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common mistakes in child custody cases

5 Common Mistakes Made In Child Custody Cases

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common mistakes in child custody cases

 

Getting a divorce can be a taxing and tenuous task for all parties involved but can be even more so when your child is involved. When the couple split up in a divorce with a child, the issue of child custody comes up.

Child custody cases resolve who will take care, custody, and control of the child. This can be assigned to one or both parents. A parent with custody of a child takes care of their upbringing, education, place of living, and even scheduling time with the other parent if necessary.

However, no matter how your divorce case plays out, there are many mistakes you can make that can affect your custody case over your child. If you are dealing with a divorce or custody case and need a divorce lawyer, contact us at Simonetti & Associates to help represent you.

Common Mistakes in Custody Cases:

When in a custody case, you would want to do everything you can to achieve a favorable outcome. However, there are some mistakes that you can make that will sabotage your chances of a good outcome from your child custody case.

If you are looking for quality representation to help you in your custody case, finding the right divorce lawyer can make or break your case. Some critical mistakes made in custody cases include:

  • Getting too emotional– Losing your cool, yelling, threatening, or any other signs of violence can be used in the case against you and ruin custody rights you may have been able to get otherwise.
  • Abusing Social Media– Openly criticizing your spouse or bad-mouthing them on social media platforms will reflect poorly on yourself, and can be used against your case in court.
  • Forgetting to put your child first– The court will always prioritize what is best for the child over everything else, and you should do the same. Even if you do not like the other parent, if it would be best for your child to get some time with them then you should consider the options. Or if you want to move to another area, but doing so would harm the child’s life in some way, you may want to reconsider.
  • Manipulating the child– manipulating your children against the other parent will only make it more difficult for them to cope with the situation, which will impact your chances of a beneficial custody case.
  • Not working with a former spouse where you can– Divorces aren’t always easy or pleasant, but outright refusing to work with a spouse can reflect negatively on your abilities as a parent. No matter how you feel about your former spouse, you should try to be open about working with them to create the best possible solution for your child.

Why a Divorce Lawyer Can Help

Divorce cases can become complicated and emotional and can be very taxing on your day to day life while in one. But to get favorable custody, you should try to be calm, reasonable, and responsible. Working to assure the best possible future for your child is the goal of custody court, and should be yours as well.

A divorce is never an easy circumstance to face in life. Not only are you parting ways with someone who you once loved deeply, but you must face an assortment of issues that go along with divorce, such as custody battles.

During this deeply stressful time, it can be difficult to make important decisions with a clear head. That is why the help of a divorce lawyer is critical in helping you win your case and facilitate all important matters regarding your divorce. Take the time to find the best representation for your case so that you can walk away knowing that you did everything you could to reach a proper settlement.

The post 5 Common Mistakes Made In Child Custody Cases appeared first on Divorced Moms.

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

Community Property issues in Texas family law cases

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

Premarital and Marital Property Agreements are contracts between you and your spouse or spouse-to-be that can have a great deal of importance. A signed, written agreement between the two of you that allocates debts and property into either the community or separate property column will determine how each piece of property is treated in the event that your marriage ends in a divorce. We hear about premarital agreements or “prenuptial” agreements all the time in the media when rich, famous people get married. However, these sort of agreements are not just for the uber-wealthy.

A premarital agreement will go into effect the day that your marriage begins. Most people that enter into these agreements do so to limit the amount of property or debt the community estate will accumulate over the course of their marriage. On the other hand, if you and your spouse were to enter into a similar agreement during the course of your marriage it would be known as a marital property agreement. Essentially both documents are the same, it is just a matter of when the agreement comes into being- before or after the marriage has started.

How a premarital or marital property agreement works in the context of a divorce is that whichever spouse files for the divorce will reference the property agreement within the Original Petition for Divorce. When it comes time for the final orders of your divorce to be filed at the conclusion of your case, a copy of the agreement will typically be attached to those orders as an exhibit for reference purposes.

