You can spend thousands of dollars on an estate plan that fails to account for the fact that some unhappy person — possibly an emotional wreck — is going to have to execute it someday. It is like spending top dollar on a supercar but the driver doesn’t how to drive a manual shift and, worse, no one knows where it is parked. Your estate plan isn’t done until you are confident that your administrator can find and follow it.
Often family members don’t understand the law and think they are entitled to just come in and grab what they want when a family member dies. I don’t do probate law and I don’t know where you live, but I skimmed through a dozen or so answers that didn’t seem very helpful, and there are some general principles that apply.
Most importantly, the estate survives the decedent and owns all of the property that belonged to her. Anything removed from the control of the estate without permission is stolen property. It’s important to get an administrator for the estate as soon as possible after someone dies to secure all of the property so that it can be inventoried.
Assuming that your mother died without a will, someone with standing would have to go into court and initiate probate proceedings to have someone appointed to administer the estate. As the son or daughter, you would probably have standing to do this. You would need a lawyer.
Once someone is appointed administrator, that person would be responsible for securing the estate’s assets. That includes contacting all of the relatives who took things and requesting that they return them, or suing or reporting them to the police if they don’t. The administrator may also be able to sue the landlord for any items that could not be recovered or for the expense the administrator incurred retrieving all of the property that was stolen from the estate.
The administrator has a legal duty to protect the estate assets and insure that they are distributed according to the will or the law. That means the administrator needs to be someone who is tough and fair and will not be squeamish about using any legal means necessary to return the property.
What Can Frog Gigging Teach Us About Marriage and Estate Planning?
I was looking to try some new outdoor activities when I stumbled across frog gigging. Frog gigging, for those who don’t know, involves using a long pole with prongs on the end to spear frogs for food. I have never done it before – I am still waiting for an invitation, but I did watch some videos of it online and thought, Frog gigging is a great analogy for wedding vows.
It starts with focus.
Getting married is like gigging a frog. Working backward, before gigging the frog you were focusing all of your attention on it. You didn’t notice the leaves rustling, the dogs barking, or the airplane flying overhead. You only perceive the frog that is the focus of your concentration and the drifting of the boat that causes you to automatically adjust your aim. Before that, you had to get the light on the frog. To do that you had to gather your equipment, get on the boat, make sure you had a bag with you. All sorts of things lead up to that final moment.
A good, holistic estate plan will help you focus on gigging the frog as well as gathering all of the equipment you need.
You don’t consciously ignore all of the distractions around you. You decide to focus your attention on gigging the frog and your brain figures out what information is important to pay attention to.
In your wedding vows, instead of gigging a frog you are gigging “until death do us part.” People don’t like to focus on that because we are uncomfortable thinking about death.
We tend to travel in the direction our head is facing.
However, our brains have a big, powerful subconscious that we can get working for us. If you focus your concentration on “until death do us part” that will instruct your subconscious to put energy into finding things that will help make that happen and filter out distractions that will get in the way. You do this all of the time:
“I am going to remember where I parked my car.”
“I am going to get an A in my spelunking class.”
That’s why we call it, “Setting your mind on something.”
A good, holistic estate plan will help you focus on gigging the frog as well as gathering all of the equipment you need. I had an epiphany one day when talking to Ginger, who was seeking a divorce. All her problems could be traced back to her and her husband not being intentional about their finances. Ginger wanted to retire and her husband had expensive hobbies. They argued over money and the arguments got so vicious that she didn’t want to be married to him anymore — especially since her husband’s spending was putting her retirement at risk.
It occurred to me that most of Ginger’s problems would have never materialized if she had marital property agreements, a financial plan, and an estate plan early in her marriage.
A plan doesn’t make itself.
Working backward, a holistic estate plan not only covers how your spouse will be taken care of when you die but also how your estate will be managed while you are alive. Property allocated into separate estates held in trust gives maximum control over how it is distributed on death. Moreover, with the help of financial planners, the family’s trust assets can be managed so that Fred’s expensive boat restoration hobby doesn’t put stress on Ginger’s retirement goals. A major source of discord gets intentionally managed because everyone gets his own pond to gig in.
We don’t do estate plans because you are going to die. We do estate plans because you will always be together.
Is it a good idea to put yourself on child support? Yes, if you don’t want your daughter to become a stripper.
Financial realities.
Before we get to that, there are some financial realities to consider.
