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What can I do if my ex disregards the stay-at-home order and puts our children at risk?

divorce trends

Question:

What can I do if my ex disregards the stay-at-home order and puts our children at risk?

Answer:

I do not practice law in your state. Therefore, I cannot inform you as to the specific laws of your state, but I can provide you with general tips for this sort of issue.

As you are experiencing, many parents during this time improperly are ignoring the pandemic warnings. As such, many of the nation’s family courts quickly are responding to these types of situations.

That being said, the courts generally do not like to see parents engaging in self-help, which is when a parent decides what they believe is the best course of action without seeking court intervention. For example, if you decided to withhold your children based on the other parent’s behavior, this could be frowned upon by the court. 

If you have an enforceable court order, you certainly have the right to inform the police that the order is not being abided by if the other parent is putting the children in harm’s way. At times, law enforcement is unwilling to engage in any type of situation which may be considered a family law matter and will direct people to file appropriate actions with the courts.

A lot of courts now are having emergency or expedited hearings, as it relates to contempt of custody orders. Further, if your jurisdiction is under a stay-at-home order, many courts have implemented virtual hearings, so you can participate in a hearing by phone or video conference.

In my jurisdiction, once a custody order is entered by the court, the court expects that each party will abide by the order, but the court does consider the best interests of the child(ren) paramount. If parties to a custody order do not abide by the terms of the order and/or put the children in harms way, the party seeking enforcement of the terms of the order has the ability to file a contempt petition against the offending party.

In order for contempt to be found, the moving party (the one who wants to show there was contempt) has to show that the offending party has “willfully failed to comply” with the court order. In other words, you have to show that a person purposely is not abiding by the terms of the custody order.

However, the courts generally will not enter a contempt order until such time as the custody order actually has been violated or there is a clear indication (i.e. a person actually stating, preferably in writing, that they will not abide by the terms of the court order) that the custody order will not be followed. If the courts find that a party is in contempt of the custody order, there are several remedies the court may utilize.

Some examples are: imposing monetary sanctions, awarding counsel fees if counsel is retained, changing of the custody order (a rare occurrence but may happen if contemptuous behavior is pervasive and ongoing), and potential incarceration.

To arrange an initial consultation to discuss divorce rights for men with a Cordell & Cordell attorney, including Pennsylvania divorce attorney Caroline Thompsoncontact Cordell & Cordell.

The post What can I do if my ex disregards the stay-at-home order and puts our children at risk? appeared first on Dads Divorce.

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Child Court Order – What Is It And Do I Need One?

Child Court Order – What Is It And Do I Need One?

So your ex has stopped you from seeing the children or is making decisions which you disagree with.  They refuse to communicate and so you have no choice but to seek legal advice and apply for a court order.

What is it?

Firstly, we need to take a step back.  In the UK, applications for care orders will not been heard unless mediation has been attempted.  It is a legal requirement, the aim of which was to reduce the volume of applications going to court.  Sadly, if you are dealing with a hostile ex mediation will not work.  Mainly because (much like co-parenting) it requires them to cooperate and negotiate.  Narcissists don’t negotiate.  They have a “my way or no way” attitude and so invariably you will have your C100 signed off giving you permission to apply to the court.

 

Child court order (or Child Arrangement Orders) have replaced residency and contact orders.  They decide:

  • where your child lives
  • when your child spends time with each parent
  • when and what other types of contact take place (phone calls, for example)

As long as you have PR, you can apply for a CAO.  In order to apply you must follow these steps to apply for a court order.

  1. Read guidance CB001 on making an application.
  2. Fill in the C100 court form. You must show you’ve attended a meeting about mediation first – except in certain cases (there’s been domestic abuse, for example).
  3. Send the original form and 3 copies of it to the nearest court that deals with cases involving children.

 

It costs £215 to apply for a court order. After you apply for a court order, the court will arrange a ‘directions hearing’ with both parents if you apply for a court order (known as a First Hearing Dispute Resolution Appointment or FHDRA)

child court order

Cafcass

Children and Families Court Advisory and Support Services

There will usually be a family court adviser from the Children and Family Court Advisory and Support Service (Cafcass) at the hearing. Before the first hearing Cafcass will do

 

  • Safeguarding checks: they carry out checks with the police and the local authority to find out whether there are any known safety or welfare risks to your children.
  • Telephone interview: In most cases, they will phone you and the other party to find out if either of you have any concerns about the safety and welfare of your children. You are unlikely to have a home visit before the first hearing. Only people who are parties to the case will be interviewed.
  • Safeguarding letter: At least three days before the first hearing Cafcass will provide the court with a short report on the outcomes of the safeguarding checks and any child welfare issues raised in the telephone interviews with you and the other party.

At the hearing, a judge or magistrate will try to work out:

  • what you can agree
  • what you cannot agree
  • if your child is at risk in any way

They’ll encourage you to reach an agreement if it’s in the child’s best interests. If you can, and there are no concerns about the child’s welfare, the judge or magistrate can end the process.

 

The court will make a consent order which sets out what you’ve agreed, if necessary.

 

If you cannot agree at the first court hearing the judge or magistrate will set a timetable for what happens next.

 

They may ask you to try again to reach an agreement, for example by going to a meeting with a mediator.

 

You may have to go on a course if your case is about child arrangements. The course is called a ‘Separated Parents Information Programme’, and could help you find a way to make child arrangements work.

 

The court can ask Cafcass to provide a report on your case to help decide what’s best for the child (known as a section 7). The Cafcass officer may ask your child about their feelings. You’ll get a copy of the report when it’s written.

 

The judge or magistrate will consider:

  • child’s wishes and feelings
  • child’s physical, emotional and educational needs
  • effect any changes may have on the child
  • child’s age, gender, characteristics and background
  • possible risk of harm to the child
  • ability of parents to meet the child’s needs
  • orders the court has the power to make

 

A judge or magistrate will only make an order if they think it’s in the child’s best interests. 

(from www.gov.uk)

Do you

If your ex is stopping you from seeing the children or making co-parenting extremely difficult, then yes, you need one.  