How is community property divided in a divorce?

If you and your spouse have not entered into a premarital or marital property agreement, then it is the responsibility of the judge to divide your community property and debts. That is, the judge must divide the property in the event that you and your spouse cannot agree to do so in mediation or in an informal negotiation settlement conversation. Keep in mind that although Texas is a community property state, debt and property does not have to be divided 50/50 between you and your spouse. Factors like the size of each of your separate estates, fault in the breakup of the marriage as well as your income will weigh on a judge if he or she must divide your community estate.

In many cases, the community property that you and your spouse own cannot be divided straight down the middle. Let’s consider the most commonly divided large item of property that you and your spouse could have: the marital house. The easiest route that you and your spouse could go would be to sell the house and split up the equity that you would get after the mortgage and other costs of the sale are taken care of. There is relatively little hassle in doing this and allows both you and your spouse to wipe your hands clean of this asset and move on.

However, that is all true when you take the sale of the house in a vacuum. Consider what could change if you and your spouse have a child together. In many cases, a judge will award the family house to whichever parent is named the primary caretaker of your child. Obviously, it would have to be shown that this parent can afford the mortgage payments on their own. The reason a judge would order this would be to allow your child to have some degree of stability and consistency by remaining in the family home after the divorce concludes.

If you are the parent who is not awarded the right to be the primary caretaker of your child then you may be wondering where this leaves you. Would a judge really order you to leave the house, not award you primary responsibility for your child and then not allow you to gain any monetary benefit from the house? The answer to that question is, no.

Many times what a judge will order is that the house should be sold as soon as your child turns 18 and the sale proceeds will be split between you and your ex-spouse at that time. Or, you may be able to exchange any equity in the house for another piece of property in the community estate that could equal the value. For example, if there is a classic car that was purchased during the marriage that roughly equals your equity position in the home, that vehicle could be awarded to you.

The thing to keep in mind is that while a judge will do their best to divide the community estate in an equitable fashion, no judge is perfect. It is an impossible task to ask a judge to learn your family dynamics well enough over the course of a one or two day trial to do a perfect job of dividing the community estate. This is why we encourage people like yourself to do everything that you can to attempt to settle your case in mediation rather than to leave the decision up to a judge.

Will you have to pay spousal maintenance in your divorce?

Simply put, spousal maintenance is a payment that is ordered by a judge to be made from your future income to support your ex-spouse after your divorce has concluded. Although it is not a term that is officially used in Texas, many people know of this relationship as “alimony.” You and your spouse can agree to some degree of spousal maintenance in mediation, so don’t think that you have to go see a judge if you want to push for spousal maintenance payments.

Spousal maintenance is typically ordered towards the benefit of spouses that lack sufficient property to provide for their minimum basic needs. The key is that you and your spouse need to have been married for at least ten years in most cases for a judge to be able to order that you receive spousal maintenance. Other circumstances that could lead a judge to order that you should receive spousal maintenance is if your spouse has engaged in acts of family violence against you in the two year period prior to your divorce or you or your child have a disability that negates your ability to work outside of your home.

How much spousal maintenance can be awarded in your divorce?

A judge has limits to how much in spousal maintenance can be awarded in your case. Additionally, a judge can only order that spousal maintenance payments be paid for certain periods of time depending upon the length of your marriage. Your judge will need to determine how much money you would need to meet those minimum, basic needs that we just finished discussing. Either way, a judge cannot order that you receive more than $5,000 per month or 20% of your spouse’s gross monthly income in spousal maintenance. Your spousal maintenance award will be limited to certain periods of time unless you can present evidence that shows due to an incapacitating injury or physical impairment that you would be unable to earn an income to support yourself.

How issues related to your child can impact your divorce

Your Final Decree of Divorce will be the final orders issued in your divorce case. These are the marching orders that you and your ex-spouse will need to follow until you come back and have those orders changed/modified, if you do that at all. Part of those final orders will be a section that covers a Parenting plan for you, your ex-spouse and your children. The conservatorship designation of both you and your ex-spouse, a visitation schedule, child support, medical support and any other issues relevant to your family will be detailed in this section.

