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Want to resolve your Texas family law case outside of court? Remember these rules of engagement

Filing an Answer and proceeding with a family lawsuit in Texas

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

If you have been served with a petition for divorce or a Suit Affecting the Parent-Child Relationship, then you may have questions about how to proceed. It’s probably pretty clear to you that your spouse or the other parent to your child has filed a lawsuit against you, but after that, you are unclear on exactly what you should be doing. Do you need to file something yourself? Should you hire a lawyer?  If you were served with the papers at a park or in a parking lot is that legitimate?

My first piece of advice on this subject is to at all times remain calm. A process server or constable has been hired by your opposing party’s attorney to go to the courthouse, pick up the documents from the court and give them to you. This has the effect of providing you with legal notice of the lawsuit having been filed. If you are approached by a person with paperwork that looks important you should receive the papers. There is no benefit to running away, throwing them on the ground or refusing to comply. Your opposing party will get “credit” for serving you notice of the lawsuit no matter what you do at that point.

Another point that I would like to make is that your spouse will get credit for having served you no matter where you are served. Many people are served at their home. Some are served at work. Others are served at doctor’s appointments, family member’s homes or other places that they regularly visit. Your opposing party will coordinate this with their attorney and the process server. Do not be surprised to be served if your spouse has spoken to you about filing for divorce or for a child custody case.

Do not make assumptions about what the paperwork you are served with says

One thing that I have noticed that people tend to do after they are served with a Petition for Divorce is that they will immediately read and become frustrated with what they are reading. The legal terms that are used in a Petition are often utilized in different ways than we would use those same words in everyday conversation. So, while you may think a phrase or request means one thing- it likely means something completely different.

With that said, you can read through what has been handed to you- it is your case after all. But, until you speak to an attorney do not make any hard and fast assumptions or determinations about what has been written in those documents. Requests for attorney’s fees to be paid by you is a common request in a Petition. When you file your Answer to that petition your attorney will likely make the same request of your spouse. It is not something to get immediately upset about.

What happens with the timeline of your case once you are served with a Petition?

The timeline or “clock” begins to tick as soon as you are served. The process server will report back to the courthouse with a document certifying that you were served with the Petition on that day at the specific time you were provided notice of the lawsuit. From there, a couple of different things happen.

First, you now have twenty days to file an Answer. Technically you have until the first Tuesday at 10:00 after the expiration of twenty days to file your Answer. An Answer is your legal response to the allegations and requests made by your opposing party in their Petition. It is not a complex legal document, but rather alerts the court that you are intending to participate in the lawsuit and have responses ready to the allegations made in the Petition. Most importantly, by filing an Answer you keep the opposing party in your case from getting a default judgment.

As simply as I can put it, a default judgment is a legal judgment that your spouse can get from a judge if it is shown that you were provided notice of the lawsuit, were served properly and then never filed an Answer. In order to keep your having not filed an Answer from delaying the end of the case, your spouse can then proceed to court after 60 days to have the judge sign into effect final orders that were created by her. You are bound by those orders even though you never laid eyes on them. Therefore, filing an Answer is a very important step in your legal case.

What should your reaction be after getting served?

We have already talked about how you should react at the moment that you are served. Well, you should continue to act calmly and rationally after the fact, as well. Speaking to an attorney as soon as you can is a good idea. I always advise potential clients of the Law Office of Bryan Fagan to speak to a handful of attorneys in order to get a good idea of what the issues are, to learn as much about the process as possible and to get a feel for the attorney herself. Once you have interviewed enough attorneys to feel comfortable you can make arrangements to hire one.

The lawyer will take care of filing an Answer for you. However, he or she will certainly ask you for information about your family in order to not only file an Answer but to prepare for the next stages of your case. The attorney should inform you that your case is a marathon and not a sprint. You may want to take action immediately to address inconsistencies or “lies” in the Petition. You will get that opportunity, but it likely will not come in front of a judge- more on that later.