  1. Your ex will not negotiate with you at all and so it is your own real way of being part of the decision making process with regards to your children
  2. Any parent who tries to erase a parent out of their child’s life needs to be held to account.  Mild cases will usually be resolved through the “Separated Parents Information Programme” but moderate to severe cases often involve a parent with mental health issues which will need to be managed.  If their behaviour is allowed to continue, you can find yourself completely alienated from your own children.

Is it worth it?

I wanted to add this section because although it is absolutely necessary and your only real option at this moment in time, I do feel you need to be aware of the realities of going to Family Court.  

 

With certain personality types, they will see the court process as an opportunity for them to not only bleed you dry, but also to play the hero and victim in one go.  They will present as a victim of your treatment (abuse claims are common) and the hero for trying to keep the children safe.  They will rope in the children to deliver this powerful and damning report which is incredibly harmful to the children.  In any other circumstance I would also argue for keeping children and families out of court.  However, if you don’t go to court you are not only kissing goodbye to a relationship with your children but also ensuring only one side of the situation is ever heard.  By fighting through court (and unfortunately it is a battle) you are showing the children in the only way possible, that you want them in your life.  

 

One other point is that even with a CAO, if your ex is determined, they will do everything they can to breach it and not comply.  They will make continued false allegations to delay the process and they will induce behaviours in the children which make them believe you are dangerous and so they should stay away from you.  Sadly, the court doesn’t have a robust system for dealing with this and so breached go unpunished and Fact Finding Hearings delay contact for months at a time.  

 

I realise this is a bleak picture but parental alienation (the psychological manipulation of a child to reject their loving parent) is a very real issue in the court process and one which you need to be aware of.  Hopefully your ex is not severe but if you check multiple items on the list below, you are likely to be dealing with a personality disordered individual and need help FAST. 

Your Best Weapon Yet

Everything you need to know about parental alienation

The post Child Court Order – What Is It And Do I Need One? appeared first on The Nurturing Coach.

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What should parents do about exchanging their children under a Texas standard possession order when school is not in session due to COVID-19?

What should parents do about exchanging their children under a Texas standard possession order when school is not in session due to COVID-19?

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

This is a question that the family law attorneys with the Law Office of Bryan Fagan have been receiving with great frequency since the middle of March. Most family court orders in Texas determine possession and visitation based on the school year calendar for the school district or school that your child attends. Without that reference point many parents were left scratching their heads as to how to proceed. With there being some question as to what will happen with school starting up (or not) in the Fall, we figured it was a good idea to continue to provide answers to these questions as we head into the summer months.

If you have been keeping your child on a set schedule with at home learning then you and your family will be ahead of the game at least when it comes to maintaining a structured environment. Many children, however, are left to fend for themselves due to a range of circumstances. Talking to your children about these abnormal times can help them to process these changes instead of just reacting to them without any context about how or why they are occurring in the first place.

Since your child lives apart from both parents you can utilize this time as a great opportunity to begin to focus on co-parenting and working together to coordinate your messages to your children, child care during the summer and what you all will plan to do during the fall if school does not start up on time at the end of summer. As unpleasant as it can be to work directly with your ex-spouse on situations like this I can tell you from experiences working with many parents in our community that it is best for your children.

What are family law attorneys advising their clients during this time?

It is beneficial to have an attorney in your corner who not only knows the law but can guide you as far as what to do in the event that a problem comes up associated with possession or visitation. If you have an ex-spouse who is not honoring your court orders or has decided to not be flexible with you during this difficult time then you may need to hire an attorney to help you sort of your options.

Without knowing your particular situation, it is tough to give specific advice. If you do want to talk with experienced family law attorneys then you should contact our office today. We can schedule you for a no strings attached, free of charge consultation via phone or video. It’s in these conversations where your specific questions can be answered. Otherwise, we will do our best in today’s blog post to provide general advice that you can apply to your life.

I think one piece of advice that is not legal in nature is that you and your family should focus on one thing above all else right now: your health. This means that you should be aware of what the government is advising you to do as far as staying healthy. However, that does not mean that you should not work with your doctor and the pediatrician for your children as well. Common sense (which isn’t so common anymore) cannot be ignored during this time, either.

Showing your child how to act in a tough circumstance can be a lesson that sticks with your child for the rest of your life. More in caught than taught with children, in my opinion. I know that with my kids they will often “forget” something that I tell them, but they will remember vividly the things I do. The habits that you display for your children as far as your health and how to take care of yourself are incredibly important for your children during this time.

Simple things that we take for granted are habits that need to be ingrained into your child starting now. This means handwashing before and after meals and making sure that the surfaces in your home are regularly cleaned seem like little things in the grand scheme of things. However, I think we can all attest to the fact that little things can make a big difference in the lives of our families right now.

Social distancing a concept that we are all undoubtedly familiar with at this stage of the game. The idea of distancing yourself from people who may or may not be ill makes sense and in theory should have been something that we did even before COVID-19 or the coronavirus became parts of our vocabulary. We should all be making sure that our kids understand why we are behaving like we are and that they begin to keep in mind how to protect themselves from sickness.

Finally, staying healthy means keeping up with the news at events warrant it. I am not saying that keeping the cable news networks on your phone or television all day long is a smart thing to do. In fact, doing that may actually do more harm than good. However, you should find a reputable news source and refer back to it when updates occur in our area. For example, as the governor begins to roll out various openings for businesses you should know when and if those changes impact you and your family.

Help your child to keep things in perspective

Your child may be one, seven or seventeen years old. Depending on the age of your child you need to be able to help him or her be aware of the changes that are ongoing as we begin to live our lives in the age of COVID-19. Eventually there will be a vaccine for this virus. Eventually we will be able to live our lives more normally than we have the past seven weeks. However, we are not there quite yet. As a result, we need to help guide our kids through this time.

