts between yourself, your ex-spouse and the judge.

Communication is the key to any good relationship. It may not be possible at this stage to communicate as effectively as you would like with a person who you are divorcing but it essential that you make an effort to start anew for the betterment of your child. If you can be positive with your ex-spouse about your efforts to co-parent each of you will be better served in doing so. Not only will your final orders require that you behave in such a manner, but the well-being of your child demands that you make an attempt to act civilly.

Conflict is normal- don’t be normal

If you were to ask a judge if it were normal for two divorcing parents to not get along with one another the response would surely be that, yes, it is normal. That normal back and forth of arguing, anger and conflict work against the successful resolution of a case and can also harm your relationship with your child. In these situations, it is worth noting that it is those parents who can be “weird”, set their differences aside and do what is best for their child that judges will give the most latitude to in terms of possession arrangements. If you display an unwillingness to co-parent it may be that your possession schedule is by the book and very rigid.

Most counties in southeast Texas require divorcing parents to attend, either via the internet or in person, parenting courses that will teach you how to approach your ex-spouse in terms of co-parenting. Setting aside your differences and approaching your new relationship as one where your only objective is to do what is best for your child is what I find parents do the best with.

How will a judge determine your ability to co-parent?

No matter how strongly you dislike your soon to be ex-spouse, a judge will not care about your feelings towards him or her as far as your own pride or hurt feelings are concerned. Rather, the judge will view your relationship with one another as a means to best raise your child. The question remains: how will the judge view you and your ex-spouse as a team in raising a child together?

Do you and your ex-spouse work together to make decisions that are in the best interests of your child? Have you displayed an ability and willingness to set aside time to talk to one another about the issues that are affecting your child’s life? If you can report that you and your spouse talk on the phone weekly about activities the child is involved with, changes in your work schedule that affect drop off/pick up times, and subjects like these it is more likely that your judge will view you and your spouse in a favorable light.

Next, what kind of restraint are you able to show your ex-spouse when you are feeling upset with him or her? It is easy and can feel good momentarily, to lash out in anger at your spouse while the divorce case is going on. I have heard many stories about spouses leaving nasty voicemail messages, text messages or saying mean and spiteful things to one another during a divorce case. The pressures of the case can be significant so it would be understandable to want to lash out at one another. However, if you can show restraint and civility you will earn points in favor of your case with the judge.

How often have you used your child as a messenger or go-between? Obviously, if you are the parent of an infant or toddler this probably hasn’t come up very much, but if your child is over the age of six it can be tempting to tell your son something so he can repeat it to your spouse when he goes over to his house for the weekend. This may be easier on you, but it is not a good position to be putting your child into. Furthermore, the judge does not want you and your spouse involving your child in this aspect of your case. In today’s world, we do not suffer from a lack of means to communicate information. Even if you do not want to speak directly to your spouse, email, text messages, and parenting websites make communicate easier than ever. Do not use your child to communicate updates or messages when you have a variety of means available to you in order to do so.

Next, I would ask yourself how willing you are to support your child’s relationship with your soon to be ex-spouse. This does not mean that you have to sing your ex-spouse’s praises to your child every time you see him or her. What it does mean is that your being respectful of your child’s other parent can not only build up that person in your child’s eyes but can also build yourself up. Your child is learning from you how to treat other people. If you can act respectfully towards your ex-spouse it is likely that you will act respectfully of all people. Your child will feel that it is appropriate and encouraged that he has a relationship with both you and your ex-spouse.

Finally, you need to be aware of your ex-spouse and their desire to be updated about changes in a child’s routine or daily habits. For instance, if your child has been having problems eating certain foods or has had a bad reaction to a certain sunscreen that information ought to be included to your ex-spouse. Not only is it harmful to your child it shows a lack of respect by not addressing these issues with him or her. Furthermore, if you know that your ex-spouse is taking off of work to attend a school function or doctor’s appointment you should inform him or her immediately if you are told that there has been a time change or something like that. Failing to do so can cause a great deal of animosity to be directed your way- and rightfully so.

Where do you want to live once your divorce is over with?

In today’s world, it is common for people to pick up and move at the drop of a hat. Jobs are no longer tethered as tightly to one specific location. Many employers prefer that employees work remotely and therefore have little preference as to where you live. Telecommuting seems to be the wave of the future in many jobs and sectors of the economy.

It is possible to co-parent despite living a fair distance away from your ex-spouse. Communication has never been easier with cell phones, text messages, emails and the like prevalent even among those (like myself) who are not overly tech-savvy. Whether or not a judge will allow you to move a long distance away from your child’s primary residence, or to move with your child away from your current location, is a question that depends on the specific circumstances of your case.

For example, wanting to move in order to “start fresh” or establish roots in another place are not good enough reasons in and of themselves for moving. Not only are you decreasing the stability and consistency in your child’s life (at least temporarily) but you are also causing there to be a potential rift in your child’s relationship with your ex-spouse. It would not be fair to be able to move your child away from their home and your ex-spouse for no other reason than merely wanting a fresh start somewhere new.

Next, the age of your child would need to be considered. If your child is young and has not yet started attending school on a full-time basis the chances of a judge allowing you to relocate after a divorce are increased. However, if your child is already of school age it is far less likely that a judge would endorse and allow you to move away with your child after the case has concluded.

Finally, and most important, it is almost a foregone conclusion that your ex-spouse’s relationship with your child would be harmed if you moved a considerable distance away. It would also force your ex-spouse to pick up and potentially move to be closer to your child. For this reason, most courts will insert what is known as a geographic restriction into your final orders that allows you to live in your home county and any county contiguous to your home county. This allows for greater consistency and stability for your child while ensuring that your ex-spouse does not have to constantly move to keep up with your child’s whereabouts.

What issues are the most commonly encountered in child custody cases?

Those who don’t know history are doomed to repeat it. What lessons can you learn from other people’s child custody cases that are relevant to you and your family? Stay tuned tomorrow to find out the answer to this question.

In the meantime, if you have any questions about the material that we covered today 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 address your issues and answer your questions in a comfortable, pressure-free environment.

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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Texas Parents Lost Custody of their Kids After Doctors Wrongly Said Baby Was Abused

Texas Parents Lost Custody of their Kids After Doctors Wrongly Said Baby Was Abused

Texas Parents Lost Custody of their Kids After Doctors Wrongly Said Baby Was Abused 3

Jason and Lorina Troy were accused of abusing their infant son, but further medical tests found that he had a rare disease

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