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Emergency Guide: Temporary Custody or Protective Order Hearing

Emergency Guide: Temporary Custody or Protective Order Hearing

If you must represent yourself at a temporary hearing, use this guide as a starting point – not as an exhaustive guide. The proof required to get what you want in a Temporary Hearing depends on the nature of the pending suit, the local rules of the court (see links at bottom), and the judge. This guide may not be helpful for your case.

Study the local rules for the court where the hearing will be. Watch a hearing or two before yours to see how the judge conducts business. Read the TEXAS RULES OF EVIDENCE before observing one. See also Child Custody Laws in Texas.

Bailif, club this man

Theme

Objections are counted against your time so be careful about how much you use them.

 

You need a basic theme for what you are trying to prove. It is a very short paragraph, perhaps only a sentence, that explains what you want to accomplish and why. All of your evidence and arguments should relate to this theme.

For example:

My husband has been violent toward me, and he has a drug problem. I see how it affects the children, so I need to get away from him. He needs to get help, and I need protection so that he is not violent with me again. I also need fees for my own attorney.

Core proof required:

This may not be everything you need to prove in your case, but rather key things to think about.

Protective order: Violence has occurred. Violence is likely to occur in the future.

Custody: Best interest of the children.

Supervised Visitation: He is a danger to the kids’ physical or emotional health. Best interest of the children.

Attorney Fees example: He has complete control of the community funds. He hired an attorney using these funds. It’s not fair for him to have an attorney paid for and not me.

All of your evidence needs to support your theme or specific proof. Remove anything not relevant to those. You can add a little character evidence like “He is violent.”

Objections

If you are in negotiations to reach an agreement before trial, don’t let them talk about anything you said or offered.

 

Objections are counted against your time so be careful about how much you use them.

The most important objections are:

1. Objection, non-responsive

2. Objection, hearsay

3. Objection, settlement offer

4. Objection, relevance

Non-responsive means “shut up” if the witness is talking too much or “answer me” if the witness refuses to answer or evades. Non-responsive is usually a time-saving objection.

Hearsay is an out-of-court statement made to prove what the statement asserts. Object to any “He said/she said” statements. Object to any offer of documents into evidence as hearsay unless you want them in evidence. Avoid objecting to Business records that opposing counsel has proved up. See, “How to admit business and medical records with a witness” below. If opposing counsel offers many documents into evidence and you are overruled often, then you may want to stop objecting. Follow the judge’s lead by looking at the facial expression and tone of voice. Be respectful.

You will get overruled a lot because temporary hearings have a lower standard for admittance. I rarely object to anything, but an attorney is more likely to offer inadmissible evidence with an unrepresented party. Documents are a major source of evidence attorneys will try to sneak past you and the most common objection to documents is hearsay.

Always have three copies of everything you want to introduce.

 

When someone objects to something you say as hearsay, use these answers:

1.    Statement of a party. You can testify about anything you heard the other party say.

2.    Offer to explain the reasoning not the truth of the statement. Often what someone says is a lie, or it does not matter whether it was true because you only care about the effect on the person who heard it.

3.    Excited utterance. Someone said something in an exclamation soon after it happened.

Judges usually allow hearsay statements with the explanation that it’s not used for the truth but to explain the reasoning or reaction. Use this only for important things that really do explain your reasoning or reaction. For example, if CPS said, “Keep him away from the kids,” that is hearsay, but it can be used to explain your reasoning. “I’m not keeping the kids away to be mean. I’m keeping them away because CPS told me to.” It doesn’t matter if CPS was wrong.

If you are in negotiations to reach an agreement before trial, don’t let them talk about anything you said or offered. For example, “Didn’t you tell me yesterday that the baby does better with Mom?” If that was said while trying to reach an agreement, then object with settlement offer.

If the other side objects to relevance, say that along with other evidence it shows the parts of the theme. For example, “This, along with other evidence I will present, will show why I should get fees for my own attorney.” Relevance objections get overruled a lot.

Final thoughts on objections

Attorneys have answers to objections ready for things they know are going to be objected to. For example, you know there will be a hearsay objection if you talk about what CPS told you. Be ready to say that the statement is offered to explain your reasoning, not for the truth of the matter. If the judge overrules you before you can answer, say, “Your honor, may I respond?”

If all else fails and you have no idea what the response to an objection should be, just state what you are trying to prove. For example, “Objection: Hearsay.” “Your honor, I’m just trying to show I was not trying to be unreasonable.”

How to Admit Documents

It is always best to have an attorney present.

 

Always have three copies of everything you want to introduce. Label them before the hearing “Mom-1,” “Mom-2,” etc. The order doesn’t matter. The exhibits must be labeled, and each copy of the same exhibit should have the same label. For example, phone records labeled: “Mom-1,” “Mom-1,” and “Mom-1,” Medical records labeled: “Mom-2,” “Mom-2,” and “Mom-2.”

Generally, the judge won’t ask questions, but there are things you must say before exhibits are admitted into evidence.

How to admit text messages or e-mails:

1. Where they came from: I printed these marked as Exhibit Mom-1 directly from my phone.

2. How they are identified: The telephone number at the top of the page is my Ex’s phone number.

3. How they are authentic: I can tell he wrote the message because it references a school play we talked about, and I recognize how he writes.

4. Offer Exhibit Mom-1 into evidence.

5. If the evidence is admitted, ask permission to hand a copy to the judge.

Possible objection: Insufficient foundation. These messages could have been written by anyone!

Response: I’ve met the threshold for admissibility. They can offer evidence against the messages when it’s their turn.

How to admit pictures:

1. Where it came from: I took this picture marked as Exhibit Mom-2.

2. What it is: It is a picture of my face.

3. Accuracy: It fairly and accurately represents the scene at the time it was taken.

4. Note any discrepancies: The actual bruise was slightly redder.

5. Offer Exhibit Mom-2 into evidence.

6. If the evidence is admitted, ask permission to hand a copy to the judge.

Possible objection: Some attorneys object to any description of the photo before it is admitted.

Response: If sustained, just move on to the next step.

How to admit business and medical records with a witness:

1. What is your full name?

2. Whom do you work for?

3. Did you bring the records with you? Optional: Ask how many pages.

4. Are these records marked as exhibit Mom-3 the records you brought? Ask the judge’s permission to approach the witness.

4. Are you familiar with how these records are made and maintained?

5. Were the records made at or near the time of the event they record?

6. Are the records kept in the regular course of activity?

7. Offer Exhibit Mom-3.

8. If the evidence is admitted, ask permission to hand a copy to the judge.

Possible objection: Hearsay within the document.

Response: Ask the judge to ignore the hearsay or deal with it like any other objection. Be prepared to mark out excluded text with a Sharpie if necessary.

Witness examinations

1. What is your full name?

2. Whom do you work for?

3. Where do you live?

4. Are you familiar with [person, place, or thing]?

5. How do you know (about) [person, place, or thing]?

6. Specific questions about the person, place, or thing that go along with your theme.

Cross Examinations

In cross-examination, you want to ask a witness things you think they will admit to. Or, you want them to give information that you need. Be aware that they may lie, so make sure the information won’t hurt too badly.

It’s best not to ask questions in cross examination unless you

• Know the answer,

• Don’t care what the answer is, or

• Have proof of the answer and can demonstrate dishonesty.

