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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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Wrong, NY Post, Fathers Matter and Texas is a Great State

Wrong, NY Post, Fathers Matter and Texas is a Great State

Co-Parenting

This NY Post article1 is sad, but not for the reasons the NY Post thinks. Fathers matter, and mothers matter. Having a destructive attitude that you alone are raising your children is bad for you, it is bad for the kids, and it is expensive.

I won’t analyze the article in detail, but I will leave a few takeaways here:

  • Divorced parents are not forced to remain in Texas. You can always leave the children in the care of the other parent.
  • Leaving your children in the care of the other parent in Texas is not “losing them [altogether].” It is losing the right to designate their primary residence and collect child support.
  • Kidnapping is illegal in almost every state.2
  • “Bless your heart” is not always a complimentary expression in Texas.

The Poison

I don’t know the specifics of Kripke’s case, so I am speaking in general terms. Non-primary parents are Mothers and Fathers, not visiting relatives. The default is Joint Managing Conservatorship, which means that the children still have two parents. The parent who designates the primary residence often thinks that they are the boss of both households, which is not the case.

The problem is that parents with this wrong attitude often poison their children’s minds against the other parent. In the short term, this leads to expensive litigation, enforcements, parenting coordinators, psychological evaluations, etc. In the long term, it leads to the children having unhealthy relationships of their own.3

.

When I lived in Texas, I hated Texas, and I said it out loud, even to my kids

This is not great co-parenting

The Cure

Unhealthy attitudes are common whether the primary parent is the mother or father. If you think you are the exception and the other parent in your case really is a spare, seek counseling for yourself and your children. Even if you are right, a professional family counselor can provide invaluable expert advice to give your children the best shot at growing up emotionally healthy. Your kids will love you all the more for it.


1 Archive: “I was forced to raise my kids in Texas for 14 years,” NY Post (archived 24 Dec 2017 11:14:29 UTC)

2 See: “How to File an Enforcement by Contempt”

3 See: Divorce Poison: How to Protect Your Family from Bad-mouthing and Brainwashing by Dr. Richard Warshak, William Morrow Paperbacks; Revised ed. edition (July 12, 2011), https://smile.amazon.com/Divorce-Poison-New-Updated-Bad-mouthing-ebook/dp/B00526ZLMY

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Victim Monsters

Victim Monsters

Belief Systems

Belief systems are powerful, and when shared by a population, they build civilizations up or burn them to the ground.

Before he died, a distant relative sat down with me and humbly told the story of how he gave his wife a black eye. He did this with all the boys in our extended family at a time when we were old enough to understand but young enough to shape our belief system. He wanted us to grow up with a deeply held belief that it is never okay to strike a woman.

Belief systems define who we are and are difficult to change. I could post a hundred scenarios where you think a woman deserved to be hit, but my subconscious completely rejects the input as absurd or rationalizes why it does not matter. Belief systems are powerful, and when shared by a population, they build civilizations up or burn them to the ground.

Bailif, club this man

A “Men’s Problem”?

Recently, I was at a domestic violence conference where a speaker asserted that “domestic violence is a men’s problem.” He went on to say something about not caring if it offended people, that it should offend people, and his belief was backed by statistics saying women are overwhelmingly the victims. In other words, that is his belief system, and he will rationalize why any contrary information does not matter. So, let me give you that contrary information, and then tell you why it does not matter

First, let me tell you a little bit about my experience with domestic violence. Not only have I seen it in my professional practice, but I’ve witnessed it with family and friends.

Case 1

Arnold and Ann have a child together. Both parents have drinking problems. When Ann gets drunk and upset, she throws things at Arnold. One day, Ann became especially angry and started throwing items at Arnold and punching his head and body while he was holding their baby. Arnold kicked Ann out, and she called the police and had Arnold arrested. Ann, it turns out, has done this with at least two other boyfriends. The truth was only revealed later when she attacked the wrong person.

Case 2

Previously, Ben was arrested for beating his wife, Betty. The attack was so severe that she required hospitalization. But he used the kids as leverage to get his wife to come back, and she never prosecuted him. One day when they were both drunk, they had an argument, and Betty locked Ben out of the bedroom and passed out. Ben decided to retaliate for his prior arrest by filing a false report that Betty pointed a gun at him. Police records showed multiple inconsistent statements on Ben’s part, including bizarre claims that Betty’s prior injuries were due to her own clumsiness. And yet, because Betty doesn’t remember anything, she is labeled a perpetrator and indicted for family violence assault with a deadly weapon. “She pointed a gun at me” almost always wins over “I don’t remember what happened.”

How do you tell who is the victim and who is the abuser? The victim is probably the one you don’t like. Think about it. Is it the popular kid being beaten up at school, or is it the popular one doing the beating? Abusers are masters at manipulating other people’s belief systems – not just their victims’. It is downright creepy hearing the support an abuser receives from family, friends, and fellow church members against the victim. I wish I could repeat some of the things they say.

Anecdotal versus Statistical Evidence

These examples may not matter to you because they are anecdotal evidence, which refers to evidence derived from individual stories and experiences. It is often dismissed as immaterial because it is considered less reliable than large scientific studies. This, however, is another belief system that you should challenge.

Your belief system may prevent you from considering this latter possibility and questioning the validity of your assumptions.

