Former spouses often use informal visitation arrangements as an opportunity to assault, harass, stalk, and emotional abuse their children and former partners. In addition, some parents will use their children as a means to hurt the other parent by denying access to the child(ren) even though such access has been ordered by the court, i.e. failing to be at home during scheduled visitation periods, failing to bring the child(ren) to a scheduled location for the other parent to exercise their court ordered visitation, faking illness, etc.
Supervised visitation takes place between the non-custodial parent and his or her child(ren) in the presence of a third party who observes the visit to ensure the child’s physical and emotional safety. Though sometimes reasonably and successfully ordered, visits voluntarily supervised by friends and family in their homes can be fraught with danger for the child and parent, as well as the monitor, especially in cases of domestic violence. Family members may trust the parent whose visits are being supervised and therefore may not take proper or sufficient measures to assure the child(ren) are watched or monitored at all times during the visit.
Consequently, when supervision is indicated, possession/visitation supervised by a neutral third party with the capacity to enforce effective safety measures is normally ordered and enforced by the courts. The expenses of such supervision are often excessive and may in themselves create a detriment to possession by a parent. Such agencies may also provide reports and recommendations to the court based on the success or failure of the supervised visits. Such recommendations assist the courts in making informed decisions regarding supervision and whether continued supervision in the best interest of the child(ren).
If supervised visitation is requested, some type of compelling reason and evidence, based on the circumstances surrounding the child(ren) must normally be established. Such evidence may include denial of access, drug addiction, mental or physical abuse, neglect, or severe mental illness of a parent. The following is a potential list of acts and/or circumstances that may be considered contrary to a child’s best interest.
• Violence or physical endangerment – A noncustodial parent may be denied visitation rights if the parent has abused the child or threatened physical violence.
• Emotional harm – Where sufficient proof is offered of potential emotional harm or that standard visitation has detrimentally affected a child’s welfare, supervised visitation may be ordered.
• Child’s wishes – A court may consider the child’s wishes as to visitation. The weight given to a child’s preference is dependent on the child’s age, emotional stability, maturity and motives.
• Abduction – There must be a showing that there is a strong imminent probability of abduction to limit visitation on this basis.
• Substance abuse – A parent who abuses drugs or alcohol may be ordered to supervised visitation restrictions if the conduct endangers the child or if the parent uses abusive language and/or mistreats the child.
• Mental illness –Mental incapacity may be a reason for supervised visitation only if it is determined by the court that there is a reasonable potential for harm to the child due to such mental illness.
• Sexual behavior – Courts rarely deny visitation solely on the basis of a non-marital heterosexual relationship. Courts will, however, cancel overnight visitation by a child with a parent because of the parent’s cohabitation on a showing of an adverse and material negative impact on the child.
• Incarceration – Visitations due to incarceration may be suspended only on a showing that such visits are detrimental to the child.
To have more of your questions answered on supervised visitation in Texas, or for answers to any other Texas child custody concerns you may have, call Dallas Divorce attorney Mark Nacol of the Nacol Law Firm P.C.
Wednesday, March 3, 2010
Monday, February 15, 2010
Texas and Federal Confidentiality Laws – Use Caution with Your Texas Divorce
There are many legal and proper ways to obtain proof of a spouse’s infidelity. Take care to avoid tactics used to obtain private information that may violate federal and Texas confidentiality laws and a spouse’s right to privacy. You may be tempted by others to obtain proof of a partner’s infidelity by various inappropriate and/or illegal methods. Reading emails, recording telephone calls, installing spyware or geographical tracking devices or even setting up hidden cameras are just a few methods a spouse may be offered when entertaining the thought of catching a cheating spouse. However, such actions may expose both parties and their attorney to civil liability and possible criminal penalties. Under Texas law, it is a crime to install a geographical tracking device on a vehicle owned by another person. When emotions are running high, it is imperative that you seek proper counsel as to the proper legal action to be taken when establishing facts.
Both federal and state wiretapping laws apply to divorcing spouses. A spouse may sue the other spouse or their agents for invasion of privacy. Federal law regulates electronic surveillance of conversations and access to emails, faxes and voicemail. The law imposes civil and criminal sanctions for intentional interceptions of electronic communications. However, accessing email after it has been transmitted, i.e. downloading a text from your telephone or email from the hard drive of a family computer, is not an offense under the Federal Act. Texas has laws that also prohibit the interception of communications. Under such laws, counsel may also be held liable if they disclose information received from the intercepted communications provided by their clients.