Admissions: The witness may lie, but you can probably prove it. The reason for asking these types of questions is because you cannot testify to them yourself. You testifying, “My wife was fired” could be objected to as hearsay. Asking your wife, “You were fired, weren’t you?” could not.

Examples:

  1. You work for Delta Widget’s, don’t you?
  2. You were arrested last year for drug possession, weren’t you?
  3. Isn’t it true that you were fired for using drugs?

Don’t care: It doesn’t matter how the witness answers these questions. You’re making a point.

Examples:

  1. Drugs are illegal, aren’t they?
  2. If you are arrested for possession while the kids are with you, wouldn’t that be scary for them?

Information: The witness may lie, but you’re just trying to get as much information as you can. Be careful.  Hostile witnesses can drag out answers and waste your time.

  1. What is your address?
  2. Where do you work?
  3. Who paid your attorney fees?
  4. How much was the retainer?
  5. What is your gross monthly salary?
  6. What financial institutions do you have accounts in?
  7. About how much is in your accounts?

Subpoenas

Subpoena any witnesses you want to testify. Be aware of time limits and make sure the witnesses you call have something to say that goes along with your theme. Ask witnesses to bring three copies of employee records, CPS, medical, or other records as appropriate.

Conclusion

It is always best to have an attorney present. But when that is not possible, use these tips and strategies as a first step in preparing for your day in court. Do additional research, study the Texas Rules of Evidence, visit the judge’s court room, and have your evidence and witnesses in order.

Call an attorney for assistance or see TexasLawHelp.org for self-help materials and help in locating free legal services.


Links to local rules for Collin, Dallas, Denton, McLennan, and Tarrant Counties.

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In Defense of the Pro Se

In Defense of the Pro Se.

Today I will talk about Google’s brand of diversity and how it can harm you. In a previous post, I discussed how politicization of colleges can affect your rights. In this post, I will discuss how politicization of your access to information can affect your rights in as neutral of a way as I can.

It is important to consider what will happen when this hostility seeps into search results.

 

A man was fired to end a discussion.

In case you are unaware, Google recently fired an engineer for writing a paper. The paper questioned whether more freedom to speak freely and exchange ideas could help Google achieve diversity goals. The theme of the paper does not seem to be controversial and it was quite well researched. The engineer claims he offered it to begin a discussion. You can read the paper for yourself and come to your own conclusions about it.

I picked this particular scenario because I have seen the correct advice deleted from a social media website after people complained.

 

Google showed much hostility toward information on topics that some people find uncomfortable. It is important to consider what will happen when this hostility seeps into search results. We already know Google has initiatives on YouTube to flag what it deems objectionable content. Many users are having their content blocked or demonetized for what the users claim are political reasons.

Even people who only watch cat videos need to know their rights-especially custody rights.

The decision to get a paternity test is often controversial to people who do not know the law or who have a political agenda.

 

If I only watch videos of cats, how does this affect my rights? Let’s start with the example of a Suit to Adjudicate Paternity which is a fairly common type of lawsuit in Texas. Generally, the best way to answer this type of suit is with a General Denial (maybe not in your case, but generally). You should get a paternity test even if you are sure the child is yours. Before that you have no guarantees unless you had a camera on the egg to witness the conception. You don’t want to pay twenty percent of your income for someone elses child for eighteen years. Moreover, the child’s real father could return to the child’s life leaving you left out of everything except the child support obligation. These things happen. A general denial is your ticket to a paternity test.

However, the decision to get a paternity test is often controversial to people who do not know the law or who have a political agenda. Some may even find it “triggering”. The type of advice above gets flagged as inappropriate. In fact, I picked this particular scenario because I have seen the correct advice deleted from a social media website after people complained.

Private meets public censorship.

Internet safety filters in schools and libraries block information flagged as inappropriate. What happens when someone who cannot afford an attorney goes to a public library to do research? Or how about when a child or teacher tries to help a parent from a school library with even stricter filters? The filter hides critical information for the party’s own “safety.” That doesn’t sound safe at all.

Rights you do not know about are often rights waived.

 

If you think this gives you an advantage because you are a woman, you are sadly mistaken. That flagged content – not only did it tell the man how to fight a paternity claim, it also included limitations that would torpedo his case. Paternity generally cannot be questioned after four years for example. Sorry, that important nugget is in the same content hidden behind the filter.

It’s even worse than that though. What happens when a valuable authority makes one controversial post and gets banned or blacklisted? Suddenly, access to a treasure-trove of useful knowledge is lost to everyone who might benefit from it. Rights you do not know about are often rights waived. As a result, whichever party can afford an attorney has an even greater advantage over a pro se (unrepresented party) who relies on a censored internet.

The people making these decisions can afford to hire their own attorneys.

Consorship is the great and terrible equalizer.

Censorship hurts almost everybody equally. Men, women, black, white, citizens, and immigrants all need access to all the information to defend their rights. The divide is between the rich and poor. The poor have to rely on access to information on the internet while the rich hire attorneys. The people making these decisions can afford to hire their own attorneys.

I’m not saying that search engines have gone this far yet, but they appear to be on their way. I find it terrifying and so should you.

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Jail for Overpaying Child Support?

Jail for Overpaying Child Support?

In this post I will explain why a Houston man really went to jail for failing to obey possession and child support orders and what it means to you.

News stories are often a source of misinformation. Misinformation from news sources can feed our perceptions of unfairness. Our perceptions of unfairness can get us into trouble. It is not that journalists want to deceive you, but sometimes we all hear the story we want to hear and get stuck in a cycle of confirmation bias. Confirmation bias is the tendency to disregard evidence that contradicts truths we firmly believe or want to believe.

Watch the video below from Fox News Houston. It purports to tell the tale of a father sent to jail for the crimes of paying too much child support and visiting his son too much.

Confirmation bias is the tendency to disregard evidence that contradicts truths we firmly believe or want to believe.

No, You Won’t Be Thrown in Jail for Paying Too Much Child Support.

It is an error for you to be jailed for overpaying child support. Fox News Houston left out that the father owed $2,743.09 in back child support arrears when the mother filed her enforcement. While the case was reset at least once and the father did make his child support current, that was not enough to correct the contempt.

As of June 14, 2013 you can no longer avoid jail simply by showing your child support is up to date at the enforcement hearing.1 The original hearing was set for June 10, 2013, before the repeal went into effect; however, it was reset by agreement to give the father time to pay. Unfortunately, the father had erroneously believed he was up to date before the June 10 hearing and needed time to make one more payment. By the time of the new hearing, the repealed law could no longer help him escape jail.

As of June 14, 2013 you can no longer avoid jail simply by showing your child support is up to date at the enforcement hearing.

The father also tried to argue that the missing child support was the fault of his employer. He claimed that an employee incorrectly entered the withholding amounts from his paycheck. The problem with that argument is that you, not your employer, are responsible for ensuring child support is paid correctly. Your order probably even says this. You do not get to enjoy the benefits of your employer’s mistakes at the expense of your children.

In fairness to Fox News Houston, Snopes also got this story wrong. The Houston Court of Appeals did overturn one violation where the trial court found the father guilty of paying too much child support.2 Unfortunately for the father, the appeals court was able to overturn only this part of the order and leave the remaining violations and the father’s sentence intact.

Yes, You Can be Jailed for Visiting Your Children Too Much.