That does not mean that our kids need to live in constant fear of becoming ill, getting others sick or seeing family members get sick. Someone they know may get sick, but you should help your child to understand that we all have a responsibility to keep ourselves healthy. That is how we can show responsibility to others, as well. Striking a balance between staying healthy, distancing ourselves in public when need be and educating our children on steps they can take in the meantime to keep a proper perspective on this virus.

Look to your court orders when deciding how to proceed with possession and visitation

Unless you and your child’s other parent are able to come to a mutual understanding and agreement on alternative set ups for visitation and possession, you will need to abide by your court orders. Dig out a copy and make sure that you understand what is expected of you. Those orders are not optional and do not stop working in case of pandemic. They are still the rules and you need to follow them until told otherwise by the judge from your court.

The tough part about that is your schedule and ability to care for your children during this time may have changed a great deal. For instance, if you are ill, live with a person who is ill or are a member of the “at risk” population, then you may want to allow your child’s other parent to care for your child at least for the next few weeks. Again, getting the coronavirus does not mean that you will get ill. It does not mean that worse will happen to you. However, if we are aware of the virus being passed from person to person there is no use risking your health or that of your child’s.

It would make a ton of sense for you and your child’s other parent to work out between yourselves how you would handle a situation where one of you get sick. Hopefully that never happens but you want to be prepared. Until that would occur I think it would generally be best for little to change in regard to your court orders. For one, changing court orders between yourselves will become difficult to enforce. Secondly, it will be good for your child to live their life as consistently as possible in these days where there is no school.

If you and your child’s other parent can come to an agreement on an alternative scenario for possession or visitation this week, your circumstances may change next week and one of you would simply need to change their mind for the agreed to scenario to go up in smoke. This will cause anger, frustration and a disruption to your child’s schedule. It also promotes (in my opinion) a constant degree of negotiating and back and forth between you all when it comes to modifying the orders on the fly.

The whole point of going to court, hiring attorneys and submitting them to a judge for approval was to avoid being in a situation where those orders stop working right away or are able to be changed without a great deal of thought. Coming up with new orders on the fly with your ex-spouse may work for a short period of time but in the long run may cause more problems than it solves. Talk to your ex-spouse as soon as you can about how you want to handle future periods of possession/visitation that are disrupted by this virus.

Do not try to hide your being ill if you do get sick

At this point, I’m going to guess that a lot of us know a person who has gotten sick with COVID-19. Whether or not the person got gravely ill or was just under the weather, the sickness has spread to the point of most of us having come into contact with it previously. You may have even considered what you would do if you do get sick and have a visitation time period coming up with your child. You wouldn’t want to get him sick but you also do not want to miss out on a period of visitation.

What you should do is be completely honest with your child’s other parent about your situation. If you think that you have the virus or are just sick generally speaking, then it is not wise to be with your child right now if you can avoid it. This is when working directly with your ex-spouse on coming up with visitation arrangements is a good thing to do. Our lives have all changed as a result of this virus- at least temporarily. It would make sense that visitation and possession would change as well.

You should make sure that your ex-spouse has a plan (and that you do, too) if the other one gets sick. Alternative child-care, transportation logistics, extended family who can help, etc. all need to be worked out before either one of you falls ill. This is no longer a situation where you can just say that you got sick out of the blue. We are all aware of what can happen as a result of this virus. Now it is up to us as parents to help keep our children safe.

Questions about possession and visitation in the age of COVID-19? Contact the Law Office of Bryan Fagan

The attorneys with the Law Office of Bryan Fagan appreciate the time that you spent with us on our blog today. We post unique content here every day so we encourage you to return tomorrow, as well. In the meantime, if you have any questions about the material that we have discussed in this blog post please do not hesitate to contact our office. We can schedule a free of charge consultation for you with one of our licensed family law attorneys. These consultations can occur over the phone or via video to better suit your needs as we hopefully transition back into a more normal, and virus-free, routine.

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



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Can a Texas family court reduce an above guidelines child support obligation in an out-of-state Order?

Can a Texas family court reduce an above guidelines child support obligation in an out-of-state Order?

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

One of the cool parts of being a family law attorney with the Law Office of Bryan Fagan is that there is never a dull moment. There are always unique people with unique circumstances who walk through our door with questions about their lives and their families.

Like Texas, many other states lay out a specific percentage of a non-custodial parent’s income to pay in child support to the custodial parent. Texas has it that for one child, a non-custodial parent should pay 20% of their net monthly resources towards the support of that child. For two children, 25% would go towards child support. The percentages increase by increments of 5% until you reach five or more kids topping out at 40%. In this way, courts have a straightforward mechanism to be put into action for determining child support in most cases. It has become so predictable that the guideline levels of support will be implemented that most attorneys and clients don’t bat an eye when the issue of paying guideline support is raised.

Recently, a potential client presented a scenario where he and his wife were divorced in a state other than Texas, and after the divorce the man’s ex-wife and children had moved to Texas. The state that the children and ex-wife had previously lived in was a higher than average cost of living state and our potential client was ordered to pay child support that is above and beyond the “guideline” levels of support for that state.

Our potential client was thus left with a child support order that obligated him to pay an amount of child support that was above and beyond what is proscribed in the family code of his native state. When a judge decides regarding any subject that is related to a child, he or she must do so based on what is in the best interests of that child. This is a standard that most every state utilizes when applying the law towards the specific circumstances of a child and their family.

Based on the needs of that child, their current circumstances, the ability of their parents to provide the necessities of life and any medical/social/educational needs of that child, an amount of child support will be ordered. Whether the parties to the divorce agreed in mediation to that level of child support or a judge ordered that the amount be paid after a trial, the fact is that the current child support order for this man obligates him to pay an above guidelines level of support.

Where does the Law Office of Bryan Fagan come into play?

Here is where our office becomes relevant to the discussion. This gentleman contacted us about representing him in a child support modification case. His thoughts on the matter center around the reduced level of expenses that his ex-wife is responsible for now that his children live in the Great State of Texas. Having moved from another state whose cost of living is much higher than Texas, our potential client wanted to see what a judge would consider as far as reducing the above guidelines level of child support. Is there a basis in prior court cases to argue that an out of state child support order can be modified to see a reduction in the child support obligation based on circumstances like this?

