When Cultures Clash

When Cultures Clash–

Divorce, Remarriage, and Children.

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

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

Cognitive Dissonance

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

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

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

Our culture informs our reality

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

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

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

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

Alienating a parent

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

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

What should I do?

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

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

Texas Sanctuary City Law Changes

Texas New Sanctuary City Law.

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

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

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

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

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

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

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

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

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

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

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

What should I do?

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

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

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

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

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

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

Review the Evidence of Order Violations

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

Determine the Correct County to File your Motion for Enforcement

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

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

Prepare the Motion for Enforcement of Possession or Access

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

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

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

File the Motion for Enforcement of Possession or Access

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

Serve the Citation, Motion, and Order to Appear

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

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

Good Luck!

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

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.

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

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

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

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

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

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

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

Why We Need Federal Expunctions

Why We Need Federal Expunctions

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

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

The problem

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

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

The solution

Be Public Servants

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

Remove Unequal Barriers to Employment through Expunctions

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

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

Advantages

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

Disadvantages

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

Obstacles

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

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

Conclusion

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

Child Custody Rights in Texas

Child Custody Rights in Texas:

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.

Biggest Mistakes in Child Custody Order Enforcement

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

There have been hundreds of changes to the family code effective September 1, 2015. You can enforce almost any provision of a custody order by contempt, but not if you do not follow the enforcement process to the letter which begins long before you are ready to file an enforcement action. This article is not a comprehensive guide to enforcement, but what I believe are the five biggest mistakes that can shut down attempts to enforce an order by contempt.

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

You cannot count on enforcing an order solely based on what the other parent does. Enforcement starts with you doing your part long 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 get a call from Lilly saying she is in Brazil and will not be at 1600 Pennsylvania Ave., if you want to enforce your order with contempt, then you have to go to pick her up at the location where you are supposed to pick her up at the exact time you are supposed to pick her up and wait there long enough to determine that she will not be there. You knowing she will not be there will not cut it in court.

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 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 he knows ahead of time exactly what the order was that he failed to obey. You have to copy, word for word, every portion of the order that was violated. This is especially tricky with possession violations because there are usually two provisions that need to go in your motion, the possession schedule and the location and means by which the child is supposed to be surrendered.

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 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 knowing what order he was supposed to obey, the violator must also have notice of exactly how he failed to obey it. The way to do this is to start by writing the order, and then replace 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 $4000.00 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 who violated the order, that there was an order, that the defendant had notice of the order, and finally, how the order was violated. The first two are fairly easy, 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 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. If your visitation was denied it is helpful if you had witnesses. If the part of the order violated requires documentation to prove, be sure to 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 might 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

Enforcing a Texas custody order requires diligence, planning, and attention to detail. Your pleadings have to be written properly and served properly. Before that, the parent wishing to enforce must have done his part to put the other parent on the hook. Long before that, the order needs to be written specifically enough to be enforceable by contempt. If you wait until you are fed up with the other parent’s violations before you start thinking about enforcement, then you may have waited too long. Start thinking about how you will enforce the orders the day they are signed.

Call 972-268-6927 for assistance or see TexasLawHelp.org for self-help and assistance in locating free legal services.

Child Custody Laws in Texas

Child Custody Laws in Texas:

The Texas Legislature has made hundreds of changes to the Family Code effective September 2015. If you have a critical child custody issue and are looking for answers, be sure to consult with an experienced attorney to confirm anything you might learn on the internet. As I tell all my clients, do not take legal advice from your ex. Of course your ex is going to tell you you are going to lose your case; you need to get your legal opinions from your own lawyer. If you can’t afford your own lawyer, contact Legal Aid.

Brief Summary:

  1. A custody suit is referred to as a Suit Affecting the Parent-Child Relationship, or SAPCR (pronounced like sap sir) for short.
  2. The primary consideration is the best interest of the child.
  3. Not everyone has standing to sue. See details below.
  4. A court can issue temporary relief to protect the health, welfare, or safety of the child.
  5. Any provision of a temporary or final SAPCR order can now be enforced by contempt.
  6. Most orders require notice and hearing.
  7. You can use Alternate Dispute Resolution services.