Visiting your child too much is probably a violation of your order. It is another way of saying you have your child when the other parent has the right of possession. A court ordered parenting plan is written to give children fair access to both parents. Either parent deciding that he should have more time with the children without the other’s permission is deciding that the Court was wrong. Judge’s don’t like that. They also don’t like it if you disrespect the Court by disobeying the Court’s order. If one parent can prove beyond a reasonable doubt the other is visiting his children against orders without permission, a Judge can and often will put him in jail.

How Stories Like this Hurt You.

In my previous post, “When Cultures Clash”, I explain a little bit about cognitive dissonance and confirmation bias in the context of mixed-culture divorce and remarriage. Briefly, our cultures largely define our belief systems. When someone acts outside of our belief system we often see that as bad. Once we define a person as bad, we start to discount everything positive we hear about them and emphasize the negative. Because of this confirmation bias feedback loop, the bad person keeps looking worse and worse in our minds until he becomes the worst thing since Prince Humperdinck.

DILBERT © 2017 Scott Adams. Used By permission of ANDREWS MCMEEL SYNDICATION. All rights reserved.

There is already a perception that fathers do not get a fair shake in courts overall. The thing to remember is that no matter how true this might be, it says absolutely nothing about your individual case. At least in Texas, the law is that mothers and fathers are treated equally. There is a standard parenting plan. There are guidelines for child support. There is a presumption against spousal support. Texas’ public policy is to maximize the time children spend with both parents, and judges generally follow the law.

A bad attitude feedback loop can adversely affect how the Court rules for you, but it probably won’t!

If you go to court believing stories like this, and believing you are not going to get a fair hearing, you won’t–at least not in your mind. You will already be emotional because of whatever brought you into court. Because of confirmation bias, every ruling against you is going to feel unfair. The Judge will see your attitude and probably won’t like it. The judge’s attitude might show through, further feeding into your confirmation bias. A bad attitude feedback loop can adversely affect how the Court rules for you, but it probably won’t! Once you ratchet up that attitude, though, it is going to be harder to follow the final orders.

What Should I do?

Always go into Court in professional attire with a professional attitude. Maintain that professional attitude no matter what. Pre-trial, you are auditioning for the trial court. In trial, you are auditioning for the appeals court. Expect the Judge to be fair. A judge can be fair but wrong. Sometimes the judge is wrong because of a mistake that can be appealed, but most of the time it is because your evidence did not support the “correct” ruling. However, because of cognitive dissonance, the losing parent often rationalizes the judge’s decision by believing he is corrupt or has a bias against one sex. This is usually counter-productive.

A judge can be fair but wrong. Sometimes the judge is wrong because of a mistake that can be appealed, but most of the time it is because your evidence did not support the “correct” ruling.

If you are ordered to appear for an enforcement, get an attorney. The judge should give you the option to reset so you can find one at the first hearing but don’t count on it. Get an attorney even if you think you can work out an agreement with the other side. Once you are in front of a judge and facing large fines and a jail sentence, the other side has a huge amount of leverage to get a very unfavorable settlement from you.


1See Act of May 23,2007, 80th Leg., R.S., ch. 1189, § 1, 2007 Tex. Gen. Laws 4054, 4054, repealed by Act of May 22, 2013, 83d Leg., R.S., ch. 649, § 2, 2013 Tex. Sess. Law Serv. 1735, 1735 (West) (effective date June 14, 2013)

2In re Hall, 433 S.W.3d 203, 208, 2014 Tex. App. LEXIS 5704, *8, 2014 WL 2420972

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When Cultures Clash

When Cultures Clash–

Divorce, Remarriage, and Children.

When a parent remarries, the new spouse is often the source of alienation between the children and one of the parents. This is especially true when there is a clash of cultures. Mixing cultures can be a recipe for disaster between divorced parents and their children. Watch this one hour video by Stefan Molyneux for an example of the problems it can cause.

Unfortunately, you cannot know when you are experiencing cognitive dissonance. Everyone else seems just as wrong either way.

Cognitive Dissonance

The first thing we need to cover is “cognitive dissonance”. Cognitive dissonance happens when new information clashes with our own realities. If you see a flying pig your mind will rationalize that it must have been shot out of a cannon or launched from a trebuchet. Your mind has to come up with something to rationalize the absurdity of the situation because in your reality pigs cannot fly.

DILBERT © 1992 Scott Adams. Used By permission of ANDREWS MCMEEL SYNDICATION. All rights reserved.

Everyone wants to marry a soul mate. We want, and hopefully think we have found the most wonderful perfect person to share our lives with. In our reality, this new wonderful person could not possibly be the cause of a child hating us or hating the other parent. In order to deal with this absurdity, our minds will rationalize that either the other parent is causing the alienation or the child is the problem. In the video you can hear at about the 60 minute mark where the father says he respects and admires Stefan Molyneux. He deals with the absurdity of disregarding the opinion of someone he highly respects by hallucinating that the reality is more nuanced than even Mr. Molyneux can understand.

Unfortunately, you cannot know when you are experiencing cognitive dissonance. Everyone else seems just as wrong either way.

Our culture informs our reality

Mixing cultures is also a recipe for cognitive dissonance. Culture and values are intimately tied up with who we are. By the time you marry someone, you’ve negotiated those differences. You look past them to see the person you love and rationalize and adjust to the differences. This is all well and good, but your ex spouse and children are not going through the same process in the same way. It’s like you’ve gone to the personality tailor and swapped out a chunk of who you are. To you, you are the same person, but to those closest to you, you are not. Moreover, anything your ex or your children do not like, they are going to blame on the new spouse. And because some of those changes involve new culture and values, you can bet there are going to be some things they do not like.

The best thing you can do is focus on the children and not the fault.

If you divorce from a conservative culture and marry into one that is more permissive, your ex may see you as becoming immoral and teaching the children bad values. If you go the other way, your ex will see you as becoming oppressive and authoritarian.

In either case, the children are likely to be caught up in the middle of the culture war and be forced to choose sides. Both parents are going to want to teach their values to their children. When they were married, the parents had already worked through those issues, so in divorce they likely co-parented well to start with. When the culture of one household changes, it throws everything out of balance.

Alienating a parent

Alienating a parent is never good for the child. Because of cognitive dissonance, people never think that they or their new spouses are part of the problem. It’s always going to be entirely the other parent’s fault. And remember, nobody knows when they are in cognitive dissonance. Everyone else is just being crazy and acting absurdly.

In some cases, the goal of the new spouse is alienation. Because of the cultural differences, the step-parent simply sees the other parent though the cultural lens he was born into and wants the other parent gone for the good of the children. In other cases alienation is the goal of the ex-spouse for the same reasons. Either or both of these could be the reality, or it could be completely accidental. Regardless, everyone will believe it is the other parent’s fault. Worse, everyone will have all the evidence they need to prove it is the other person’s fault because of confirmation bias (the nearly inescapable tendency to only look at evidence that supports one’s beliefs and disregard or minimize other evidence.)

What should I do?

The best thing you can do is focus on the children and not the fault. Understand that no matter what you think of the other parent or how much you want to think otherwise, alienation is bad for the child. If you think alienating the other parent in your special case is the right thing to do, you are experiencing cognitive dissonance.

If the relationship between either parent and the children deteriorates after a re-marriage, start family counseling before you start blaming. Don’t put your children’s emotional health at risk, even if it is not your fault.

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Texas Sanctuary City Law Changes

Texas New Sanctuary City Law.