Today’s blog post from the Law Office of Bryan Fagan will seek to answer that question. As I see it, there are two parts to this discussion that we have to tackle. The first is whether or not a Texas Court has the jurisdiction to modify an out of state child support order. The second is what basis in the law would a family court judge have to reduce the above guidelines level of child support when there has been a change in the cost of living associated with raising children.

When does a Texas court gain the jurisdiction to modify an out of state child support order?

There are a couple of ways that a child support order that comes from a court outside of Texas could be modified, potentially, by a Texas family court. The Texas Family Code states in section 159.613 that if both the child support obligor (parent who pays child support) and the oblige (parent who receives child support payments) and the child all reside in Texas then our state has attained jurisdiction over the case and may modify and/or enforce the out of state order.

Likewise, when only one party (parent) live in Texas, then a modification is possible even if both parents do not reside in Texas. This occurs when the parent bringing the modification cases (in our above scenario, the father) is not a resident of Texas and the responding party (the mother in our example) lives in Texas and is subject to personal jurisdiction in Texas. Here, too, a Texas family court would have jurisdiction over the case.

What have Texas courts stated about subject matter like this?

So now we at least have a basic understanding of how a Texas court gains the ability to make rulings regarding an order issued by an out of state court. The jurisdiction to do so is critically important. You may be in a situation like our potential client- having seen a change in circumstances that have materially affected your family since the issuing of that order. Thus, some portion of your prior order is no longer suitable for you or your children. However, if you cannot successfully argue to a Texas court that jurisdiction is proper in Texas you will not be able to make an argument about any of the facts and circumstances that justify a modification.

A fairly recent Texas state appellate court decision would further assist us in our discussion. In re Dennis J. Martinez, 450 S.W.3d 157 (2014) contains within it a good discussion of the relevant law regarding how and when an out of state court can lose jurisdiction over a case and its parties.

This court notes that in section 159.205 of the Texas Family Code, our state law provides only two ways in which a court may lose jurisdiction over a case and its parties about a family law matter. First, the obligor, the oblige, and the child would have to all move out of the state that issued the order (as we discussed previously). Another and less likely scenario would be that all individuals file written consents in Texas allowing a Texas court to assume jurisdiction and modify the other state’s order.

As noted above, the circumstances under which a court may modify a support decree from another state are found in section 159.611 of the Family Code. SeeTEX. FAM.CODE ANN. § 159.611. A modification is permitted by the non-rendering state under the circumstances outlined in section 159.611 because under such circumstances the rendering state no longer has a sufficient interest in the modification of its order.

If you are facing a situation like a gentleman who contacted us about potentially representing him in a child support modification case here in Texas, you need to consider whether or not a Texas court will even be able to hear your arguments and potentially grant you whatever relief you are requesting. Keep in mind that if you cannot clear this jurisdictional hurdle you won’t even get the opportunity to submit any of your arguments to the court as to why your child support order needs to be modified.

Can a Texas court grant a reduction in the child support obligation of a parent under an out of state order?

Here is the question that our potential client is interested in knowing the answer to. He wanted to find out what facts and circumstances would need to be in play that could lead to a court in Texas reducing his above guidelines level of child support that he is currently obligated to pay.

A modification of a child support order is warranted when the petitioning party (the person asking for the modification) can provide evidence showing a material and substantial change in the circumstances of one of the parties to the order or a child of the order. As the court in Tucker v. Tucker, 908 S.W.2d 530 (1995), notes, there is an inherent fact-finding nature of child support issues and the cases that are made up of those issues.

The high court in Texas was stating what every family law attorney worth his salt could tell you: that family law cases are extremely fact-specific. If you would like to modify a child support order then you will need to present facts clearly and concisely to the court. This means that your initial petition to the court and in your oral arguments inside of a modification hearing need to display the requisite level of material and substantial change needed to grant the modification.

Cost in living expenses has been a factor alleged by prior parties seeking child support modifications

Part of the analysis that your court will look at when considering whether or not to grant a child support modification is the expenses incurred by the custodial parent who is raising the children on a day to day basis. Remember- our potential client would like to make an argument that because his ex-wife and kids now live in Texas, with its lower cost of living than their native state, is no longer in need of a child support payment that is above the guidelines of his home state.

Costs associated with special education for your child, school tuition and things of this nature are relevant to our discussion. A court would look to the expenses of your ex-spouse to determine whether there is sufficient evidence in the record to compare the expenses of her and your children at the time that the original child support order was issued and what the expenses are now. This means that you will need to do some digging to produce this kind of evidence, especially if the child support order is from a decade ago.

In the case, In the Interest of C.C.J. and C.M.J, Minor Children, 244 S.W.3d 911 (2008), the court went over a good analysis when that has to be shown to a court to justify a modification:

To determine whether there has been a material and substantial change in circumstances, the trial court must examine and compare the circumstances of the parents and any minor children at the time of the initial order with the circumstances existing at the time modification is sought. London v. London, 192 S.W.3d at 15. 

In that case, the parent who was attempting to modify the prior court order was the mother. She was arguing for an increase in the level of child support based on a material and substantial change in the circumstances of her and her children. Her expenses, she attempted to argue, had increased dramatically in recent years, while the income of her ex-husband had increased. The evidence she presented, the court determined was insufficient to justify an increase in child support. Here is what the appellate court determined:

Here, without both historical and current evidence of the financial circumstances of Mother and the children, the trial court had nothing to compare. See id. Because there is no evidence in the record of the financial circumstances of Mother or the children at the time of the entry of the divorce decree, we conclude the trial court’s finding of “a substantial and material change of circumstances since the rendition of the prior order” is not supported by the record. Accordingly, we conclude the trial court abused its discretion in increasing Father’s monthly child support obligation.

What does the Texas Family Code have to say about a decrease in the needs of a child about child support?