While statistical evidence is more reliable, it is only as reliable as what it measures. For example, if I go to the courthouse and count the number of men and women in suits, I should get a good indication of how many lawyers are there. Why do it that way? Because it is more efficient than asking everyone to show a bar card. It’s important to remember, though, I am not measuring lawyers, I am counting people in suits and assuming that is a good proxy. My assumption sounds reasonable, but it could be way off. Domestic abusers do not carry around domestic abuser cards. We can only count arrests, admissions, complaints, or some other proxy. Nobody can go back in time to see what really happened.

In my anecdotal experience, the number of male and female victims are about even, and the number of wrongful arrests and incorrect findings of domestic violence is frustratingly high. In the two examples above, a study counting arrests would find three female victims and one male victim. Case 1 revealed one female victim when it was actually one male victim. Case 2 showed one male victim when in reality the female was a victim twice. So, the study is flawed.

Maybe my anecdotal data is completely unreliable, and I am an outlier in the statistics. Or, it could be that studies matching my experiences better reflect reality. Your belief system may prevent you from considering this latter possibility and questioning the validity of your assumptions. See, for example, this story: “Women more likely to be perpetrators of abuse as well as victims“. University of Florida News (last visited October 30, 2017).

Being a Victim

At this point, it may help to talk about why victims return to their abusers. As I said before, abusers are masters at manipulating people’s belief systems. An idea that they instill in women is that if they leave, they will lose their children forever. For men, the notion is that if they leave, they will be arrested, ruining their lives and reputations. Thanks to the belief system that domestic violence is a men’s problem, this is sadly a very real risk.

If you are not willing to have your belief system challenged and instead want to silence or shut out contradicting information, then you are part of the problem.

How do men become victims in the first place? Like me, many men are instilled with the belief system that it is never okay to strike a woman. They live in fear that if they lift a finger in their own defense, they will be prosecuted. Women have fingernails, hands, feet, and whatever weapons are handy that are capable of inflicting damage and pain. Imagine you are that guy in school who was beaten up all the time. Now, you are being hit by your wife, and your self-esteem is entirely wrecked. If you call the police, you risk being arrested. If you leave, you also risk being arrested. In either case, do you really have any options?

Whose Problem is It?

The more important the problem is, the more ideas and perspectives are necessary to solve it.

So, how can we determine whether domestic violence is a men’s problem? In my opinion, that’s the wrong question. The question should be, “What use is a belief system that says domestic violence is a men’s problem?” All around us, there are victim monsters in pretty floral dresses with bright eyes smiling at you, and victim monsters wearing dashing suits giving you friendly handshakes and pats on the back. Does it matter if 4 or 40 percent of victims are men? The children in their homes see horrible treatment and abuse of their mothers or fathers. What belief systems are being wired permanently into their little brains? Let’s focus on that.

If you are not willing to have your belief system challenged and instead want to silence or shut out contradicting information, then you are part of the problem. You may see yourself dedicating your life to standing up for what you believe in, but you aren’t. The more important the problem is, the more ideas and perspectives are necessary to solve it. And yet, today we do the opposite

Listening is Better than Pontificating

Aren’t some things worth a broken ego? How about we don’t shut out ideas we don’t want to hear? Why not put the problem of domestic violence above our belief systems and listen? Are ideas that challenge our deeply held beliefs scarier than the monsters they might be creating?

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Emergency Guide: Temporary Custody or Protective Order Hearing

Emergency Guide: Temporary Custody or Protective Order Hearing

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

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

Bailif, club this man

Theme

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

 

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

For example:

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

Core proof required:

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

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

Custody: Best interest of the children.

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

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

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

Objections

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

 

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

The most important objections are:

1. Objection, non-responsive

2. Objection, hearsay

3. Objection, settlement offer

4. Objection, relevance

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

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

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

Always have three copies of everything you want to introduce.

 

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

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

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

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

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

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

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

Final thoughts on objections

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

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

How to Admit Documents

It is always best to have an attorney present.

 

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

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

How to admit text messages or e-mails:

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

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

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

4. Offer Exhibit Mom-1 into evidence.

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

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

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

How to admit pictures:

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

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

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

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

5. Offer Exhibit Mom-2 into evidence.

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

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

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

How to admit business and medical records with a witness:

1. What is your full name?

2. Whom do you work for?

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

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

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

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

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

7. Offer Exhibit Mom-3.

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

Possible objection: Hearsay within the document.

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

Witness examinations

1. What is your full name?

2. Whom do you work for?

3. Where do you live?

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

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

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

Cross Examinations

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

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

• Know the answer,

• Don’t care what the answer is, or

• Have proof of the answer and can demonstrate dishonesty.

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

Examples:

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

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

Examples:

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

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

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

Subpoenas

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

Conclusion

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

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


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

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In Defense of the Pro Se

In Defense of the Pro Se.

How Censorship Hurts the Poor

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

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

 

A man was fired to end a discussion.

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

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

 

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

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

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

 

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

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

Private meets public censorship.

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

Rights you do not know about are often rights waived.

 

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

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

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

Consorship is the great and terrible equalizer.

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

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

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Jail for Overpaying Child Support?

Jail for Overpaying Child Support?

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

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

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

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

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

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

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

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

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

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

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

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

How Stories Like this Hurt You.

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

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

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

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

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

What Should I do?

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

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

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


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

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

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Scientific Evidence

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

Science Doesn’t Lie

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

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

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

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

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

Or Does it?

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

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

So what if it does?

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

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

Mental health professionals are increasingly used in criminal cases.

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

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

So what if it doesn’t?

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

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

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

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

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

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

What are the implications?

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

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

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


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

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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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