Separated parents often run into financial or health problems and need state services. If that happens, the government is going to come after you for support. Even if it doesn’t, the other parent could decide at any time she wants a support order. When you are hit with a support order, you could end up with retroactive support and no credit for the support you provided informally — not to mention the attorney fees you will have to pay.
On the other hand, with a child support order, your payments will be fixed and locked in for a few years and your expenses will be stable other than unexpected medical bills. Moreover, if you all are friendly about it, you could negotiate a lower amount than what you would wind up with in court.
It could end up costing way more to avoid support than it would to set it up voluntarily.
Relationship realities.
Next, let’s consider the less obvious impact of a support order on your child.
People have a limited field of view when it comes to support. For paying individuals, one parent is getting money taken out of his check every month and the other is buying new shoes. For the government, it’s all wrapped up in satisfying duties and obligations for the benefit of the child.
However, from a relationship standpoint, child support is more than dollars and cents. If Dad is having child support withheld from his paycheck every month, that’s going to free up Mom’s headspace from begging you for money and free yours from thinking of ways to turn her down. That freed headspace is now going to be available for your brains to use their energy in more profitable ways, including improving your relationship with the other parent and your daughter. Moreover, those financial uncertainties that were trickling down to your daughter are going to be gone, freeing up her headspace for better uses of her mental energy. In addition, she’s not going to feel like she is in the middle so much, which is going to help her self-esteem so that she doesn’t grow up to become a stripper.
Get help.
The important thing is to understand that there are resources out there today that you should be taking advantage of. Professional financial planners and career coaches can help you to make the best use of the resources you have and to advance your career in a way that will make you feel more fulfilled — whether it’s internally within your current company or externally with a new one.
The most vivid image I have of May in my mind is her sitting up in her hospital bed, proudly signing her will. She was smiling, proud, and regal. She was the queen, and all of us participating in her signing ceremony were her subjects.
Years later, after I became an attorney, I redesigned her estate plan based on my experience probating her will and what I knew about her, her family situation, and her values. The most important thing the experience taught me is that you are the king or queen of your estate, and your survivors are your loyal subjects. They will still look to you for guidance after you are gone and deeply want their decisions to please you.
As a good king or queen, you love your subjects and want to make it easy for them to please you. You won’t leave them with forms that you filled out and expect them to perform their duties. You will think about all of the decisions they will have to make and decide ahead of time so they don’t have to. Moreover, you will leave them with stories and share your values so that they can more easily make those decisions that you can’t make for them. Finally, you will anticipate problems they will have executing your will and give them any tools that you can to help your subjects resolve them.
Estate Planning isn’t a democracy. You want to minimize factions, fighting, and decision making by giving as many specific instructions as you can. Get the advice you need from your advisors and then go and be king or queen. It will free your loved ones’ minds to think on better things.
First, you should carefully read your orders. In general, you have a First Amendment right to post videos of your children. Absent special circumstances a court can’t order you not to.
Communicate Appropriately
The general advice I give is that a parent should give the legally required responses in a friendly way. For example, if your ex sends you an irate long-winded email asking why your son is in the hospital, you would simply respond along the lines of, “Jason sprained his ankle playing football. nothing is broken. The doctors expect him to be able to play again in 4–6 weeks.”
On the other hand, if your ex sends you an email demanding you refrain from posting pictures of your children, then no response should be sent because no response is legally required — assuming nothing in the orders or your local laws suggests it is.
How Easy is it to Get a Divorce in Texas if Both Parties are in Agreement?
Sometimes people come to me wanting to get a divorce where they think they are already agreed. Couples don’t necessarily know the consequences of their agreements and how they could affect their futures. Here are some issues you should consider when you are seeking an agreed divorce.
Problem 1: Do you have Children?
If there are children involved, who is going to have primary custody, what is going to be the visitation schedule, who is going to make decisions regarding the children’s physical and mental health, education, and religious upbringing? Have you truly thought through what could lead to disagreements in these areas and how they will be resolved? Once the other parent gets a boyfriend or girlfriend, attitudes in these areas are likely to change.
What is child support going to be? Do you have proof of income to determine the amount based on your state’s guidelines? Is the obligor going to pay guidelines child support? Is the reason the obligor paying under guidelines because it is honestly in the best interest of the child, or is it in the best interest of the obligor?