The Texas Family Code states that an increase in the needs, the standard of living, or lifestyle of the oblige since the rendition of the existing order does not warrant an increase in the obligor’s child support obligation. Texas Family Code section 156.405. I would also argue that the opposite could also be potentially held by a Texas court. Specifically that an argument that a decrease in the needs, the standard of living or lifestyle of the custodial parent is not necessarily a reason in and of itself to modify a child support obligation.

A Texas case that is important for our purposes is In the Interest of J.A.H. and M.K.H, Children, 311 S.W.3d 536 (2009). Here, as in the prior case we discussed, a mother was attempting to argue that an increase in her expenses due to a change in the cost of living after a move justified an increase in the child support obligation of her ex-husband. What the court found, in this case, was that all of the evidence submitted by the mother tended to show that there had been a change in her circumstances rather than a change in a substantial change in the circumstances of her children.

The court argued that simply showing a change in lifestyle and not a material or substantial change in circumstances of the children does not in and of itself justify a modification of the child support order. If you attempt to argue that because your ex-spouse’s mortgage payment has decreased or that their utility bills are lower and that justifies a decrease in the child support obligation, then this case should give you pause.

How are the needs of your child taken into account by a court?

Specifically, to justify an award of child support above the guidelines outlined in the Texas Family Code, your ex-spouse must show that there would be needs of your child that would be unmet but for the higher than guidelines level of support. Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 (Tex. 1993). Note that the needs of your child are not the bare necessities of life, either. Each court will decide as to what the needs of your child are. Like we mentioned earlier in this blog post, the facts of your case will guide the judge in large part.

The bottom line: if you wish to modify a child support order come with plenty of evidence

Whether yours is an out of state child support order or an order that originates in Texas, you need to come to court with plenty of evidence that justifies the modification request A family court judge has the authority to reduce a level of child support that is currently set above the guidelines of your home state, but to earn that decrease in the support obligation you have to submit sufficient proof showing a change in the conditions of your spouse, your children or you. A material and substantial change regarding the cost of living is a trickier argument to make than one based on a change in your income or an increase (or decrease) in the educational or medical needs of your child.

Please consider contacting the Law Office of Bryan Fagan if you have questions about today’s material. Our licensed family law attorneys offer free of charge consultations six days a week where we can answer your questions in a comfortable and pressure free environment.

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



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Texas Court Denies New Qualified Domestic Relations Order More Than 20 Years After Divorce

Texas Court Denies New Qualified Domestic Relations Order More Than 20 Years After Divorce

Originally published by Francesca Blackard.

By

A court generally may not amend or change the property division made in a Texas divorce decree.  The court may issue an order to enforce the property division, but such an order may only clarify the prior order or assist in its implementation.  If a court improperly amends or modifies the substantive property division in the final divorce decree, it is acting beyond its power and that order is unenforceable. Tex. Fam. Code Ann. § 9.007.  Qualified Domestic Relations Orders (QDRO) are separate orders that set forth the distribution of retirement plan assets.  They are considered a type of enforcement or clarification order and cannot change the property division made in the divorce decree.

In a recent case, an ex-wife sought an additional QDRO years after the divorce was finalized.  The couple divorced in 1995, and the parties have been in litigation for the past several years regarding the husband’s retirement accounts.

The divorce decree awarded the ex-wife 50% “of any and all sums … related to any … retirement plan, pension plan, … or other benefit program existing by reason of [ex-husband’s] past, present, or future employment, including without limitation, [ex-husband’s] Retirement Fund, Provident Fund, and SPIF Fund with Shell Oil Company per Qualified Domestic Relations Orders …”  The trial court signed a QDRO awarding the ex-wife half the funds in the ex-husband’s Shell Provident Fund on the date of the divorce.  The court found the total community property interest in the Shell Provident Fund was the total amount of contributions, interest, and earnings made or accrued by or on behalf of the ex-husband into any of the Shell Provident Fund accounts.  The QDRO stated the ex-wife was “divested of all right, title, and interest in and to any balance remaining in any account of the Shell Provident Fund…” and that the fund would be discharged from all obligations to her when full payment was made pursuant to the QDRO.  It also said it would become an integral part of the divorce decree.

 

The ex-wife received the funds from the QDRO.  In 2015, the ex-wife petitioned for another QDRO and the court signed it, with a valuation date of July 15, 2015.  The husband said he was not given notice of the hearing and that neither the petition nor the QDRO were on file with the court before the hearing.

The ex-wife did not receive the funds from the 2015 QDRO.  She filed an amended QDRO in April 2016 with a 2015 valuation date, but the trial court did not sign it.  She filed a petition to enter an amended QDRO the following month, with the 2015 valuation date and amount.

In April 2017, the husband filed a petition for bill of review of the divorce decree.  He asked the court to clarify that the retirement benefits were to be divided as they existed on the date of the divorce.  He argued the court did not have jurisdiction to sign the 2015 QDRO because it conflicted with the divorce decree and the 1995 QDRO. The ex-wife then filed another amended petition to enter a QDRO.  After a hearing, the trial court granted the bill of review, modified the decree, and set aside the 2015 QDRO.

The ex-wife filed a response, arguing the bill of review had been untimely.  The court then signed a “Court’s Rendition,” in which it denied the bill of review, set aside the reformed decree and QDRO, and reinstated the original decree.

The ex-wife then filed another proposed QDRO, but the trial court did not enter it due to a missing signature.  She filed a “Motion to Sign QDRO.” The docket entry indicated that the motion was not properly served, and the hearing was rescheduled.  The husband’s attorney argued the 1995 QDRO divested the ex-wife of all interest in the fund.  The trial court denied the motion, finding the 1995 QDRO awarded the wife half the funds as of the date of divorce and that she was not entitled to anything else from the fund.

The trial court denied the wife’s motion for a new trial. She appealed, arguing the divorce decree had awarded her half of the fund through the ex-husband’s last date of employment.  The ex-husband argued that the proposed QDRO was an impermissible collateral attack on the 1995 QDRO.

The appeals court noted that a QDRO is a final, appealable order.  A party who does not appeal a QDRO may not collaterally attack it through a separate proceeding.  The appeals court found that the ex-wife’s motion to enter a new proposed QDRO filed so many years after the divorce was such a collateral attack.