The reason why so much detail is put into a parenting plan is to, in theory, minimize the risk that you and your ex-spouse have as far as disagreements and animosity that surrounds co-parenting in your post-divorce life. Of course, this may not be the case for you and your ex-spouse but the intention is to lay out a clear cut path for your parenting to take in hopes to creating some sense of post-divorce harmony. If issues arise in the midst of that post-divorce life there are steps you can take to correct those issues- more on that in a later blog post.

How long does the parenting plan/child support plan go into effect for?

A family court in Texas has the ability to enforce orders regarding your child until that child graduates from high school or turns 18- whichever occurs later in time. In the event that your child has a physical or mental disability that requires that he or she remain in the home for a longer period of time, the court will likely continue in its authority to enforce child support, custody and visitation orders until a later date.

When we talk about custody of a child in Texas, we are really talking about who is able to get physical possession of your child and on what basis. The word “custody” actually does not come up in the Texas Family Code, but it is a term that is used so much in our society everyone involved uses it with regularity. For the most part, you and your spouse will share in custody rights and duties associated with your child.

If it comes down a trial, the judge will need to make decisions in relation to custody of your child that are in that child’s best interests. A joint managing conservatorship is one where you and your spouse share in the rights and duties of raising your child on an even basis. The only rights that will differ significantly are the rights to determine the primary residence of your child as well as the right to receive child support. Only one of your can do those things associated with raising your child.

In rare instances, either your or your ex-spouse may be named as a sole managing conservator of your child. If there is a history within your family of family violence, child abuse/neglect or a protective order has been issued against either of you, then the sole managing conservator designation would be appropriate. Basically, the sole managing conservator is able to be in physical possession of your child much more and also holds more of the rights and duties associated with parenting your child on a daily basis.

A court would also look to whether or not you or your spouse have been absent for long stretches of time from your child’s life or if there has been a great deal of conflict in your relationship with your child and/or your spouse. The parent who is not designated the sole managing conservator of your child does not lose all of their rights, but their rights are curtailed because it is believed that doing so is in the best interests of your child. The sole managing conservator specifically has superior rights when it comes to making decisions for your child in regard to educational and medical issues.

Questions about divorce in Texas? Contact the Law Office of Bryan Fagan

We were able to cover a lot of information about divorce in Texas today. If you would like to ask us any questions or need us to clarify any of the points that we made please do not hesitate to contact the Law Office of Bryan Fagan today. We offer free of charge consultations six days a week with our licensed family law attorneys. These consultations are a great opportunity to ask questions and receive feedback about subjects that are important to you and your family.

Our attorneys and staff take a great deal of pride in being able to work with clients from across our area in the courtrooms of southeast Texas. We aim to always provide excellent represesntation of our clients while maintaining a strong sense of integrity and customer service. Contact us today in order to find out more about how we can assist you in your family law case.

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



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Grand Jury: College Cheating Scandal Ties Real Estate Scam to Corruption in California's  Divorce and Custody Cases

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Mitchell Papers and Protests Lead to Indictments 

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​For people who have lost their homes and their children due to a California divorce or custody case in the past two decades, it might not come as a surprise that a federal investigation into a college cheating scandal that snapped up power couples including Elizabeth and Manuel Henriquez of Atherton, CA  as well as  celebrity moms Lori Loughlin and Felicity Huffman is now connected to real estate scams and criminal lawyers operating in the state’s family courts. it is also connected to one grand jury investigation of Contra Costa County Assessor Gus Kramer, and here is how courts are covering up what they are doing in California when it comes to family homes.. . . . . . . 