Unfortunatly, there is a lot of bad information floating around about the new Texas sanctuary city law. It is unfortunate because when politicians and advocacy groups dispense misinformation about immigration law to scare people, they actually empower abusers who commit family and sexual violence. That is because abusers can control their victims by giving them false information about what will happen to them if they report.

This post tries to dispell some of the worst of the fake news.

Does the new law grant police officers the right to stop and ask for “papers”?

No. The new law does not grant police officers any new powers to ask for identification. The law prohibits officers from asking victims or witnesses of crimes about their immigration status with a few exceptions.

  1. The law does not prohibit police officers from asking about your immigration status if it is relevant to the crime. For example, an officer may ask the nationality of a victim of human trafficking.
  2. The law does not prohibit police officers from talking to you about your immigration status if cooperating with the police could help you. For example, cooperation could make you eligible to obtain certain federal visas.
  3. The law does not prohibit officers from asking about your immigration status if he has probable cause that you also committed a criminal offense.

If any other law or local policy prohibits officers from talking to you about your immigration status, that will not change. In other words, the law adds prohibitions, it does not take any away or grant police officers any new rights.

The law prohibits officers from asking victims or witnesses of crimes about their immigration status with a few exceptions.

Does the new law make government officers comply with Immigration and Customs Enforcement (ICE)?

Yes. The new law requires government officers to comply with Immigratios and Customs Enforcement (ICE). This includes prohibiting agencies from enacting policies designed to thwart ICE officers from performing their duties. For example, an agency cannot have a policy to deny entry of immigration officers into jails. The new law also requires government officers to honor detainer requests unless the person detained has proof of citizenship – such as a Texas driver’s license.

Does the new law allow local governments to inform me of my rights as an immigrant?

Yes. The new law specifically authorizes agencies to have written community outreach policies. These policies can, among other things, inform immigrants that a police officer is not allowed to ask them about their immigration status when they are victims or witnesses of crimes. Specifically, the statute requires community outreach policies to include outreach to domestic violence and sexual violence victims. This is important because victims of domestic and sexual violence are often misled by perpetrators into believing they will be deported if they report their abusers.

What should I do?

You should contact an immigration attorney to determine whether you are eligible to change your status. Otherwise, just don’t break the law. The current government’s main priority for immigration enforcement is still against those who have committed crimes.

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How to File Enforcement by Contempt

Texas Child Visitation Enforcement – How to File a Motion for Enforcement by Contempt

This is a general overview of what goes on in filing a motion to enforce. You should consult with legal counsel or do your own independent research and not rely on this post as an authoritative guide.

Get a Certified Copy of the Final or Temporary Order You Want to Enforce

First, get a certified copy of the order granting you possession or access. Read it carefully. Make sure that you are in compliance. Is your child support up to date? Have you notified the court, the child support disbursement unit, and the other parent of any changes to your address, employer, etc.? If you are behind on child support, you can still inforce possession and access, but be prepared for the other parent to file an enforcement against you. An enforcement for child support is a lot easier to prove since the state keeps track of payments.

Review the Evidence of Order Violations

Next, review the evidence. Do you have the evidence you need to prove you were denied access beyond a reasonable doubt? How do you intend to prove that you were at the pickup location at the appointed time? Do you have receipts? Pictures? Make sure you have what you need before you file. If not, gather more evidence. See Custody Enforcement Mistakes

Determine the Correct County to File your Motion for Enforcement

You may need to do a little research to determine the correct county in which to file. If you file in the wrong county, there may be additional costs to transfer your case.

Read the local rules in the court where the order is filed or registered. You can usually find them by searching “[County Name] Local Rules” on the web.  It is always good to familiarize yourself with the local rules, and there may be some information you want to know before you file.

Prepare the Motion for Enforcement of Possession or Access

There are form motions at TexasLawHelp.org that you can use as an example. Search for the “Visitation Enforcement Kit”. I am not endorsing this kit except as a place to get started. There are some things I do not like about motion included with this kit. For one thing, you need to have excerpts of the portions of the order that were violated before the list of violations. For possession an access, this is usually in separate parts: the part that states when visitation is to occur and the part that states where the other parent is to surrender the child. There may also be other portions that need to be quoted.

It is always good to familiarize yourself with the local rules, and there may be some information you want to know before you file.

In general, the motion should state the relevant portions of the order violated. It should state who violated the order for each violation. It should also state when, where, and how the order was violated for each violation. It also needs to state the relief you are requesting and ask for clarification of the order if it is not specific enough to enforce. The order you want to enforce should be attached as an exhibit.

File the Motion for Enforcement of Possession or Access

You will need to file the motion in accordance with the local rules, but the basic requirements are the same. You need to file the motion and order to appear and request citation. You need to ask for a hearing date at least thirty days away. The respondent has until the 10:00 AM on the first Monday following 20 days to answer. If you want to do discovery, there will need to be extra time for that.

Serve the Citation, Motion, and Order to Appear

Once that is done you need to serve the citation, motion, and order to appear. Usually this is by constable service, but check with your local courthouse. In order to enforce by contempt, the respondent has to be personally served.

Now you can move on to figuring out how to prove your case beyond a reasonable doubt in court.

Good Luck!

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Scientific Evidence

Scientific Evidence, Politics, and Convictions – The Deeper Civil Rights Implications of Academic Freedom

Science Doesn’t Lie

I recently saw a sign from the “March for Science” saying, “Science doesn’t lie.” Is that true? Is it even scientific? It is an important question because every day attorneys ask jurors to evaluate scientific evidence in cases from DWIs to rape and murder.

Under the rules of evidence, an expert may testify about scientific evidence “if the expert’s scientific…knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”1 The testimony must be “based on sufficient facts or data;…the product of reliable principles and methods;” and the expert must have applied the methods and principles reliably.2

What good does it do to subject your theory to peer review when all of your peers agree with you?

Generally, to be admissible, scientific testimony must pass the Daubert/Robinson test. In Daubert the Supreme Court provided guidance for judges and juries to evaluate the reliability of scientific evidence.3 The Daubert case involved a drug that parents believed caused their childrens birth defects. The court upheld the dismissal because there were no peer reviewed studies to support the claim. In Robinson the Texas Supreme Court outlined some factors that could be used to evaluate scientific evidence, including:

  • whether the methodology has been subject to peer review,
  • whether the methodology or opinions are generally accepted within the scientific community,
  • the extent to which the theory can be tested,
  • and the error rate4

Or Does it?

But what happens when the scientific community is dominated with monolithic political views? What good does it do to subject your theory to peer review when all of your peers agree with you? In 2015, Behavioral and Brain Sciences published a paper arguing that academic psychology has lost nearly all of its political diversity in the last fifty years, “most likely due to a combination of self-selection, hostile climate, and discrimination.”5

The paper argues that bias resulting from the lack of diversity (studies suggest only 5%-8% of social science professors in the United States identify as conservatives) reduces the quality and can “undermine the validity of social psychological science.”6 Researchers can imbed their values into their theories and methods, negative attitudes can cause researchers to mischaracterize conservative values, and confirmation bias can cause them to look only at evidence that supports their assumptions. The paper cites examples of this. For instance, if you disagree that “we will soon experience a major environmental catastrophe,”then you are charactarized as in “denial of environmental realities.”7 Or, if you agree that hard work gets results, then you are engaging in “rationalization of inequality.”8

So what if it does?

This has profound implications in law under Daubert. Take for example a child custody evaluation. Child custody evaluations are a wonderful tool and I use them. But let’s see an example of how the political environment in higher education can have implications that people don’t think about.