The court also noted that the 1995 QDRO awarded the ex-wife half of the fund as it was valued on the date of the divorce and divested her of any further interest.  The QDRO she sought to have entered would have awarded her a share of all amounts contributed on behalf of the ex-husband “in the past, present, and future.” The ex-wife received the funds she was awarded in the 1995 QDRO in 1995.  Her proposed QDRO sought to avoid the effect of the decree and the 1995 QDRO, making it a collateral attack.

The appeals court also rejected the ex-wife’s argument that she was entitled to QDROs awarding her half of the ex-husband’s other benefits and employer-based savings plans through his past, present and future employment.  The court found she was also barred from collaterally attacking the division as to these benefits as well.

The appeals court affirmed the trial court’s denial of the motion to sign the QDRO.

Although this case is procedurally complex, it illustrates the importance of addressing issues promptly through the appropriate procedures.  If you think your marriage may be ending, a skilled Texas divorce attorney can help you through the difficult process.  Schedule an appointment with McClure Law Group by calling 214.692.8200.

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



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What You Need To Know In Order To Hire An Attorney And Survive The Ordeal

What You Need To Know In Order To Hire An Attorney And Survive The Ordeal

 

I wonder how long people who go through a divorce remain shell shocked?

I have struggled for so long trying to figure out why my life turned out like this. Why was I the chosen one to carry so much and what was my role in this?

Did I sign on to this in another life?

Did I agree to this before I was born?

Why did I allow so much emotional abuse after the divorce?

Why didn’t our divorce end on some note, if any of goodness?

I mean, he went through three attorneys. I had two. The first one was our mediator. But suddenly as it often happens, my then husband abandoned the notion that mediation was a good way to go. He allowed himself to be counseled by the woman he left me for and by a myriad of others presumably.

So, I was left to have the mediator act on my behalf. But sadly, I found out shortly into it that she was rather disinterested and was planning on retiring. She did. Hence the reason for me to hire someone new.

How does one hire an attorney anyway?

How does one hire someone who is serving you like a real estate agent and a Hollywood agent at the same time? Only the buying and selling is your personal marriage and your children are the amenities in the deal. How do you find an attorney that apparently has to look and feel the opposite of the person who served as the priest or minister who married you?

The dis-marriage is equal in emotional intensity as the marriage. On your wedding day, all is perfect in your world. You are enchanted with life and cannot wait to start this new journey into the unknown. On the day of your divorce, you are emotionally exhausted and terrified of the journey that lay in front of you. What I clearly see now as I reflect on that time 20 years ago, was that it all could have been so much better, and it all looks so silly to me now.

So, what do you need to know in order to hire an attorney and survive the ordeal?

How can you avoid being emotionally bankrupt along with financially bankrupt? What I am about to share has nothing to do with strategy or cunning. It is only my advice on how you can keep your heart and soul intact and keep your sanity as well. So, as I said to my attorney after every phone call, fax, email and paperclip he billed me for, I told him that I wanted to send my kids to college one day; not his. Keep that on the forefront of your brain as you wade through the troubled waters of divorce and seek a divorce attorney.

Please state your intentions.

This should be the first question you ask a prospective divorce attorney. You cannot control what your spouse is going to do or say as it relates to his finding the right representation. But you have all the say as it relates to your hiring your own representation because you are not only representing you. That is the easy part. You are representing your children as well.

You most likely have never been through this before and are terrified as you lay vulnerable to a process that you have never imagined before. Go with your gut, even at the first handshake. You do not want to be his prey too. Ask him what his methods are? Do they match your motives and mantras? There are so many questions in dismantling a marriage and none of them seem natural.

A good attorney will advise you of what is not possible, just as much as what is possible. Because my husband changed attorneys three times, it felt like the goal post kept getting moved farther away. His attorneys all seemed to have convinced him that I was a bad person who never held an ounce of importance to him. They did this, of course, to keep him angry and to keep cutting them the checks. They also convinced him that our children who were 4 years old and 4 weeks old, were literally collateral that he could leverage. That was the hardest thing I had ever faced, and it almost completely undid me.

The dehumanizing nature of child custody and support and the fact that your children’s wellbeing is relegated to a decimeter calculation was more than I could bear. In one of the child custody hearings, I remember my actual hearing started to fade away. I could see people talking but I could no longer hear words. My ex husband never once raised his head as they went on and sliced up our children before my eyes.

I drifted back to a moment less than a year earlier when I was being wheeled out of the hospital after delivering my baby girl and the volunteers all telling us what a perfect baby she was. My life felt as complete as I could possibly imagine. I loved my husband; I loved my 4-year-old little boy and we were all going home together. The moment I was currently in came slamming back at me and I couldn’t believe that I was sitting in a strange courtroom next to a mere stranger and my family was being dismantled by a Judge I had never seen before.

I quietly asked my attorney if I could be excused? I got up and walked to the women’s restroom and vomited. It was a physical reaction to the utter disbelief of where my life had been taken. Nothing could have been farther from that moment in the hospital and no one should ever experience that. Especially a new mother.

Don’t forget that you both once cared.

I say this because there was a time that you both were on the same page and your ex-husband was present when the order for the babies was placed. When I look back at the chaotic times during our divorce, I see that much of it came from the attorneys. Oh, don’t get me wrong, the other woman in our life had much to say as well.  Her motivations were to take care of herself and her children. She didn’t need his money. She just needed the man beside her and to heck, with the wife, baby, and toddler he was also responsible for.

I could only see her as a woman capable of cheating with a man with a pregnant wife so there was no need for me to hold her to any high standards. But the attorneys had more knowledge than anyone on how to play the game and, played it they did.

Before them stood two people who were well out of their comfort zones and were complete sponges for anything to be absorbed into. This included creating the utter strangers we became to each other overnight. My husband may have been a mixed-up man who didn’t know how to be happy in my opinion. But he wasn’t a bad man. I never could have dated, let alone marry a bad man. That isn’t to make excuses for him. This realization has come over time so that I could better understand his decisions based on what I now believe to be his fears and insecurities.