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After accepting plea deals,  the Henriquezs are rumored to be consulting with divorce attorneys at McManis Faulkner and Hoover Krepelka Law Firms. The cheating scandal is rumored to be a ” boom for Silicon Valley divorce lawyers”.  Sources report Silicon Valley divorce attorneys have been overheard  discussing new potential clients flooding into their offices and how these lawyers are planning on ratcheting up overbilling and deceptive business practices that will include: duping clients into private judging cases and kissing up to get court appointments as minor’s counsel and custody evaluators in divorce or custody cases. 

REAL ESTATE SCAM EXPOSED: Contra Costa County Assessor Gus Kramer Indicted Exposes DA Office and Supervisor Corruption 

While seemingly unrelated, the indictment and disbarment of Contra Costa County DA Mark Peterson appears to have unraveled systemic corruption in California’s  courts and politics that reveals  systemic failures that have harmed families and two generations of children. 

A former Contra Costa County Grand Jury involved in a CPS investigation, provided an off record account of how a grand jury investigation linked public corruption in Solano, Contra Costa, Santa Clara and Orange County to lawyer- doctor and former Contra Costa Supervisor Jeff Smith, who is now the county executive in Santa Clara County: 

May 2018- Grand Jurors were first alerted to problems when parents marched on the streets of the sleepy Bay Area bedroom community of Walnut Creek. No arrests were made , but over 500 parents picketed, marched and protested from a community park to the steps of a courthouse where they claimed corrupt CPS workers and three female judges were involved in trafficking children after  their  parents were forced through a corrupt court system. Judges at the focus of the march were Fannin, Hardie and Haight . 

Summer 2018- Judge Bruce Mills,  reportedly been on the take for bribes delivered in  the form of real estate deals and cash kickbacks assured by nefarious slumlord   John Evilsizor , resigned  from the Contra Costa bench after the CJP closed in on Mills in a 5th investigation related to the improper jailing of Evilsizor’s former son- in-law in a custody case Mills presided over for several years. 

This was also the time when parents returned to Contra Costa and marched on the streets of Martinez, through the downtown ,  civic center, the steps of the courthouse and where they pounded on the doors of the District Attorney’s Office, despite DA Mark Peterson having been indicted, disgraced and disbarred  a year earlier. 

September 2018- it was revealed that DA Mark Peterson had been working to catch and kill complaints about county assessor Gus Kramer, a corrupt politician who  reportedly turned a blind eye when it came to real estate complaints arising from the county’s family court cases. 

February 2019- Parents had garnered enough support to get the recall of Judges Hardie, Fannin and Haight  on the local ballot, but an attack and complaint filed to the FPPC  by a judge lobbyist derailed the plan. The lobbyist reportedly focused on the Contra Costa group because of the wide spread media attention the group got, and following the landslide vote in Santa Clara County, that had recalled Judge Persky on June 5, 2018, after a successful political campaign was led by Stanford professor Michele Dauber. 

                                    HOW THEY GET THE FAMILY HOME 

Converting home equity into cash for attorney fees in divorce cases was something that had been mastered in Santa Clara and San Mateo counties, but Contra Costa was late to the Silicon Valley home equity party, given its more remote location and longer commute to the Google, Facebook and other tech giant campuses. 

As parents picketed and protested in Contra Costa, they fought judicially corrupt family courts in Solano County by launching a recall of Judge Carringer in 2017, which did not go to vote, and which was turned into an impeachment request to the State Assembly in April of 2018. 

It was in Santa Clara County, where Jeff Smith hung his new employment shingle, that Stanford University Law Professor Michele Dauber launched a successful political campaign to recall Judge Aaron Persky. It is said that from 2016- 2018 Dauber had the help and assistance of DA Jeff Rosen, DDA Terry Harman. Alah Kinerci, Cindy Hendrickson and Luis Ramos, but she also had the help of executives at Google, Facebook and Twitter based on connections her husband Ken Dauber had as a Google executive serving on as a Board Member on the  Palo Alto School District. It is also believed that Dauber had assistance from the Supervisors, Cindy Chavez, Joe Smitian, Ken Yeager, Dave Cortese and Mike Wasserman, who allowed DA Rosen to let angry #metoo mobs drown out parents seeking to bring attention to the county’s unscrupulous judges including Judge Maureen Folan,  Judge Vincent Chiarello, Judge James Towery, Judge Mary Ann Grilli, Judge Julie Emede, Judge Roberta Hyashi, Judge Beth McGowan, Judge McCracken, Judge Cynthia Lie,  and Judge Stuart Scott. 

