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What do I do when I show up to pick up my child from the mother for my visitation and my child isn’t there?

What do I do when I show up to pick up my child from the mother for my visitation and my child isn’t there?

Don’t get emotional.

First, there is no need to get emotional. Missing a scheduled visitation can be very frustrating, especially given the inconvenience of travelling to the pickup location and waiting. Set aside your need to react emotionally and focus on what you need to do. Use a visitation procedure or checklist ahead of time so you don’t even have to think about anything. Follow your procedure every time whether something goes wrong or not.

Remember, possession schedules can be confusing! She could be mistaken about who is supposed to have the child or you could have misread something that was written in a confusing way. Sometimes an order on one page changes something in the possession schedule five pages away.

Ask if you are not sure.

Some of my old clients call me with questions about what they are supposed to do and I always try to take those calls because I don’t want them getting into trouble either. Don’t feel bad if you make a mistake, and try to be understanding when the other parent does. That doesn’t mean give up your time, you should still ask for make-up time if you are sure you are right.

Have a plan.

Visitation Checklist:

  •  Control your emotions.
  •  Keep a visitation diary.
  •  Have a copy of your order with you.
  •  Write down the exact time you arrived to pick up your children and how long you waited.
  •  If the child isn’t there or no one answers your knock, take a picture at the exchange time.
  •  Wait at least 20 minutes.
  •  While you are waiting, try to solve your problem and re-read your order to make sure it is your time.
  •  If you don’t get visitation, try to reschedule.

You should always keep a visitation diary. It should be a separate calendar, notebook, or planning book that is only used to document visitation. When you arrive at the location designated for the exchange at the designated time, write down the exact time you arrived and how long you waited. See this Sample Visitation Procedure.

Always go to the location for the exchange to pick up your children, even if the other parent tells you that you won’t be getting visitation unless you agreed to reschedule. If your child is not there, take a selfie at the time the exchange is ordered and wait at least twenty minutes. During that time you can attempt to call or text the mother to find out what is going on. You should also re-read your order to make sure it really is your time. Make a note in your diary of what you did to solve the problem. Make sure your photo is backed up to the cloud with the embedded time and location data.

Reschedule.

If you do not get your scheduled visitation, try to ascertain why in writing either through text or email messages depending on how you normally communicate. Script your communications ahead of time as much as possible so that you don’t have to think about it and you don’t put emotions into your messages that could get you into trouble. You should also attempt to schedule an extra visitation period to make up for the time that you missed. Again, note in your diary what you did to try and solve the problem.

Whether or not you should attempt legal action against the mother after missing a single visit depends on the specific facts of your case, the evidence you have, the jurisdiction where you live, and your specific judge. Only a local attorney can properly advise you of your options. See Child Custody Enforcement Mistakes.

Good luck!

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How do you get the court to see your ex as a narcissist in a child custody case?

How do you get the court to see your ex as a narcissist in a child custody case? 

Why does it matter to you for the judge to see your ex as a narcissist? What do you think the judge will do if he sees your ex as a narcissist? What do you want him to do? How will it impact your children if the judge sees your ex as a narcissist? How will it affect your goals for your children? What are your goals for your children?

The judge doesn’t have time to get to know you.

The judge is never going to feel the way you do about your ex.  This is because there isn’t much of a legal reason to care whether your ex is a narcissist or not. The court wants to make orders that are in the best interest of the children.

Unfortunately, hurt feelings, distrust, and fear of the future create emotional blinders that make us see things and react in ways that are unhelpful to our children and us. That is why we need to repair our mindsets first so that we can see a path to a better future before finalizing a divorce or child custody case.

The important thing is to think clearly.

The problem is, we see what we see and our perceptions are our perceptions. We can’t tell when our emotions are getting in the way of what we need to see. That is why even lawyers hire lawyers to help with their own cases. The fact that you need the judge to see the way you see is a hint that the emotional part of your brain might be interfering with the thinking part.

The right question to ask is, “What parenting plan would give my children the best possible future?” You then want to know, “How can I help the judge decide this is the best parenting plan?” I highly recommend that you find a licensed professional counselor who can help you think past the emotional barriers created by the conflict with your ex. That way you can better identify and articulate a plan to achieve your true goals.

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Temporary Orders – Where is my child?

Is it possible to request a change to a temporary custody order because a parent is leaving the child at an undisclosed location with an unknown person while he works?

In Texas both parents have a right to receive information about the health, education, and welfare of their children. They both have the right to be designated on their children’s records as a person to be notified in case of emergency – unless there is some reason for the court to take away those rights. (See, Emergency Guide to a Temporary Custody or Protective Order Hearing.)

New custody orders can be particularly frustrating for parents. Parents don’t necessarily understand all of their rights and duties. It’s probably more often than not that I find that a client is violating one or more aspects of their thirty-plus page order. A letter from your attorney explaining your rights to the other parent’s attorney and the consequences of violating them may be enough to fix the problem. This is also a good opportunity to do an orders audit to see if you are out of compliance yourself.

One helpful way to think of temporary orders is as an opportunity to try out a custody arrangement and fix whatever isn’t working in the final orders. You may want to start a list of issues you are having and just make sure your attorney addresses them in the final orders. It ought to be pretty simple to have the final orders require parents to exchange information about daycare providers.

Here are a few suggestions that might help your case to go more smoothly:

    • Make an outline of your Temporary Orders with bullet points for your rights, duties, exchange locations, etc.
    • Buy an appointment book and calendar the visitation schedule.
    • Write a note at the beginning and end of every visitation in your appointment book. Include at least:
      1. time of exchange,
      2. date of exchange, and
      3. any information exchanged (such as Junior has a runny nose).
    • Consider asking the judge to order the parents to enroll in one of the co-parenting web sites or apps available to help facilitate co-parent communications. A few I would suggest looking at are:
      1. Our Family Wizard
      2. Talking Parents
      3. App Close

Good luck!

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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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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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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:

Before thinking about enforcement, you need to read up on what to do when you show up to pick up your child and you do not get your visitation

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

The 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 offences. 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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