For now, you should enter the mindset that you are not going to contact your spouse unless you absolutely have to. Communication regarding your child is fine as long as you can be civil. You do not need to speak to your spouse if he or she is being uncivil or nasty to you. By the same token, you should not act that way towards him or her.

Consider not logging onto Facebook, Twitter, Instagram or any other social media until your case is over with. Family law attorneys are good at getting dirt on the opposing party and social media is a great place to look. For example, if you log into a social media account and say nasty things about your spouse and make this out to be World War III then that is information that certainly would be interesting to your spouse and their attorney. Do not give your spouse any ammunition to be used against you later. Work with your attorney, work to see your kids and play nice in the sandbox.

An alternative to filing an Answer: signing a Waiver of Service 

There is one other way to respond to your spouse’s Petition for Divorce that we have not yet discussed in today’s blog post. That would be signing and filing a Waiver of Service. If you and your spouse are on speaking terms, agree on whatever issues exist in your case, and want to work together from the start to finish your divorce as quickly as possible then you can sign a Waiver of Service.

A few items to consider before signing a Wavier of Service. First, you need to read the Waiver carefully. Usually, if you have already hired an attorney, he or she will advise against you signing the document no matter what it says. However, if you do not believe that hiring an attorney is necessary then a Waiver can be signed. This happens with some frequency in situations where you and your spouse have talked through the divorce in a detailed fashion and have agreements in place on all issues related to your case.

Most waivers tell a court that you have received the Petition for Divorce (thereby proving that you have notice of the filing of a lawsuit) but waiver your right to be personally served with the lawsuit. From there, you will provide your contact information to the court so that they can have it on record if official mailing from the judge has to be sent out for any reason.

Temporary Orders: What they are and what they mean to your family law case

Filing for divorce, being served and then having an Answer filed can be looked at as the first step in the divorce process. Step number two involves something called Temporary Orders. This is a step where the marching orders for you and your opposing party will be established during the duration of your case. It is important that you be able to either negotiate for or have a judge award a fair array of temporary orders because the final orders in your case tend to mirror the temporary orders to a great extent.

If your case involves children then the temporary orders will deal primarily with them. Visitation, child support, conservatorship, etc. will all be dealt with. These orders will be signed by you, your opposing party and the judge. In a divorce, issues related to bills, property, temporary spousal support and other circumstances specific to your case will be hammered out. Issues regarding the sale of your home or other property, as well as the allocation of debts,  will be determined later in your case.

Most of the time, family law cases in the temporary orders phase will be settled in mediation. Mediation is a process where you and your attorney, your spouse and their attorney and an independent attorney will come together to attempt to settle and negotiate your case. You will typically go to the mediator’s office and that attorney will put you in one room and your spouse in another (with your lawyers). The mediator will then bounce back and forth in between your rooms in hopes of reaching a settlement.

If a settlement is reached, the mediator will draft a document known as a Mediated Settlement Agreement (MSA). That MSA will be the basis from which the temporary orders in your case will be drafted. One of your attorneys will be charged with the responsibility to draft the temporary orders based on the language contained in the MSA. Both attorneys will typically look over the final draft and decide whether or not it fairly reflects the MSA. Once both sides are satisfied it will be signed and sent to the judge for their signature.

If no settlement, then a temporary orders hearing occurs

Tomorrow’s blog post from the Law Office of Bryan Fagan will center around Temporary Orders. This is a full-fledged hearing that allows you and your opposing party to submit evidence to a judge if a settlement cannot be reached in mediation. It is called a hearing but in reality, it is a mini-trial. A person who walks into the courtroom could not distinguish your hearing from a trial, anyway. If you are interested in what your temporary orders hearing could look like, then please head back here tomorrow.

Questions about family law cases in Texas? Contact the Law Office of Bryan Fagan

The attorneys with the Law Office of Bryan Fagan are honored to be able to serve the community that we work and live in. For us, learning about you and your needs is the basis for developing a strong attorney-client relationship. We hope that you have learned something from our blog post today and always encourage questions and suggestions about the topics we discuss here.