Suit Affecting the Parent Child Relationship (SAPCR)

A SAPCR is a special kind of lawsuit in Texas. A SAPCR suit is a suit concerning possession, access, and support for a minor child. It is different than other types of lawsuits in that the parties are not not supposed to be fighting for their own interest but on behalf of their children through their capacity as parents. A SAPCR is also unique in that it does not have to be contested. Parents can and often do agree on arrangements for the care of their children, but those agreements should always be formalized with a court order.

The suit begins with the filing of an original petition asking the court to render specific orders regarding possession, access, and child support for the children. The party filing the petition is called the petitioner and the other party is called the respondent. The respondent must either be given notice of the suit in accordance with the Texas Rules of Civil Procedure, or file a signed and notarized Waiver of Service. The waiver can waive all participation in the suit, but usually is more limited – including just waiving formal service of the petition since this is often an extra unnecessary expense if both parties intend to seek a final order from the court. The respondent has a limited amount of time to file an answer or risk getting a default judgment.

While the suit is pending, the parties can perform discovery. Discovery may include Rule 194 Requests for Disclosure, interrogatories, requests for admissions, requests for production of documents and tangible things, depositions, and subpoenas. A Rule 194 request is information that the other party must provide when asked under the Texas Rules of Civil Procedure, including the legal theories and factual basis of a parties claims and defenses, the names of persons having knowledge of relevant facts, a list of expert witnesses, etc. Interrogatories are lists of a limited number questions that the other party must answer under oath. Requests for admissions are lists of a limited number of facts which the other party must either admit or deny under oath and are used to simplify or limit the number of issues contested in court. Requests for productions of documents are used to obtain information abut the other party’s assets, income, or anything that may be relevant to the investigation of issues in the case. Depositions are examinations of witnesses under oath. Finally, subpoenas are demands to appear as a witness or produce documents and are issued by the court or an attorney under the authority of the state of Texas. These are powerful tools that can be used to gather the information needed to prosecute a SAPCR case.

The suit ends when the case is dismissed or the judge enters a final order after a hearing. A hearing could be a jury trial where the jury decides some specific issues and the judge decides others, a trial before the court where the judge decides everything, or a prove up where the parties agree and one side goes to court to present the agreement to a judge who will usually sign the final order immediately.

The Best Interest of the Child

A SAPCR case is always about the children. While any evidence related to the children’s best interest could potentially be important to the court, it is worthwhile to start by using what are known as the Holly factors which include:

  1. the desires of the children;
  2. the emotional and physical needs of the children now and in the future;
  3. the emotional and physical danger to the children now and in the future;
  4. the parental abilities of the individual seeking custody;
  5. the programs available to assist the individual;
  6. the plans for the children by the parent and the individual seeking custody;
  7. the stability of the home;
  8. the parent’s acts or omissions that indicate that the existing parent-child relationship is not a proper one; and
  9. any excuse for the parent’s acts or omissions.

Assembling evidence around these factors is an important part of any custody case, but these are not the only considerations so evidence gathering should not necessarily be limited to these considerations. The end result of a SAPCR will be a parenting plan, support order, and other miscellaneous orders such as geographic restrictions signed by the judge.

Standing

Standing in a SAPCR can be a complicated, hotly litigated issue. In general, though, if you can answer yes to any of these questions then you likely have standing to file a suit:

  1. Are you a parent of the child?
  2. Are you a sibling of the child and are at least 18 years old?
  3. New! Are you a sibling of a child separated from you by the Department of Family Protective Services?
  4. Are authorized by the court as a representative of the child?
  5. Do you have a right of possession or access by order of a court in another state or country?
  6. Are you the guardian of the estate or of the person of the child?
  7. Do you believe that you are the child’s father?
  8. Did the child primarily live with you for at least six months ending (if at all) not more than 90 days ago?
  9. Did the child’s parent or managing conservator live with you for at least six months ending not more than 90 days ago and that person is deceased?
  10. Were you a foster parent of the child for at least 12 months?
  11. Are you a close relative of the child and the child’s parents are deceased?
  12. Have you been named a prospective parent in a verified written statement to confer standing?

This list is not comprehensive. A “yes” does not guarantee standing and all “no” answers does not preclude standing. You should talk to an attorney assess your particular situation.