By early 2017, court clerk David Yamasaki had moved from Santa Clara’s courts, to Orange County, where he was reportedly working to cover up construction fraud and family court fraud arising from the county’s private judging cases before retired Judge David Weinberg, Judge Moss, Judge Larsh  and Judges employed through JAMS . No recalls had occurred in Orange County however former DA Tony Rackauckas was ousted by voters who put Todd Spitzer in the DA’s office as voters demanded Spitizer begin looking at the county’s family courts and real estate scandals rising from the family courts. 

                   Grand Juror Leaks Investigation Techniques

” We interviewed the parents and protest organizers” , explained the former Contra Costa Grand Juror, ” That led us to issue the CPS report by the summer of 2019″ 
A copy of the report can be seen at this link. 

“Simultaneously  we looked at the county assessor where these corrupt real estate deals appeared to be being concealed and protected. We knew Gus Kramer had an alliance with the former DA Mark Peterson, and once Peterson was disbarred and indicted, Kramer had no more shield, so we nailed him.”​

As to the systemic corruption, the former Grand Juror had this to say: 

” Look we know it is bad, but we are not the worst. The worst corruption is coming from Santa Clara and Orange Counties. The State Bar, and all of the watchdogs charged with protecting the public are afraid to touch those counties, after all, they have planted Google. Facebook and Twitter investors, founders and shareholders in their courts, contracts and Supervisor’s pockets.

“It was an interview we did with a former hospital employee who was familiar with Jeff Smith that made us realize how dangerous Santa Clara County has become and we just couldn’t go there”. 

Mitchell Papers:  Real Estate Corruption Linked to  Family Court Lawyers and Judges

Before ending the interview, the former Grand Juror noted they had reviewed what are being called the Mitchell Papers. The papers show cash payments made to cops, judges and lawyers like something out of a Chicago mobster movie. The local bar association appears to be the shell organization feeding the enterprise where billions, NOT millions, of dollars are being converted in family law cases to pay lawyers who are paying off judges, private judges and other lawyers by paying down home equity lines of credit on the homes, rental properties and vacation homes of those operating what is clearly a criminal enterprise.  

For example, the county assessor in Santa Clara, Larry Stone,  is known for his flagrant extra marital affairs, yet the grand jury,  DA and Supervisors have left Larry Stone alone. Stone, who started out in small level government in Sunnyvale, became obsessed with power and connections to the Democratic party in the county. A party that essentially runs the state.  Stone also continued to flaunt his extra martial relationships which have been actively concealed from his wife by Walter Hammon’s wife, Meri Maben, and newly elected Supervisor Susan Ellenberg. 

Stone, who is nearly 80, had a home nearly paid off, but now carries a $600K loan. It is rumored that Jeff Smith’s right hand man, Steve Preminger, assures these loans are paid off with deferred payments when nobody is watching, and it is divorce attorney Walter Hammon who is brining in divorce clients high level Silicon Valley connections at YouTube, Paypal, Facebook, Google Twitter , Nvidia and even the Department of Justice that makes sure this enterprise remains in tact and meeting bribe and payment obligations. 

Steve Preminger, Jeff Smith’s top aide,  was recently reported as working with tech and social media executives  to assure Santa Clara County Supervisor Dave Cortese could knock out his political opponents by shadow banning social media accounts and burying political adversaries or court reform candidates in search engines powered by Google. 

In closing, the grand juror noted: 

“All local governments have the potential to be corrupted. When the grand jury doesn’t look, the DA’s don’t indict and the Supervisors or city managers are complicit, the courts will be corrupted and people will rise up and march in the streets as they did in our sleepy little town of Walnut Creek. We tried to do something about it, I hope it wasn’t too little , or too late.”