If you have any questions or need clarification on anything you read today please do not hesitate to contact our office. We offer free of charge consultations here in our office six days a week. These consultations are a great opportunity for you to learn more about your case and to have your questions answered in a comfortable environment. We look forward to meeting with you and serving your needs along with those of your family.

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



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Want to resolve your Texas family law case outside of court? Remember these rules of engagement

Safety, Substance Abuse and Mental Health: Helping yourself through a Texas family law case

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

Family law cases are among the most difficult of all areas of the law because of how intimate the subject nature is. True, you may not be worth millions of dollars like a multinational corporation but your family case deals with subjects that are more important than money. Your marriage, your children, your personal behaviors and that of your spouse are all relevant in a family case. While an investment banker’s work habits may require some embarrassing information to be disclosed in a trial, nothing compares to having to discuss your marriage to a room of strangers in a divorce trial.

Sometimes the material that is relevant in a family law case is more than just intimate or embarrassing. On occasion there is subject matter that relates to family violence, the safety of your children and even mental health disorders that become a huge part of family law cases. In these situations, you need to be able to know what to expect to encounter when dealing with problems associated with matters that are best kept private but are nonetheless relevant to your current family law case. Whether you are concerned for the well-being of your kids, yourself or even your soon-to-be ex-spouse I want to share some tips on how to handle these sorts of circumstances in your own family case.

What to do when you are worried about the safety of your children

If you find yourself worried about the safety of your children there is no time to waste in attempting to do something to remove those concerns from your life and theirs. Imagine being in a position where you had suspicions or thoughts about a hazard in your child’s life but did nothing to remedy that hazard. The next thing you know, something bad happens to your child and you end up blaming yourself for having identified a problem but having done thing to stop that problem from impacting your child.

This happens all too regularly with family law cases, I am afraid to say. For some reason our instincts as parents are inhibited by all of the hoopla associated with a family law case. This is ironic because at the core of what you are doing, no matter if it is a divorce or child custody case, is a desire to improve the lives of your children. The best advice that I can give to you is that you can improve your child’s life by addressing any concerns regarding safety immediately after you learn about them.

First and foremost, concerns about your child’s safety should be addressed by police and Child Protective Services (CPS). It is probable that the police will contact CPS anyways, but you should see to it that the police are aware of any concerns that you have for your child’s well being. If your child comes home from their mother’s house and tells you that her friend is acting inappropriately, your first step should be to talk to your child about any incidents that have occurred. Next, contact the police if that voice in your head tells you to. Better to be safe than sorry.

You need to know that if your spouse has a history with CPS, that will be an especially relevant bit of information that will need to be discussed with the judge. Family violence is a serious subject as judges want to, above all else, keep your children safe. Any words that you or your spouse use towards one another that could be construed as violent or threatening can and will likely be brought up again.

What does this mean to you on a practical level? Well, for starters, you need to get into the mindset that anything and everything that you say can be recorded and documented. This means those words can be taken out of context, potentially, and used against you and to the advantage of your spouse. Meaning: choose your words carefully. Especially choose how you text and email your spouse. Take a moment before responding to a particularly mean or nasty email to consider how your response can be utilized against you by your spouse.

Next, certainly never put your hands on your spouse for any reason. Even if you are justified in touching your spouse do not do it. Remove yourself from any situation that may rise to violence, animosity or anger. It is not worth it to you to be involved in any discussion that is heated. Use your attorney to convey difficult messages if you don’t believe that your spouse can be respectful of you and your opinions. Even if you are merely defending yourself, it can be a disaster to your case if you were to injure your spouse (especially if you are a man).

One thing that I have seen in recent years is people fighting over cell phones. Grabbing for a phone to see if someone has contacted your spouse or for any other reason can be dangerous. Mostly because those sort of actions can quickly escalate and lead to further use of violence or at the very least coarse language. Nothing contained in that phone is worth potentially losing time with your kids over- or even going to jail for. Be aware of your surroundings and do what you can to de-escalate any situation that you believe could lead to heated tempers.

Is protective order relevant to your situation?