A psychologist evaluates a child and parents and may come up with a numerical score to make a recommendation on who should be making moral, religious, and educational decisions concerning the child. It all sounds so objective and scientific if numbers don’t lie and science doesn’t lie. Take a moment to consider how insidious this could be.

Mental health professionals are increasingly used in criminal cases.

The psychologist  may have no bias whatsoever. The psychologist is most likely trying to be as fair and objective as possible. The bias is imbedded in the number. The number came from a methodology which is based on research embedded with values that half the country does not share. The methodology is accepted because everyone has the same biases. Because of this, the bias is built into the rules of evidence under United States and Texas Supreme Court decisions. This probably has not happened yet, but the bias on college campuses has only been getting worse over the years. How will things look 20 years from now? 30 years?

Criminal law has more profound implications. Mental health professionals are increasingly used in criminal cases. Imagine you are the Defendant in a self-defense case. The alleged victim had a gun and you claim you were being robbed. The prosecution says no, Defendant shot the alleged victim because Defendant is a racist. He puts on an expert who testifies that you have “white supremacist” tendencies. The expert’s conclusion is based on, among other things, the fact that the Defendant thinks taxes should be lower and likes to wear red hats — two things a hypothetical future study says are associated with White Supremacists. Would you want the guy holding the “Science doesn’t lie” sign to be on the jury?

So what if it doesn’t?

Confirmation bias affects everyone. “People tend to search for evidence that will confirm their existing beliefs while also ignoring or downplaying disconfirming evidence.”9 There are two recent cases where political confirmation bias may have influenced prosecutors. This is different than a political prosecution. When a prosecutor prosecutes someone because of his political beliefs or other invidious political reasons, then the prosecutor is engaging in political prosecution. On the other hand, when an investigator reaches a conclusion prematurely due to politics so that all of the subsequent evidence the investigator sees confirms it, then it is political confirmation bias. In other words it is unintentional.

The first case is the infamous Freddie Gray case. I won’t get into whether the officers were guilty or not guilty of anything, but there was a lot of conflicting evidence. Witnesses testified about the officers breaking bones that weren’t broken. His neck on video appeared to be broken prior to transport. The medical investigation found that Gray had sustained the injuries when he was standing in the van due to an abrupt change in direction. The prosecutor said the knife he was carrying was legal. The knife was in fact illegal under city code. The officers’ acquittals and subsequent lawsuits seem to indicate that the officers were over-charged because the prosecutor focused on evidence confirming her beliefs and ignored or minimized other evidence. The over-charging was likely due to political confirmation bias in the wake of violent protests. It may be that the officers would have been found guilty of something if they had been charged based on the evidence viewed objectively.

The officers’ acquittals and subsequent lawsuits seem to indicate that the officers were over-charged because the prosecutor focused on evidence confirming her beliefs and ignored or minimized other evidence.

The second case is the case against infamous police officer, Daniel Holtzclaw. Crime Watch Daily is doing a three part series on this case and you are welcome to reach your own conclusions. For purposes of this post, I am going to assume he is not guilty. As presented by the Hortzclaw family and CRTV, Officer Holtzclaw was accused of sexual assault by a woman he stopped. Detectives in this case immediately assumed that he was guilty. During the investigation, detectives went out in search of women who would say they were victims and found some. Among the conflicting statements the alleged victims made to investigators was that the white six foot one inch former linebacker was a short black man. Detectives minimized and even failed to look for evidence favorable to Hortzclaw, including tests to exclude innocent DNA transfer. Hortzclaw was tried for 32 counts of related offenses of which he was found guilty of 18.

Unfortunately for Holtzclaw the lab found DNA on his pants. That sentence sounds pretty damning. DNA is science; there was science on his pants! Immediately your brain relaxes because it doesn’t have to make a decision. Someone else already showed he is guilty with DNA. We love DNA! The problem is, DNA is probably the biggest liar in criminal law10. It convicts where it shouldn’t and exonerates people who are guilty of horrible crimes. The truth is, if you leave the house for a normal day, there is no way you are going to make it home without getting someone’s DNA on your pants. That could be you behind bars because you shook the wrong sweaty hand one day.

These are two cases where confirmation bias likely lead to criminal charges. In the first, science may have lead to unjust acquittals. In the second, science may have lead to an unjust conviction.

What are the implications?

“Science doesn’t lie” is a declaration that betrays the political irrationality of the declarant. What subject lies? History? Architecture? Badminton? As citizens, we need to be informed not compliant. What “Science doesn’t lie” means is that criticism of my beliefs is not allowed. That is not science. It corrupts science.

The implications are that attacks on free speech, the presumption of innocence, and the right to a fair trial cut deeply into our constitutional protections. There are consequences to firing a professor who asks a political incorrect question, and there are consequences to rioting to prevent students from hearing criticism of your ideas. These things prevent scientific discovery and advancement and lead to bad science. Bad science leads to bad evidence. Bad evidence leads to injustice.

Moreover, reverence for science is misplaced. When we are growing up our parents have all the answers. Once we are on our own it is tempting to believe that science has all the answers, so we treat it practically like a religion. We even say, “I believe in science.” But science isn’t something to believe in. It is a tool-one of many we need to build a just society11.


1 Fed. R. Evid. 702.
2 Id.
3 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)
4 E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex.1995).
5 Duarte, J.L., Crawford, J.T., Stern, C., Haidt, J., Jussim, L. and Tetlock, P.E. (2015) ‘Political diversity will improve social psychological science’, Behavioral and Brain Sciences, 38. doi: 10.1017/S0140525X14000430
6 Id.
7 Id. at 4.
8 Id. at 5.
9 Id. at 7.
10 This may be hyperbole, but it is a hypothesis worth testing.
11 For more tools we need to build a just society, see The Dreyfuss Civics Initiative.

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Non-immigrant Labor Laws

No, You Can’t Just Ship Your Employees to the USA and Treat Them Badly

The US government allows companies to transfer certain foreign employees to the United States under L1-B visas. These employees have specialized knowledge needed in the United States, and already work for the company that wants to transfer them. United States Citizenship and Immigration Services (USCIS) published a  policy memo on April 12, 2017 concerning transferred employees. It explainined that businesses must treat transferred employees fairly under the Fair Labor Standards Act (FSLA). 

Businesses must treat transferred employees fairly under the Fair Labor Standards Act (FSLA)…Businesses will need to update their policies to make sure they are treating foreign workers as well as they treat Americans

The FSLA establishes minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time workers. A manufacturing company wanted to transfer one of its employees to a plant in Arizona from Malaysia. The employee contract specified wages to be paid at 43,445 Malaysian ringgits per year. When the USCIS converted the ringgits to US dollars, it found that this was less than minimum wage. It ruled that the employer must prove that it will treat transferred employees according to the FSLA standards.

Not only that, but the employer may also have to prove that it is treating foreign workers fairly compared to American workers. They should not pay foreign workers less than Americans for doing the same work, for example. In addition to salary, businesses should also look at working conditions and benefits.

USCIS under the new administration does not want businesses to replace American workers with underpaid foreign workers. Moreover, it does not want businesses using the immigration system to find workers they can treat poorly. USCIS wants businesses to find workers whose skills fill a gap. Foreign workers must be paid based on their skills, not their immigration status. Going forward, businesses will need to update their policies to make sure they are treating foreign workers as well as they treat Americans.