We did have isolated moments during the divorce process when we were standing on the same team sideline. But those moments became fewer and fewer as the attorneys played us against each other as if we were in a prizefighting match. We soon lost track of what we were doing and why. The why was always, or at least should have been… our children.

I did not qualify for spousal support, so it was all about the child support. And soon that became a game. The percentage of time for him was all about the money it equated to. I never really understood that. He wanted to flee us and live with his girlfriend who lived 50 miles away. I was fine with that. Go. I never wanted to see them in my town anyway. But when you have children, and in my case very small children that matters.

I had a baby who was now being taken 50 miles away from me. And it no longer became about my discomfort… and believe me I died every other weekend that my children were taken to some women’s house that I had never even met. But it became about the wellbeing of my children. My parents who were from the greatest generation were horrified to see what was happening with their grandchildren. It just wasn’t in their realm of thinking that a father could do this to the mother of his children. I spent many hours consoling them as much as myself.

The attorneys and the Judge no longer looked at us as people. We were just a negotiation. Take the time needed to come together for your children outside of the attorneys. If we could have had a civil conversation centered solely around our children, I really don’t think we would have had to endure what amounted as cruelty to each other. He wasn’t a bad man. But his lawyer and girlfriend had agendas that outweighed his sense of decency which preyed on his weakness and the people who suffered the most were our children.

So, I share this so you all get a hold of the divorce process before it gets a hold of you and before you get as far away from the sacred moments of bringing your babies into the world together as you could possibly imagine. Don’t let that happen. Find a sliver of the reason you came together in the first place and do the right thing for your children. You are responsible for raising them and you owe your children this. The attorneys and Judges are not their parents and they will fade away as soon as all the dust has settled.

We all have regrets.

I can’t think of anything in my life that I regret more than having to go through a divorce and be a single parent. There isn’t anything in my upbringing that prepared me for that. But what I know for sure 20 years later, is that if he and I had first calmly sat down and outlined our own ground rules and reminded each other that there was a day not that long ago, that we did love each other and that we were friends then maybe, just maybe we could have taken the reigns to that horrible experience away from the attorneys, judges and even girlfriends and navigated the choppy waters with the north star of our children in mind.

Maybe then we all would have suffered less. I don’t know for sure, but I want to remember that my ex-husband was my Best Friend at one time and trusted him with my life and the lives of our children.

Choose wisely so that one of the regrets you have in divorce, isn’t the attorney that represented you. And your children, though tough as divorce is on them, are spared the taffy pull that can last a lifetime for them and which can become fully ensconced into their blueprints. Give them a chance to be as whole as possible by just choosing wisely your words, your actions and your attorney at the start. And remember you had a childhood. Let them have one too.

The post What You Need To Know In Order To Hire An Attorney And Survive The Ordeal appeared first on Divorced Moms.

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Can A Court Order for Post-Divorce Spousal Maintenance Be Modified?

Originally published by San Antonio, TX Family Law and Military Divorce Blog.

Yes, it can.  The Petitioner or Movant must file a Motion to Modify Post-Divorce Spousal Maintenance in the Court that made the initial order.  Procedures for filing an original suit apply, which means the former spouse receiving maintenance must be served with citation.

At an evidentiary hearing, the Movant bears the burden of proving that a material and substantial change has occurred such that the Movant no longer can longer afford to pay the Court-ordered amount.  In proving that a material and substantial change has occurred, the Movant must prove the facts and circumstances that existed at time of the original order and the facts and circumstances that exist now.

Whether the comparison proves to be “material and substantial” is determined at the judge’s discretion.  If proved, the amount of reduction is at the judge’s discretion.

Author Jim Cramp is a retired active duty colonel and the founder and principal attorney at the Cramp Law Firm, PLLC.  The firm provides a spectrum of family law-related services to clients in the greater San Antonio region, across the United States and throughout the world.  The firm specializes in Federal Civil Service and Military Divorce matters.

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



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How to enforce a child support order when the paying parent lives outside of Texas

How to enforce a child support order when the paying parent lives outside of Texas

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

One of the most helpless feelings that a parent can experience is being in a position where you are not receiving the court ordered child support that you are entitled to. This can leave you vulnerable to the ups and downs of your own income leaving you little wiggle room to plan and budget for your family. On another level, it can and should anger you because your child’s other parent is placing other responsibilities ahead of providing for their child. Having someone essentially tell you that your child isn’t that important can be extremely hurtful- especially when that other person is your child’s parent.

Make no mistake, you have options available to you if and when your child’s other parent does not fulfill their end of the bargain when it comes to paying child support. The most straightforward and practical option when it comes to bringing the violations of your child support order to the attention of a judge is called an Enforcement suit.

An enforcement lawsuit seeks to do exactly what it sounds like- enforce something, namely a court order. You would file this lawsuit just like a Divorce or Original child custody suit. The only difference is that this the second case under the original case number that you were assigned in your child custody/divorce case. In this suit you would be notifying the judge of the other parent’s violations of the child support order and can then request “relief” from the court in the form of money and possible jail time for your child’s other parent.

It takes effort and planning on your part to get to the point where you can successfully present your case to a judge. Before then you are just another parent who is not receiving the child support payments you are supposed to be. Sometimes taking that first step towards learning about child support enforcement cases is the most difficult step in the process.

What happens, though, when your child’s other parent does not live close to your child or even within the State of Texas? Is the process the same for parents that do live in-State? Today’s blog post from the Law Office of Bryan Fagan, PLLC will detail this subject.

People moving frequently is a reality in today’s world

As economies change, the job market changes as well. Gone are the days where a person is well guaranteed to grow up and live in one geographic location. Many times, people will up and move not only across a city but across the country for a variety of reasons.

Family courts cannot force you or your child’s other parent to reside in a certain place. However, a family court does have jurisdiction to limit where your child resides. Many parents choose to include what is known as a geographic restriction within their original court order. This geographic restriction often limits where your child can live to the county where your case was filed and any county that borders it. Family law language would term this as any county “contiguous” to the county where your case has been filed.