A lot of clients ask about protective orders at the beginning of a child custody or divorce case. The thought being that one could potentially serve the purpose of de-escalating potentially dangerous situations. A protective order can serve a purpose when family violence has occurred in the home recently and that the violence is likely to continue but for the obtaining of a protective order.

If you get a protective order against your spouse that can be severely detrimental to his case in a divorce or child custody matter. You would need to decide whether or not to pursue a protective order that protects you and your kids or just you. While in today’s world we do not ordinarily consider these situations all that often, the fact is that men can be abused, as well as women. Think about all the information we are told about how women are reticent to come forward with details about abuse that they have suffered. The same can be said for men. Men are typically even less willing than women to come forward with details about abuse that they have suffered.

Handling issues regarding mental health in conjunction with a family law case

These are two subjects that come up all the time in family law cases. In some cases they are the primary reasons why there are child custody issues or circumstances that have led to discussions about divorce. Whether your spouse has been diagnosed with having a mental impairment or other mental health difficulty, or you suspect him or her of having a condition like this, mental health problems shine through brightly in many family cases.

Do you suspect your spouse of being bi-polar, having anxiety or being depressed? Some clients of mine in the past have commented that their spouse must be bi-polar considering how hot and cold he/she is. One minute they could be having a conversation together, and the next minute that same spouse could have grabbed a knife to attack our client. Behavior like this that is inconsistent and aggressive can be downright dangerous.

Another problem that clients frequently run into are issues related to a parent’s inability to take their medications as prescribed. The result is comments that relate to how good a parent your spouse might be when he or she is taking their medication, but if that medication is not taken as prescribed your spouse may be the most disagreeable person on earth. It is understandable to not want to take medication when those medicines cause you to feel out of sorts, but that concern needs to be balanced against the desire to keep your safe.

Finally, you need to speak to your attorney about your own history involving drugs and alcohol. The reality for many parents is that if there is a history of drug or alcohol abuse, you probably do not want to share those details with anyone. However, the worst thing that you can do is to keep that history a secret until a mediation or hearing date. Having your lawyer blind-sided by an opposing attorney who disclosed a history of drug and alcohol abuse is not a good plan to have.

Beware of back and forth bickering

Sometimes it is inevitable that you and your spouse will get into an argument. That happens even in the best functioning of marriages. Those arguments usually go nowhere and just leave everyone involved stressed to the max and angry that the discussion was ever started in the first place. Many times, we can see these discussions/arguments happening ahead of time and it takes a little bit of self-control to simply avoid them altogether.

There is nothing more awkward and potentially detrimental to your case to get into an elaborate game of bomb throwing in a courtroom. It typically will happen like this: both you and your spouse have allegations that the other acted inappropriately, was emotionally abusive or generally did something that was harmful to the kids. You then use your time on the witness stand to defend yourself and then hurl a few bombs her way.

What this ends up being is a back and forth game of unsubstantiated allegations. Instead of using your time productively to testify credibly for yourself and against your spouse, you are going to alienate your judge and distance yourself so far from the facts of your case that you may have trouble getting back on track. I have seen this happen many times in other cases and even in my own cases. Emotionally it may be satisfying to fire back at your spouse when he or she makes allegations against you, but in the long run that sort of behavior rarely if ever turns out to work to your advantage.

The people in your life that you trust are there to be your support system

We all have moments in our lives that require the support of others. Whether it is during a difficult family law case, a death in the family or the loss of a job, we cannot always be at our best. It is during those times that we rely on others to prop us up and support us. With that said, keep in mind that there is nothing wrong with doing so. At some point in the future it is likely that you can repay that person by being there for him or her when they need you.

Remember, also, that your mental and physical well-being matters. Staying in a marriage for the sake of your kids is noble, but ultimately self-defeating. Your kids deserve a parent who is at their best. You cannot be at your best when you are involved in a marriage that is emotionally

unfulfilling or worse yet- violent. We will discuss this topic when we pick up where we left off today in tomorrow’s blog post.