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Why We Need Federal Expunctions

Why We Need Federal Expunctions

Do #BlackLivesMatter or do #BlueLivesMatter? They should be on the same side. Black Americans want safe neighborhoods, and they need the police for that. The police need to solve crimes, and they need cooperation for that. What is the solution? Expunctions.

Black Americans are forever locked out of the workforce because they got caught with weed, got into a fight once, or committed some minor offense and could not afford high-priced attorneys to fight for their rights. How do you persuade someone without a law degree that this is fair?

The problem

Police Officers and poor – often Black – Americans are treated massively differently by the government. As an attorney, I understand and agree that government employees need certain protections from arbitrary actions by their government employers. Arbitrary or political punishment of police officers is both unfair and bad for democracy. Unions and union lawyers work on the side of (often wrongfully) accused police officers to help ensure that discipline is fair and just. Sometimes police officers are cleared of wrongdoing or face only a reprimand following a “paid vacation” after using what the public sees as unnecessary violence against unarmed Black Americans.

Meanwhile, many Black Americans are forever locked out of the workforce because they got caught with weed, got into a fight once, or committed some minor offense and could not afford high-priced attorneys to fight for their rights. How do you persuade someone without a law degree that this is fair? Maybe you could convince one after a few hours but never thousands or millions of people who are already angry at you.

The solution

Be Public Servants

First of all, one side needs to start listening to the other, and I am sorry to say that it is the Blue side that needs to do the listening. A little while ago a police officer was refused service at a restaurant. What followed was the most massively tone-deaf reaction possible involving the Police Chief, the union, a boycott, national news, and a campaign to fire two low income restaurant employees who were trying (in an inappropriate way) to make a statement. It doesn’t matter if they used poor judgment and were wrong, the perception is that of a massive jack-booted campaign against two weak and voiceless members of a community for not knowing their place and getting uppity with a cop. Imagine the difference if instead the Police Chief said, “We understand that you hate us; tell us how we can be better,” and then listened. You will never persuade a man that killing his unarmed brother was fair because you followed policies and procedures, but by listening you can persuade him that he matters.

Remove Unequal Barriers to Employment through Expunctions

You will never persuade a man that killing his unarmed brother was fair because you followed policies and procedures, but by listening you can persuade him that he matters.

Second, something needs to be done to address the inequalities arguably created by our government and blamed on everyone else. To find the answer to that, we need to look no further than to the protections that the police enjoy for themselves. We cannot provide a high-priced lawyer to everyone accused of a crime, but we can give people their lives back after they have done their time. A program to remove criminal records from public view should be done now but temporarily at the Federal level under the Fourteenth Amendment. After a short time, the decision to continue the program and how to manage it should be left to the states.

Advantages

Of course there are both advantages and disadvantages to a federal expunction program. The main advantage is that thousands of people in crumbling Black communities could suddenly find themselves employable, reducing their burden on limited government resources and even adding their income to the tax base. In addition, more defendants would be willing to plea bargain since a criminal conviction would no longer be a death sentence for their careers and job prospects – potentially reducing both prosecution costs and incarceration costs. Finally, it will help to heal the Black Lives/Blue Lives divide because it returns some of the dignity the government has taken away from defendants for their crimes and returns it to the people, giving them hope and prospects they did not have before.

Disadvantages

The biggest disadvantage is the costs of implementing and managing of a federal expunction program. Participants would need to participate in services and petition the courts for admission into the programs, both of which will cost money. The costs could not be placed solely on the defendants because that would exclude the poorest defendants whom we most want involved. It is possible that the benefits will exceed the costs in the long run, but someone will have to figure out how to pay for it in the short term. The other problem is the loss of deterrence. One would expect to see a spike in expungable crimes, but that may also result in a reduction in non-expungable crimes which are presumably worse, and district attorneys can adjust for this with tougher plea-bargaining. At any rate, the program should be transferred to the states as soon as practicable so they can experiment and adjust for their own particular needs.

Obstacles

Absurdity does not mean the policy is not complicated enough, it means it is a bad policy.

The biggest obstacle is special interests which are likely to fight for exclusion of the people the expunction program is meant to help. There seems to be a special interest group for every crime – MADD and the various domestic violence organizations to name a few. A woman should not have her life and career ruined by the scarlet letter “A” for Assault Family Violence because she threw a remote control at her husband, and a kid’s life should not be ruined by a DWI because he took the wrong cold medication. Absurdity does not mean the policy is not complicated enough, it means it is a bad policy. Non-expungable crimes need to determined rationally by how much good they can do to communities – especially poor communities, and not by special interests pushing their agendas.

Conclusion

Make #BlackLivesMatter and #BlueLivesMatter, rebuild Black communities, and bring prosperity and safety back by giving people a second chance.

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Child Custody Rights in Texas

Child Custody Rights in Texas:

2017 Updates

2017 has been another big year for updates to the Texas Family Code. The vast majority of the updates involve child welfare and CPS. The 2017 updates provide protections to parents who homeschool and for poor parents and parents with convictions for certain nonviolent offenses. The updates also provide protections for parents who administer low-THC cannabis to their children according to a prescription, and there is a brand new chapter for Temporary Authorization for Care of a Minor Child. Now that parents and non-parent caregivers of children have new rights and protections, be sure to talk to a Family Law Attorney who can tell you how the law applies to you. Some of these laws may not be in effect yet.

There are a few dozen rights and duties of conservators of children specified in the family code. A conservatorship (child custody) order can allocate these rights any number of ways. This article will focus on five rights of parent conservators: Child support; possession and access; consent to treatment; making important decisions; and being informed about the child’s health and welfare. It is important to remember that no right or duty depends on any other. For example, if you are denied possession you still have to pay child support, and if you did not receive child support, you still cannot deny possession.

Summary

If you are a parent, you generally have a right to:

  • Have your children at certain times,
  • Receive information about how your children are doing,
  • Consult with the other parent about how to raise your children, and
  • Make decisions about how your children are raised; and
  • Depending on the orders you may have a right or duty to pay or receive child support.

The other parent cannot deny you any of these rights without a court order. If you feel like your custody rights are being denied by the other parent, call an attorney for a consultation. Your kids only grow up once.

Child Support

Child support is a major source of conflict when parents are separated. If you pay child support, think of it as paying taxes. When you pay taxes, the government takes money from you, you have no say in how it is spent, and it will be spent stupidly if for no other reason than to annoy you – just like child support. If you value your sanity, you will not look into any detail on how your tax dollars are spent, neither should you you pay attention to how your child support money is spent. Cover your ears, close your eyes, and sing a happy song to yourself if you have to, without a change in conservatorship, there is not much you can do about how that money is spent.

What if I can’t pay your child support? First of all, not paying your child support can cause you a lot of problems, but seeing your kids is not one of them. Make sure you do what you need to do to enforce your visitation above all. If your ex says you cannot see your kids until you pay up, go to pick them up anyway; but document, don’t argue. You can come back later to try and get the time you missed through an enforcement.

Second, don’t just skip payments. If your circumstances have materially and substantially changed — you have had other children, you have gone on active duty, you were injured, etc., then your support order can be modified. If you have lost your job, it is going to be harder to get a reduction but it may be worth a try. The important thing is to do everything you can to support your child and to be able to show that you have been doing everything you can to support your child.