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Spousal Maintenance Awards in Texas Divorce Cases

Spousal Maintenance Awards in Texas Divorce Cases

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Originally published by Robert Epstein.

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A court in a Texas divorce case may only order spousal maintenance if certain conditions are met.  The court must then consider relevant factors in determining the duration, amount, and manner of the payments.  The other spouse may challenge a maintenance award if there is insufficient evidence to support a finding of eligibility for maintenance or if the trial court abused its discretion in ordering the specific award.

In a recent case, a husband challenged a maintenance award and the property division in his divorce.

Under Tex. Fam. Code Section 8.051, a spouse may receive spousal maintenance if he or she cannot earn enough income to meet his or her “minimum reasonable needs” due to certain specified circumstances.  In this instance, the applicable provision of the statute provides that a spouse may be eligible for maintenance if he or she does not have the ability to make sufficient income to meet his or her minimum reasonable needs and has been married for at least 10 years.

Maintenance is generally only available under this provision if the spouse has been diligent in trying to develop skills to provide for his or her minimum reasonable needs during the separation and while the divorce case is pending, but this is a rebuttable presumption.

The husband argued the court had not made sufficient findings regarding the wife’s minimum reasonable needs to support its maintenance order.  The court considered several factors and found the wife earned $76,000 per year from working full time.  The court also found good cause to require the husband to pay $1,500 per month in spousal support from March 2018 to May 2021.

The appeals court found the express findings made by the court supported an implied finding the wife was eligible for a maintenance award.  The appeals court also found evidence in the record supporting the implied finding.  The wife had testified she needed the support to adjust to maintaining a household and improving her career.  She also provided a budget showing her monthly expenses exceeded her gross-monthly income and the child support she received.  The appeals court found this evidence was sufficient to show that her combined income and child support did not meet her minimum reasonable needs.

With some evidence supporting a trial court finding the wife had rebutted the presumption against maintenance, the appeals court could not find the trial court had abused its discretion.

The husband also argued the evidence did not support the amount of the award based on the statutory factors in Tex. Fam. Code Section 8.052. Under the statute, courts are to consider several factors in determining the amount and duration of a maintenance award.  In this case, the trial court considered those factors.

The appeals court found evidence supporting the statutory factors.  The wife had spent most of the 19-year marriage supporting the husband in his education and career.  She testified she had worked part-time for several years so she could be home with the children.  She had to increase her hours since the divorce case was filed.  She testified she would have a hard time finding a similar position locally if she lost her current job and that her employment was limited by the geographic restriction on the children’s primary residence designation. She also testified to having a serious medical condition.

There was evidence the husband made approximately $193,000 per year.  They had used their retirement to buy their first house. The appeals court noted the husband had been able to fund his accounts in the years since, but the wife had not. The wife testified regarding her lack of retirement savings, and there was evidence of an account in her name with $15,325.91.

The appeals court found there was evidence relating to the statutory factors the trial court could have based its determination on regarding the amount and duration of the maintenance payments. There was no abuse of discretion as to the amount, manner, or duration of the maintenance award.

The husband also argued the trial court abused its discretion in awarding the wife 70% of the community estate.  The divorce was granted on the grounds of insupportability.  The wife had spent most of the marriage caring for the children as a homemaker and supporting the husband’s pursuit of his own education and career.  The appeals court noted that the wife’s job and the geographic restriction limited her ability to obtain other employment. Furthermore, most of the assets she received in the property division were not liquid.  She would not have immediate access to those funds if she or the children needed them. The appeals court found no abuse of discretion in the property division.

The appeals court affirmed the trial court’s judgment.