Questions about family law cases in Texas? Contact the Law Office of Bryan Fagan

The attorneys with the Law Office of Bryan Fagan would like to express their sincere appreciation for your interest in today’s blog post. We post articles like this every single day in order to share some of the knowledge that we can have gained through serving people in our community just like you.

In order to speak to one of our licensed family law attorneys about your case, please do not hesitate to contact us today. A consultation at our office is absolutely free of charge and can go a long way towards helping you better understand your circumstances and how to help your family and yourself.

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



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The Castle Doctrine as a Defense in Texas

Originally published by Family and Criminal Law Blog.

What is the Castle Doctrine and when might it apply in a Texas criminal case?

Texas’ so-called Castle Doctrine has become a topic of interest for people across the country due to the widely followed criminal case against Amber Guyger. Former Dallas police officer Amber Guyger was charged with murder after shooting unarmed Botham Jean in his apartment in 2018. At trial, off-duty police officer Guyger claimed that at the time of the shooting, she believed she was in her own apartment. Guyger lived exactly one floor down from Jean and was coming off a long shift. She claims she accidentally entered the wrong apartment, saw Jean’s silhouette and believed he was an intruder. She fatally shot her neighbor.

Guyger’s defense was multi-faceted, first requiring that the jury accept her assertion that she was operating under a mistake of fact. The jury had to believe that she indeed thought she was in her own apartment. Next, Guyger’s defense rests on the Castle Doctrine, which authorizes deadly force in the defense of yourself while on your property. Evidently, the jury did not accept Guyger’s defense, as she was convicted and recently sentenced to ten years. The case, however, raised interesting issues regarding the Castle Doctrine and when exactly it may prove successful.

What is the Castle Doctrine?

The Castle Doctrine is a term that describes the 2007 Senate Bill, which was passed to authorize the use of deadly forces under limited circumstances. The law states that if you are within your castle, which is defined as your home, business, or car, then deadly force used is presumed to be reasonable. The state bears the burden of proving beyond a reasonable doubt that the force used should not be deemed reasonable.

In the state of Texas, a defendant charged with murder or another crime of violence may be able to raise the claim of self-defense if they believed someone was illegally on their property; they reasonably believed deadly force was necessary; they did not provoke the person; and they were not engaged in criminal activity at the time the force was used.

In Guyger’s case, it is unclear whether the jury rejected the Castle Doctrine or the essential mistake of fact. Texas criminal defendants who acted in self-defense will want to ask their attorney about the castle doctrine to find out whether they may wish to raise this defense at trial.

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



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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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Texas Court Grants Grandparents Visitation and Access to Grandchildren

Texas Court Grants Grandparents Visitation and Access to Grandchildren

Originally published by Francesca Blackard.

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

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

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

 

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

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

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

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

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

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

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

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

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

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



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State of Texas: Poncho Nevarez’s cocaine controversy

State of Texas: Poncho Nevarez’s cocaine controversy

State of Texas: Poncho Nevarez’s cocaine controversy 1

Poncho Nevarez has a lot of influence at the State Capital. He leads the House Homeland Security and Public Safety Committee. He is also the vice chair of a select committee looking for solutions t…

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#MiracelsofFaith

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

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

Originally published by Robert Epstein.

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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



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Texas Parents Tell Lawmakers Of Devastation Of Being Wrongly Accused

Texas Parents Tell Lawmakers Of Devastation Of Being Wrongly Accused

Texas Parents Tell Lawmakers Of Devastation Of Being Wrongly Accused 2

There was gut-wrenching testimony at the State Capitol from Texas parents wrongly separated from their children by the State based on a misdiagnosis by medical professionals leading to child abuse

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#MiracelsofFaith

Texas parents falsely accused of child abuse seek legislative change in 2021

Texas parents falsely accused of child abuse seek legislative change in 2021

Texas parents falsely accused of child abuse seek legislative change in 2021 3

The committee is discussing the system of checks and balances between DFPS, the judicial system and medical professionals when abuse reports are submitted.

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#MiracelsofFaith

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

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

Originally published by Kelly McClure.

By

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

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

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

 

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

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

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

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

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

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

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



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