Child Support CYA Checklist

_ Open a rainy day account and deposit 25% of your child support payment amount every month for the first year, 15% the second, and 10% after that until you have a year’s worth of payments saved up.

_Be polite to your Ex. It’s good for your kids, and your blood pressure.

_ Save your performance reviews.

_Review and update your résumé every six months.

_If you lose your job, get a haircut and start mailing your résumé that day. Keep a diary of everything you are doing to find another job. Imagine what someone could criticize you for not doing enough in your search. Immediately seek a child support reduction.

 

What if I am not getting my child support, or it is consistently late? In that case you have a couple of options: the Attorney General’s Office or a private attorney. A private attorney is going to represent you, while the Attorney General’s Office represents the State of Texas. If your ex has money and you can come up with an initial retainer, then a private attorney is probably your best bet. A private attorney can move fairly quickly according to your direction and should be able to collect attorney fees from your ex. Attorney fees earned to collect child support can usually be enforced with jail just like child support.

If you have an ex that habitually and intentionally avoids paying child support and goes into hiding every time he gets out of jail, then you will probably be better off letting the Attorney General enforce it; otherwise, you might end up out the attorney fees as well as the child support owed.

Possession and Access

You have a right to possession of your kids if it is in the order. You have a right to see them on the dates and times indicated in your order. So why does it get complicated? Sometimes it is innocent – the kids have some activities they want to do; sometimes it is not – the other parent schedules the kids for something during your time. Sometimes a parent has the child call to ask the other parent for permission to attend an activity instead of visitation. These are tricky situations to deal with and you should discuss them with an attorney or family counselor to get specific advice, but, generally, schedule makeup time in writing or go to court and enforce the order. Judges have seen the games parents play in these situations so try to be calm and smart and do all of the right things.

Making Important Decisions

These decisions could be allocated differently in your order so it is best to check or seek legal advice. In general, both possessory and managing conservators can usually make their own decisions concerning moral and religious training, non-invasive or emergency medical treatment, decisions about education health and welfare, and how to discipline the child. Often there are strong disagreements about how the other parent makes these decisions, but unless it is having a significant impact on the child’s health and welfare, you may need to learn to live with it.

Information About Your Child’s Health and Welfare

If the other parent is not keeping you informed about your children’s health and welfare, go to their doctor’s office and get a copy of their complete medical records. If the other parent won’t tell you who the children’s doctor is, then file an enforcement if you are entitled to medical information in your order. Hiding information about children’s health is a big red flag. Maybe it is being done out of spite, but often information is withheld because someone has something to hide. Parents can see things that absolutely shock them when they look at a full set of medical records for the first time.

Many schools have student records online and you should certainly look at those, but it doesn’t hurt to get first hand information from students and counselors. Being the possessory conservator does not make you a second-class parent. Even if communication with your ex is good, a different set of ears listening to school officials can be helpful, and your order should say that you have a right to consult with school officials.

Conclusion

Parents don’t lose the right to participate in raising their children when they break up or get a divorce. These rights can be enforced. If you feel like your custody rights are being denied by the other parent, call an attorney for a consultation. Your kids only grow up once, and they have a right to your support and guidance.

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Child Custody Enforcement Mistakes

The Five Biggest Mistakes in Visitation Rights and Child Custody Order Enforcement:

On September 1, 2015, hundreds of changes to the family code went into effect. To enforce most provisions of a custody order by contempt, you must follow the enforcement process precisely, starting on the day the orders are signed. This article is not a comprehensive guide, but what I believe are the five biggest mistakes that can stop attempts to enforce an order by contempt. For information on filing a motion, see How to File a Motion to Enforce Possession or Access by Contempt.

Mistake One: Focusing on the other parent’s behavior and forgetting your own responsibilities

Do not count on enforcing an order solely based on what the other parent does or does not do. You must do your part before filing a Motion to Enforce. If your order says “Sue Mother is ORDERED to surrender Lilly Child to Frank Father at the end of each period of possession at 1600 Pennsylvania Ave,” then you must go to 1600 Pennsylvania Ave to pick up your child, even if you receive a call from Sue Mother saying she is in Brazil and will not be at 1600 Pennsylvania Ave. You must pick Lilly Child up at the exact time and location and wait long enough to determine that she will not be there. “Knowing” that she will not be there will not hold up in court.

Examples

Good. “I arrived at 1600 Pennsylvania Ave., Arlen, TX on Thursday, October 1, 2015 at 6:00 PM – a date and time of my ordered visitation, knocked on the door, and waited 20 minutes.”

Not good. “I arrived at 1600 Pennsylvania Ave., Arlen, TX on Thursday, October 1, 2015 at 6:05 PM – the time of my ordered visitation – and waited 20 seconds.”

Not good. “Sue Mother called me and said she would not be bringing Lilly Child to see me so I could not go pick her up.”

Mistake Two: Failing to provide proper notice of the child custody order

TThe violating parent cannot be held in contempt unless you clearly state in your Motion to Enforce the part of the order that he failed to obey. You must include, word for word, every portion of the order that he violated. This is important but tricky, so spend the time necessary to make it correct. Parenting plans usually have two provisions and both need to be in your motion:

  • Date and time of possession and
  • Location and means by which the child is supposed to be surrendered.

Examples

Good. “On December 31, 2014, this Court signed an order titled Order in Suit Affecting the Parent-Child Relationship which states in relevant part on page 9 as follows: ‘Frank Father shall have possession of the children beginning at 6:00 P.M. on the second and fourth Friday of each month and ending at 6:00 P.M. on the following Sunday,’ and on page 14, ‘Sue Mother is ORDERED to surrender Lilly Child to Frank Father at the end of each period of possession at 1600 Pennsylvania Ave., Arlen, Texas.’”

Good. “On December 31, 2014, this Court signed an order titled Order in Suit Affecting the Parent-Child Relationship which states in relevant part on page 18 as follows: ‘The party who is carrying the health insurance policy covering the child is ORDERED to submit all forms required by the insurance company for payment or reimbursement of healthcare expenses incurred by either party on behalf of the child to the insurance carrier within fifteen days of that party’s receiving any form, receipt, bill, or statement reflecting the expenses.’”

Not good. “We have a standard possession order and I am supposed to have Lilly Child on the first, third, and fifth Fridays at 6:00 PM.”

Not good. “Sue Mother was supposed to submit forms to the insurance company but she didn’t.”

Mistake Three: Failing to provide proper notice of the child custody order violation

In addition to including the order he was supposed to obey, you must also explain exactly how he failed to obey it in your Motion to Enforce. Start by copying the part of the order violated, and then replace the relevant text with the facts you intend to prove.

Example 1

Order: “Frank Father shall have possession of the children beginning at 6:00 P.M. on the second and fourth Friday of each month and ending at 6:00 P.M. on the following Sunday,” and “Sue Mother is ORDERED to surrender Lilly Child to Frank Father at the end of each period of possession at 1600 Pennsylvania Ave., Arlen, Texas”

Count 1: At 6:00 PM on Friday, October 9, 2015, a day of Court ordered possession, Sue Mother failed to surrender Lilly Child to Frank Father at 1600 Pennsylvania Ave., Arlen, Texas.

Example 2

Order: “The party who is carrying the health insurance policy covering the child is ORDERED to submit all forms required by the insurance company for payment or reimbursement of healthcare expenses incurred by either party on behalf of the child to the insurance carrier within fifteen days of that party’s receiving any form, receipt, bill, or statement reflecting the expenses.”