I have seen families in the Houston area use Harris County and any county contiguous to Harris. I have seen parents state that their child can live in Harris or Montgomery counties. I have even seen some parents state that the child must remain in a school district due to the excellent reputation of the schools. Whatever option is chosen, you need to know whether a geographic restriction is in place for you child and if so where your child can reside.

Getting back to the specific topic of this blog post, it happens that sometimes parents will cross state lines and begin to live in another state even if a geographic restriction is in place for their child. This parent is most frequently the non custodial parent- meaning that their child does not live with him or her primarily. There is nothing against the “rules” to do this. Again, a court cannot tell this parent where he or she can live. However, what it does do is open up the places where the child can reside. The reason being is that once the non custodial parent leaves the geographic region, so can the custodial parent and child.

Out of sight, out of mind unfortunately

Once your child’s other parent moves out of state it becomes an unfortunate situation that because he or she does not see your child as frequently their motivation to pay child support can  decrease a great deal. Maybe their move was predicated upon the promise of a job in the new location that did not actually come together as planned. Whatever the reason, if you are left waiting on child support from a parent that lives out of state here is what you need to know.

There are procedures in place that all states follow that allow for parents to enforce child support orders when the parent who owes child support resides outside of the home state. The Uniform Interstate Child Support Act (UIFSA) is the federal statute that contains the specific laws that pertain to this subject. In Texas the Office of the Attorney General is the governmental body charged with overseeing the complex child support structure in Texas.

You as the custodial parent would need to send the child support order to whatever body governs child support enforcement cases in the State where your child’s other parent resides. Then the order is reviewed and it will be sent on to the county judge where the other parent lives. It is in that court that child support enforcement cases are hard.

You may be asking how an out of state court would so easily enforce the child support laws of Texas. To answer this question you would need to know that UIFSA operates based on the legal certainty that the out of state court would honor Texas state law and the court in the other state would apply our laws to the process in whatever state the other parent is residing in.

What happens if the other parent does not pay

Whatever collection methods are approved by Texas law will be enforced in the out of State court. Garnishing the parent’s wages is a possibility if the parent’s employer can be found out. Missed child support payments can be made known to credit bureaus and liens can be placed on the property of that parent. Finally licenses like hunting, fishing, driving, commercial driving, etc. can be suspended for the failure to pay court ordered child support.

In extreme situations you can ask a Texas court to hold a non-paying parent in confinement for a period not to exceed 180 days or six months. Depending on the amount of child support that is actually owed this may be an option. Either way, an enforcement case is pretty straightforward in the sense that you must show the missed payments and the amount of money that is owed. There is not much the other parent can do to counteract your alleged proof of the violations.

Experience is essential when managing a child support enforcement case

If you intend to pursue a child support enforcement case against your child’s other parent it is in your best interest to become as well versed in the child support laws of our state as possible. If at all possible you should hire an attorney who has handled these type of cases before so that you can be as prepared as possible heading into the case.

After reading today’s blog post if you have any questions about the material that we covered please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations with our licensed family law attorneys six days a week. Whether you live in Baytown, Katy, Conroe or Tomball we work tirelessly on behalf of our clients and take pride in doing so. Before you rush into a case without much knowledge of the process or the law it is best to meet with an attorney who has been there and done that. The Law Office of Bryan Fagan, PLLC are those attorneys and we thank you for your consideration.

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



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order of protection

4 Things You Need To Know About An Order Of Protection

order of protection

 

Otherwise known as a restraining order, an order of protection is a legal document that limits the contact one individual can have with another. The laws pertaining to restraining orders are different in each state. In the state of New York, an order of protection is an order from the court that tells a person the amount of contact he or she can have with another person. It also states what he or she is not allowed to do to the other person.

The amount of contact allowed will depend on the case. In some cases, there will be some contact permitted, while in others, no contact will be allowed at all. An order of protection is meant to limit the behavior of the person who may threaten or harm to another individual.

Both family courts and criminal courts possess the power to institute an order of protection. Your divorce lawyer can assist you in this legal process.

How Is an Order of Protection Obtained?

Start by contacting your divorce lawyer, so they can help differentiate which orders of protection will work best for your specific circumstance. You will need a professional attorney to back you up in court.

An order of protection in a criminal court will be issued against this person who has committed a crime. Should they commit this crime, contact the police immediately. The terms and conditions of the order of protection will be determined in the Criminal Court.

To get an order of protection through a Family Court, you must have a particular relationship with the individual whom you are issuing an order against. Specifically, here are the relationships we mean:

  • Spouses (either current or former).
  • A family member who is blood-related or related by marriage.
  • Individuals who have had children together.
  • Having a current or former intimate relationship (this is more than a casual relationship, but does not have to be sexual. The court will determine the state of the relationship when given the details).

Make sure that before filing a case in court, you contact a legal professional that has your best interests in mind.

How Long is The Order of Protection Valid?

Initially, you may receive a temporary order of protection. When the case comes to an end, the court may issue a final order of protection. This may last anywhere from one year to several years depending on the case.

What Can I Do if an Order of Protection is Violated?

Violating an order of protection is against the law. Violation is considered a crime and should be reported to the police. You should contact your divorce lawyer in Plainview right away if your order of protection has been violated.

Can The Details of an Order of Protection Be Changed?

The court who issued the order of protection can make changes according to the details of the case. The court may add or limit child visitations. The court may also change the wording in the order such as changing “refrain from” to “stay away” or vice versa. The order can also be extended if needed.

Who Can Help?

Legal professionals can help you in filing for an order of protection. With the help of a top-quality attorney that specializes in family and matrimonial litigation, you can have all bases covered. You should not have to live your life in fear or discomfort with the looming thought that you’ll have to deal with a particular individual. So do not feel ashamed to reach out for help because you do have options. With the help of a divorce lawyer, you can ensure that you are getting as much space as you need.

The post 4 Things You Need To Know About An Order Of Protection 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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