In this case, the appeals court found sufficient evidence to support the trial court’s order.  If you are facing a divorce, an experienced Texas divorce attorney will work with you to identify the evidence to support your case.  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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Handling issues related to the Right of First Refusal in Texas family law cases

Handling issues related to the Right of First Refusal in Texas family law cases

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

The right of first refusal is an issue that comes up in family law cases that can cause even the most creative and experienced family law attorney to scratch their heads on how to proceed. Essentially, the right of first refusal allows a parent who is not entitled to possession for a specified period of possession to be able to take possession of the child if the other parent is not able to do so. Allow me to provide you with an example of how this situation could arise in real life.

Suppose that your ex-husband is scheduled for a visitation period with your son beginning at 6:00 p.m. on this Friday and ending at 6:00 p.m. on the following Sunday. In the morning on Thursday, he receives a phone call that alerts him to the fact that he will need to work this weekend. Since your divorce decree contains a right of first refusal, he must contact you as soon as he becomes aware of this scheduling conflict and provide you with your right to refuse visitation that is offered to you. You have the option to take possession of your son this weekend even though the divorce decree states this is your ex-husband’s weekend for possession of him.

We also see issues that arise when parents like yourself begin dating again after a divorce has concluded. If you are not able to take possession of your child for a weekend visit, you may want your girlfriend to be able to pick your child up from his mothers’ home and then drop him off the following Sunday. Since you are able to designate an adult to pick your child up in the event that you are unable to, what’s the harm in having that same adult care for your child during a weekend that you’re not able to see him? Your girlfriend may really want to see your child, and after all- it’s your weekend so it should be your call, right?

How is the right of the first refusal defined in your custody orders?

This is the first question that we need to ask ourselves in relation to your particular circumstances. If you are considering whether or not to include a right of first refusal in your child custody orders, you and your attorney need to first think about how that term is going to be defined and applied as it pertains to your family. What is the specific period of time that a parent cannot be with the child that will cause the right of first refusal to be triggered?

You may be able to negotiate that if you or your new spouse is unable to be present with your child during a period of possession (sometimes lasting between four and eight hours), then you must contact your ex-spouse and allow him or her to come and pick up your child for that certain period of time. Whenever the predetermined/agreed to amount of time is over, your ex-spouse would then return your child to your home and allow you to complete your period of possession as scheduled.

Even when you get specifics as this handled, you need to consider the effects of including that kind of language in your order. If your ex-spouse gets home from work at 12:00 a.m. do you have to get your son dressed and over to the other parent’s house within the hour? That would seem impractical and not necessarily in your child’s best interests, but strict language regarding the right of first refusal could theoretically make this a necessity. A compromise could be that if the parent were to become available to possess the child at a time after 9:00 p.m., the parent in possession of the child on a temporary basis could wait until 9:00 a.m. the following day to drop the child back off at the other parent’s home.

The other issue that we need to discuss is what your child would be comfortable with as far as a substitute adult to possess him or her when you or the other parent is not available. It sounds ok enough for you to have your mother, father, aunt or girlfriend available to watch your child for half a day when you have to work unexpectedly. However, if your son doesn’t get along with any of those people then it would not seem like it would be in his best interests to leave him with any of those folks. Unless you and your child’s other parent have a group of people that are able to care for your child in these situations then a right of first refusal may not be a wise thing to include in your orders.

How will extracurricular activities be handled?

In this day and age, there are camps, classes, training sessions, and other activities for any sport or extra-curricular event under the sun. Odds are decent that you and your ex-spouse may not see eye to eye on your child’s potential or the role of these activities in the life of your child. For instance, you may believe that your child should only be involved in extracurricular activities to the extent that they can make friends and build their self-confidence. However, your ex-spouse may believe that these additional activities are essential for the development of your child and that he or she has the potential to become a professional ball-player, musician or dancer. How can this fundamental disagreement be solved?

I have seen some families achieve success when each parent is allowed to select one activity for their child to participate in each semester of school. The costs for activities would then need to be divided up in some manner between parents. Additional activities (camps, classes, etc.) would be paid for by the parent who selected that activity. Transportation to and from activities would also need to be determined. If you and your ex-spouse earn similar incomes the costs could be split evenly. Otherwise, a proportionate split may be more appropriate.