Count 2: On October 2, 2015, Frank Father received a statement reflecting $400.00 of healthcare expenses incurred by Sue Mother. Frank Father failed to submit the statement and claim form, forms required by the insurance company for payment or reimbursement of healthcare expenses, to the insurance carrier by October 17, 2015, fifteen days after receipt of the statement.

Mistake four: Failing to present adequate proof of a child custody order violation in court

  • The standard of proof for a finding of contempt is “beyond a reasonable doubt.” You must prove:
  • There was an order,
  • Who violated the order,
  • The defendant had notice of the order, and
  • How the order was violated.

The first two are fairly easy, but remember to identify the defendant as the person who violated the order and ask the judge to take judicial notice of the order. The last two are trickier because the defendant does not have to testify. You are on your own. If the defendant signed the order, you can testify that you are familiar with his signature, and it is his signature on the order to prove notice.

Additionally, have witnesses when you pick up your child. Buy coffee near the pickup location and save the receipt as evidence that you were there. Keep a diary of your visitations. If the part of the order violated requires documentation to prove, then have documents that are admissible as evidence in court.

Mistake five: Having a child custody order not specific enough to be enforceable

Even if you do everything right, the judge may decide that the order is not specific enough to be enforced by contempt. In that case, you will need to ask the court to clarify the order, and you should always make the request in the Motion to Enforce as well as at the hearing.

Conclusion

Even if you do everything right, the judge may decide that the order is not specific enough to be enforced by contempt. In that case, you will need to ask the court to clarify the order, and you should always make the request in the Motion to Enforce as well as at the hearing.

Call an attorney for assistance, or see TexasLawHelp.org for self-help materials and help in locating free legal services.

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Child Custody Laws in Texas

Child Custody Rights in Texas:

2017 Updates

2017 has been another big year for updates to the Texas Family Code. The vast majority of the updates involve child welfare and CPS. The 2017 updates provide protections to parents who homeschool and for poor parents and parents with convictions for certain nonviolent offenses. The updates also provide protections for parents who administer low-THC cannabis to their children according to a prescription, and there is a brand new chapter for Temporary Authorization for Care of a Minor Child. Now that parents and non-parent caregivers of children have new rights and protections, be sure to talk to a Family Law Attorney who can tell you how the law applies to you. Some of these laws may not be in effect yet.

There are a few dozen rights and duties of conservators of children specified in the family code. A conservatorship (child custody) order can allocate these rights any number of ways. This article will focus on five rights of parent conservators: Child support; possession and access; consent to treatment; making important decisions; and being informed about the child’s health and welfare. It is important to remember that no right or duty depends on any other. For example, if you are denied possession you still have to pay child support, and if you did not receive child support, you still cannot deny possession.

Summary

If you are a parent, you generally have a right to:

  • Have your children at certain times,
  • Receive information about how your children are doing,
  • Consult with the other parent about how to raise your children, and
  • Make decisions about how your children are raised; and
  • Depending on the orders you may have a right or duty to pay or receive child support.

The other parent cannot deny you any of these rights without a court order. If you feel like your custody rights are being denied by the other parent, call an attorney for a consultation. Your kids only grow up once.

Child Support

Child support is a major source of conflict when parents are separated. If you pay child support, think of it as paying taxes. When you pay taxes, the government takes money from you, you have no say in how it is spent, and it will be spent stupidly if for no other reason than to annoy you – just like child support. If you value your sanity, you will not look into any detail on how your tax dollars are spent, neither should you you pay attention to how your child support money is spent. Cover your ears, close your eyes, and sing a happy song to yourself if you have to, without a change in conservatorship, there is not much you can do about how that money is spent.

What if I can’t pay your child support? First of all, not paying your child support can cause you a lot of problems, but seeing your kids is not one of them. Make sure you do what you need to do to enforce your visitation above all. If your ex says you cannot see your kids until you pay up, go to pick them up anyway; but document, don’t argue. You can come back later to try and get the time you missed through an enforcement.

Second, don’t just skip payments. If your circumstances have materially and substantially changed — you have had other children, you have gone on active duty, you were injured, etc., then your support order can be modified. If you have lost your job, it is going to be harder to get a reduction but it may be worth a try. The important thing is to do everything you can to support your child and to be able to show that you have been doing everything you can to support your child.

Child Support CYA Checklist

_ Open a rainy day account and deposit 25% of your child support payment amount every month for the first year, 15% the second, and 10% after that until you have a year’s worth of payments saved up.

_Be polite to your Ex. It’s good for your kids, and your blood pressure.

_ Save your performance reviews.

_Review and update your résumé every six months.

_If you lose your job, get a haircut and start mailing your résumé that day. Keep a diary of everything you are doing to find another job. Imagine what someone could criticize you for not doing enough in your search. Immediately seek a child support reduction.

 

What if I am not getting my child support, or it is consistently late? In that case you have a couple of options: the Attorney General’s Office or a private attorney. A private attorney is going to represent you, while the Attorney General’s Office represents the State of Texas. If your ex has money and you can come up with an initial retainer, then a private attorney is probably your best bet. A private attorney can move fairly quickly according to your direction and should be able to collect attorney fees from your ex. Attorney fees earned to collect child support can usually be enforced with jail just like child support.

If you have an ex that habitually and intentionally avoids paying child support and goes into hiding every time he gets out of jail, then you will probably be better off letting the Attorney General enforce it; otherwise, you might end up out the attorney fees as well as the child support owed.

Possession and Access

You have a right to possession of your kids if it is in the order. You have a right to see them on the dates and times indicated in your order. So why does it get complicated? Sometimes it is innocent – the kids have some activities they want to do; sometimes it is not – the other parent schedules the kids for something during your time. Sometimes a parent has the child call to ask the other parent for permission to attend an activity instead of visitation. These are tricky situations to deal with and you should discuss them with an attorney or family counselor to get specific advice, but, generally, schedule makeup time in writing or go to court and enforce the order. Judges have seen the games parents play in these situations so try to be calm and smart and do all of the right things.

Making Important Decisions

These decisions could be allocated differently in your order so it is best to check or seek legal advice. In general, both possessory and managing conservators can usually make their own decisions concerning moral and religious training, non-invasive or emergency medical treatment, decisions about education health and welfare, and how to discipline the child. Often there are strong disagreements about how the other parent makes these decisions, but unless it is having a significant impact on the child’s health and welfare, you may need to learn to live with it.

Information About Your Child’s Health and Welfare

If the other parent is not keeping you informed about your children’s health and welfare, go to their doctor’s office and get a copy of their complete medical records. If the other parent won’t tell you who the children’s doctor is, then file an enforcement if you are entitled to medical information in your order. Hiding information about children’s health is a big red flag. Maybe it is being done out of spite, but often information is withheld because someone has something to hide. Parents can see things that absolutely shock them when they look at a full set of medical records for the first time.

Many schools have student records online and you should certainly look at those, but it doesn’t hurt to get first hand information from students and counselors. Being the possessory conservator does not make you a second-class parent. Even if communication with your ex is good, a different set of ears listening to school officials can be helpful, and your order should say that you have a right to consult with school officials.

Conclusion

Parents don’t lose the right to participate in raising their children when they break up or get a divorce. These rights can be enforced. If you feel like your custody rights are being denied by the other parent, call an attorney for a consultation. Your kids only grow up once, and they have a right to your support and guidance.