Have you come into an agreement on all of these issues because you are putting the convenience of an agreement above the best interest of the children? How can you be sure? Have you had a neutral third party evaluate and confirm that your decisions are in the best interest of the children?
Problem 2: Do you have a home or other assets?
Will the parties sell the home or let one keep it? If one party is going to keep it, are both going to stay on the mortgage and title? How are you going to ensure that the party out of possession’s credit and interest in avoiding waste are protected? Have you talked to a divorce lender about an equity buy-out? For example, you should know how to pre-qualify and what language needs to go into the divorce decree to protect everyone’s interests.
Do you have any other assets? Do you have bank accounts, brokerage accounts, bonds, life insurance, or any other financial assets? Are you sure know about all of the financial assets of both spouses? What if you find out later divorce that an asset has not been disclosed?
Do you have any retirement accounts? Have you accounted for the value of your retirement assets? Is there enough other property to divide with enough value to avoid splitting the retirement accounts? If not, do you have language for the decree and QDROs to ensure that the division complies with ERISA and the specific requirements of the plan administrators?
Problem 3: Do you have any personal property, collectibles, motor vehicles, etc.?
Have you created sworn inventories of all of the property and how much it is worth? Are you in agreement over how much everything is worth? Have divided the property evenly and added up all of the agreed values to determine if it is a fair division. Are you sure all property has been accounted for?
Is there any separate property? Has one party used community funds to improve or maintain separate property? Are there community assets that one party has used separate property funds towards the purchase, improvement or maintenance of? Does it matter?
Problem 4: Do you have any debts?
Does either party have any debts that the other will still be liable for after the divorce is finalized? Have you talked to a credit management expert to make sure your credit is protected during and after your divorce?
What are you going to do about tax liability? Who was responsible for filing tax returns during the marriage? What if they were under or over-paid? Will the IRS be coming after you if your spouse took deductions that are later disqualified?
Problem 5: How will you live after your divorce?
Have you talked to a financial planner to determine how to reach your financial goals after divorce? Is it better to take a big cash payout, an interest in the retirement account, or spousal maintenance secured with a lien? Do you want to go back to school, save for your children’s college, or retire? Do you know how exactly how you can accomplish any of the things you want?
Divorce is extremely traumatic.
Agreement doesn’t make the divorce less traumatic, it just reallocates the trauma–either in a way that either one party bears the brunt of it or in a way that is fair. Getting an agreed divorce that works best for you and your goals is extremely difficult unless you have no children and no community property.
You are getting a divorce for some reason. You are going to have competing interests with the person you are divorcing. It can be extremely easy for one side in an agreed divorce if the other side rolls over. That doesn’t reduce the difficulty it only pushes it all onto the loser. A fair divorce is hard, but very doable by agreement.
If you get along well enough to work out an agreed divorce, consider deciding not to get divorced. Sometimes you can’t avoid it because of abuse, infidelity, or other serious issues. However, if it’s a difficult decision, decide not to. Once you make a decision, your subconscious can start working on ways to make things work.
First, you must decide whether you need a divorce. This isn’t always as easy as it sounds. You think that a divorce will solve some problem that you have. If your spouse is abusive or cheating on you, then divorce is likely to be the better option in dealing with it. But if the problems are financial, emotional, or something else, you may have better ways to solve your problem. Even if you think you have “tried everything,” chances are you haven’t tried anything half as emotionally and financially draining as a divorce.
2. Preparation.
How are you going to survive for the first seven years after your divorce? You may not have thought that far ahead. Do you have a budget and a plan for how you are going to meet your needs post-divorce? How are you going to pay child support, rent, insurance, and all the other expenses in a divided household? Do you want to try Collaborative Law? Who are you going to hire to be your attorney? How are you going to pay attorney fees? Where will you live while the divorce is pending?
3. The Petition.
The first legal step in a divorce is to file the Original Petition for Divorce and paying the filing fee. The petition states the grounds for the divorce and the relief that the petitioner is requesting from the court.
4. Service of Citation.
After the petition is filed, it along with a citation must be served on the respondent. The citation is a document prepared by the clerk under the seal of the court that has information that the respondent needs to know in order to respond to the divorce suit. The citation and petition must be served on the respondent by a sheriff, constable, or licensed process server. The respondent can sign a waiver of service of the citation to avoid this expense.