Another issue that may be relevant to discuss for your family is whether or not both parents may attend practices or rehearsals. If you and the other parent can be around one another without issue then this is not a problem. However, if you all have shown an inability to be in close proximity to one another you may have to limit attendance to the parent who paid for the camp or activity. Both parents in most cases can attend performances and games, no matter what parent is in possession of the child on that particular day.

How will you be reimbursed for uninsured medical costs?

As a part of any child custody order, you or your child’s other parent will be made to be responsible for providing health insurance for your child. Whether it is insurance provided for by one of your employers, insurance through the private marketplace, Obamacare or Medicaid, your child will need to be covered. One of you will pay for that insurance or will reimburse the one who pays for medical coverage.

However, not every cost that your child will incur for medical treatment will be covered by insurance. These are called uninsured medical costs. Suppose that you take your child to a pediatrician appointment and he orders a test for your child that is not covered by insurance. Once you receive a bill for that test you would need to submit the bill to your child’s other parent so that he can pay you back for the test you paid for (in the event that it is his responsibility to pay uninsured medical expenses).

What I will advise clients to do is to negotiate to include a deadline by which medical bills have to be submitted for reimbursement purposes. For instance, a provision in the order that specifies how much each parent has to pay towards uninsured medical costs, as well as a deadline to submit the relevant bill to the other parent, is a good idea.

I would tell you that it is common to have parents agree to split 50/50 uninsured medical costs. Since it is usually the primary conservator who takes the child to the doctor or for unscheduled visits to hospitals and such, it will be that parent who has to pay the bill upfront. What I tell parents in this position to do is to set up a reminder on their phone to submit bills by the end of the month to the other parent to be reimbursed, However, a good practice is to simply scan and email the bill to the other parent as quickly as you can. That way you have a record that the bill was submitted and you can be paid back as quickly as possible.

Issues related to military parents

If you are the primary conservator of your child and have been deployed overseas as a member of our military, you have the ability to designate an adult to exercise your possession and conservatorship rights while you are overseas.

The law in Texas is there is an order of preference as far as assigning that right. For example, you should first give preference to the other parent. That other parent would not normally have the right to determine the primary residence of your child, but you could allow him or her to act in that capacity for as long as you are overseas and unable to do so yourself. However, if selecting the other parent to take these rights on a temporary basis were not in the best interests of your child, then a nonparent may be chosen instead.

Special provisions for special needs children

When you are involved in a case with a special needs child then you and your attorney will need to pay especially close attention to the rights and duties that you and your opposing parent have in relation to that child. There are likely aspects of your special needs child’s life that are extremely important to spell out in the order. Unfortunately, a “typical” child custody order will not do so. You all need to take the extra step and include provisions to protect that child’s interests and well-being.

Both you and your child’s other parent will need to be able to provide to one another more detailed information regarding the child’s educational, medical and psychological needs. Trading information and updates may be difficult for you all if communication is not your strong suit. As a result, it may be necessary to have some special orders included in the parenting plan that requires you to share updated medical information with the other parent on an as-needed or regular basis.

You would need to come to terms with what your child’s specific needs are and then determine how frequently updates need to be provided to each other. If your child sees the doctor on a weekly basis, and you are the parent who always goes to the appointment, it may be necessary for you to provide a weekly update to your ex-spouse on your child’s condition via email or another electronic means.

More information on special needs children to be provided in tomorrow’s blog post

The issue of special needs children is an important one. As such, we will continue today’s discussion in tomorrow’s blog post. We will introduce additional topics related to special needs children that we have observed in our years of practicing family law in southeast Texas. If this is a topic that is relevant to you or your child, it is a good idea to head back to our blog tomorrow to read more.

In the meantime, if you have any questions about the material that we covered in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys are available six days a week to meet with you at no cost. These consultations are a great opportunity to ask questions and receive direct feedback about your particular circumstances.

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



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