Temporary Relief

Temporary relief that can be ordered by the court includes a temporary restraining order, standing order, injunction, and any other temporary order rendered by a court. Temporary orders are made for the safety and welfare of the child and can provide for relief such as temporary support, conservatorship, attorney’s fees, and geographical restrictions. Temporary restraining orders excluding a parent from access of a child can be issued without notice only if the pleading states “specific facts showing that immediate and irreparable injury, loss, or damage will result before notice can be served and a hearing can be held.” Tex. Fam. Code 105.001(b)-(c). Moreover, effective September 1, 2015, a motion for temporary orders in a modification suit must include “an affidavit on the person’s personal knowledge or the person’s belief based on representations made to the person by a person with personal knowledge that contains facts that support the allegation that the child’s present circumstances would significantly impair the child’s physical health or emotional development.” Tex. Fam. Code 156.006 (b-1).

IMPORTANT: If you cannot afford an attorney and are the subject of a temporary restraining order or order attaching your child, the court may now have the authority to appoint an attorney ad litem to represent you in the case. If you cannot afford an attorney, be sure to let the judge know!

Contempt

Any provision of a child custody order, including temporary orders, can now be enforced by contempt. Contempt must be proven by evidence beyond a reasonable doubt and a defendant who cannot afford an attorney is entitled to court-appointed defense counsel. Therefore, if you have any issues with the other party not adhering to orders, call an attorney immediately for advice on how to get the evidence you need to prove your case. Even if you do not want to file an enforcement, if there does come a time when you need to enforce the order, you will want to have done things right from the beginning.

Alternate Dispute Resolution

You have several options to resolve your custody dispute that may provide better outcomes for you and your children than a trial. Alternatives to litigation include Collaborative Law, Mediation, and Arbitration. These will not necessarily be less expensive than litigation, but they remove the uncertainty of a judge’s decision and may allow parties to agree to orders that a judge otherwise does not have the power to grant.

Collaborative law, while not necessarily less expensive than an adversarial proceeding offers a process by which skilled professionals can help you resolve your disputes outside of the public eye in a way that can lead to the best outcome for everyone. It is a confidential, voluntary procedure that both parties must agree to. Instead of one proceeding, the case is spread out among several professionally facilitated face-to-face meetings in a client driven process based on the values, goals, and interests of both parties. The parties do not have to get along – they only have to agree to the process; however, it may not be suitable for cases involving domestic violence. Collaborative law is best started early in the proceedings, even before anything has been filed with the court if possible. Each party must have its own lawyer. Settlements are neither guaranteed nor mandatory, but if a settlement is not reached the attorneys involved must be fired.

Mediation is a confidential process by which a professional, neutral facilitator assists in settlement negotiations. Unlike other forms of ADR, mediation can be ordered by a court and in some courts is always mandatory. Mediation usually happens late in the process after discovery when both sides have a good idea how strong their cases are. Thus, mediation is often risk-based and serves as a way for both sides negotiate an outcome close to or better than what they think they can get in court without all of the risks associated with a trial. If a settlement is not reached, the parties can continue to negotiate or take their case to trial.

Arbitration is also a voluntary process involving an arbitration panel. Rather than facilitating negotiations, an arbitration panel hears both sides of a dispute and renders a decision based on the law and the facts just like a judge would in court. The parties decide beforehand whether the decision will be binding or advisory. An arbitration may be useful in getting a decision earlier than a court would, for deciding some issues that – once decided – would permit the parties to settle or horse-trade on the others, or, in the case of non-binding arbitration, in getting a decision that the parties then decide whether they can live with rather than going to trial.

Conclusion

Do not take legal advice from your ex. Do not think a court trial is the only way to resolve your custody disputes. Do consult with an attorney, research and discuss alternate dispute resolution options with the other parent before retaining an attorney. You want to hire an attorney who is at least open to the idea of ADR. Do know your rights. Do not be afraid of what your ex might do if you try to enforce your rights. Do not be afraid to call an attorney for a consultation. Do get advice early and often. Finally, if you remember nothing else from reading this: Do not take legal advice from your ex.

Good Luck!