5. The Answer.
The respondent has until the Monday following twenty days of receipt of citation to file an answer. The answer can contain a general denial, denials of specific allegations, and counterclaims. A typical answer contains a general denial and a request for attorney fees.
6. The Counter-petition.
Counter-petitions are optional. A counter-petition is a petition filed by the respondent of the original petition. Counter-petitions are filed when the respondent has claims to make against the petitioner. They can also be filed to keep the suit alive in case the petitioner dismisses his own case.
7. Temporary Orders.
Temporary orders are also optional. Parties request them to preserve assets while the divorce is pending, or to make orders regarding the children until the divorce is final. They may include a temporary restraining order or temporary injunction to make sure the parties behave themselves during the divorce process and may include an order to mediate. Temporary orders can be agreed, or a judge can decide on temporary orders after a hearing.
8. Discovery.
The discovery process is where the parties exchange information necessary to determine what will go into the final order. Discovery can start as soon as the divorce is filed and can be informal or formal. Informal discovery consists of requests between the parties or between their attorneys for information that they think they will need to finalize the divorce. It is usually cheaper than formal discovery. In formal discovery, the parties serve each other requests to produce documents, disclose certain information about the lawsuit, answer interrogatories, answer depositions, and make admissions or denials. Third parties can also be subpoenaed and deposed during the discovery process.
9. The Final Trial.
Almost every divorce ends in a final trial. If the divorce is agreed, only the petitioner typically shows up for the trial, gives evidence, and asks the judge to sign the order. Some courts allow the petitioner to file an affidavit with the final order so that no one must go to court and there is no trial. If the parties can’t agree on the terms for the final order, then either the judge or a jury will decide after a contested hearing.
10. Motion to Enter.
Unfortunately, even after the final trial is held and the judge or jury rules, sometimes parties still can’t agree on language for the final order. When that happens, the parties must appear before the judge at least one more time to have the judge rule on the language and sign the order.
What if someone pays the check and tips you with just one bill? How do waiters get that tip off of it?
As a family law attorney, I am in a unique position to give you the correct answer.
Before paying the bill:
Calculate the tip.
When paying the bill say, “Please give me X number of small bills with the change.”
After receiving change when you forgot to ask for small bills:
Say, “I’m sorry. I forgot to ask for smaller bills. Could you please break this into X.”
If you didn’t calculate the tip before you receive your change, just wing it and err on the side of giving a larger tip. At this point making your waiter wait for you to get your act together is just keeping him from attending other customers.
What does this have to do with Family Law?
Much of the reality that we “know” is built on deeply held beliefs, past experiences, and our own emotional quirks both filling in information gaps and hiding information from us. In this case, you have one piece of information that you are aware of – that you only received one large bill as change. You also have another piece of information that your brain hid from you – that you did not ask for smaller bills.
If you have had past bad experiences, such as being tricked out of money or your ex cheating on you, then your brain will filter your reality to match. In other words, your brain creates an information gap by making you ignore the fact that you didn’t ask for smaller bills. Then it fills the gap with made up stories about how the waiter wants to cheat you, is lazy, stupid, or has whatever other imagined flaws that you could not possibly know exist.
For example, if your child falls into the pool while your mom is watching him, it’s a typical childhood accident. If he falls in the pool while your ex’s girlfriend is watching him, “Holy Moses, that witch trying to murder my baby!” That’s not an exaggeration. Our emotions can make us a lot crazier. That doesn’t mean that your ex’s girlfriend isn’t trying to murder your baby. It just means the evidence you have isn’t going to get anyone else excited no matter how hard you try.
The solution is simple. Have your own set of rules that you decide on ahead of time and just live how you think you should without worrying about what is in somebody else’s head. Have a rule that you will always ask for smaller bills when paying your bill, and another that you will always apologize and ask for smaller bills when you forget.
Those rules will work in every situation whether the waiter is a scumbag or a hero, and they save you the trouble of having to pass judgment.
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.
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.
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:
time of exchange,
date of exchange, and
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:
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.
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:
You work for Delta Widget’s, don’t you?
You were arrested last year for drug possession, weren’t you?
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:
Drugs are illegal, aren’t they?
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.
What is your address?
Where do you work?
Who paid your attorney fees?
How much was the retainer?
What is your gross monthly salary?
What financial institutions do you have accounts in?
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.
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.
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.
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, seeHow 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.
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.