Federal and Texas laws both allow recording of telephone calls and other electronic communications with the consent of at least one party to the communication. Under the one-party consent statutes, a spouse may record conversations in which he or she is participating. This has been extended to include parental recording of a child’s conversations with a third party, including the other parent. The parent can consent to the recording on behalf of the child so long as the parent has a good faith objective and a reasonable belief that it is in the best interest of the child, even if the child is unaware of the recording.
It is important that a spouse take great care in their means and methods of gathering information. Information obtained by illegal means can expose one, even if he or she is a spouse, to civil liabilities and possible criminal prosecution. Texas recognizes that every person has a certain right to privacy. Such right is violated if a person intentionally intrudes upon the private affairs of another by offensive means. Accessing stored email or secretly recording a spouse can be a violation of a spouse’s right to privacy. If a suit is filed, the damaged spouse may recover monetary damages, including punitive damages.
For answers to your questions on gathering information for your Texas Divorce, contact Dallas Divorce attorney Mark Nacol with the Nacol Law Firm, P.C.
Both federal and state wiretapping laws apply to divorcing spouses. A spouse may sue the other spouse or their agents for invasion of privacy. Federal law regulates electronic surveillance of conversations and access to emails, faxes and voicemail. The law imposes civil and criminal sanctions for intentional interceptions of electronic communications. However, accessing email after it has been transmitted, i.e. downloading a text from your telephone or email from the hard drive of a family computer, is not an offense under the Federal Act. Texas has laws that also prohibit the interception of communications. Under such laws, counsel may also be held liable if they disclose information received from the intercepted communications provided by their clients.
Federal and Texas laws both allow recording of telephone calls and other electronic communications with the consent of at least one party to the communication. Under the one-party consent statutes, a spouse may record conversations in which he or she is participating. This has been extended to include parental recording of a child’s conversations with a third party, including the other parent. The parent can consent to the recording on behalf of the child so long as the parent has a good faith objective and a reasonable belief that it is in the best interest of the child, even if the child is unaware of the recording.
It is important that a spouse take great care in their means and methods of gathering information. Information obtained by illegal means can expose one, even if he or she is a spouse, to civil liabilities and possible criminal prosecution. Texas recognizes that every person has a certain right to privacy. Such right is violated if a person intentionally intrudes upon the private affairs of another by offensive means. Accessing stored email or secretly recording a spouse can be a violation of a spouse’s right to privacy. If a suit is filed, the damaged spouse may recover monetary damages, including punitive damages.
For answers to your questions on gathering information for your Texas Divorce, contact Dallas Divorce attorney Mark Nacol with the Nacol Law Firm, P.C.
Saturday, January 16, 2010
Tax Year 2009- Divorce and Dependent Exemption Tax Deduction Changes
2009 tax year and forward, the Child Dependent Exemption Tax Deduction rules related to divorce have been amended by the Internal Revenue Service.
The changes to the 2009 tax code are as follows:
1. The custodial parent, for 2009 & forward, is the one with whom the child resides the greater number of nights during the year, regardless of the divorce decree terms.
2. You must obtain IRS Form 8332 (Release of Claim to Exemption for Child of Divorce or Divorced Parents) to claim the exemption if you are the non-custodial parent. The divorce agreement or court order will not be used to substitute for IRS Form 8332.
3. The custodial parent can unilaterally revoke the release of a child exemption for calendar years 2009 & forward, even if the release was made prior to 2009.
The parent claiming a dependency exemption on the child/children is the only parent eligible for the following tax benefits:
* Dependent Exemption Deduction
* Child tax Credit
* Child & Dependent Care Credit
* Education Credit or Education Expense Deductions
* Earned Income Credit
* Head of Household Filing status
With all the new changes, all non-custodial parents who plan to take a dependency exemption should obtain IRS Form 8332 for 2009 & forward tax years. A divorce agreement or court order cannot be substituted!
In any future settlement agreements that include a provision for a non- custodial parent to take a dependency deduction for one or more children in one or more future tax years, have the custodial parent complete IRS Form 8332 when executing the settlement agreement. Sometimes it is very difficult to get ex-spouses to sign off on papers at a later date!
The changes to the 2009 tax code are as follows:
1. The custodial parent, for 2009 & forward, is the one with whom the child resides the greater number of nights during the year, regardless of the divorce decree terms.
2. You must obtain IRS Form 8332 (Release of Claim to Exemption for Child of Divorce or Divorced Parents) to claim the exemption if you are the non-custodial parent. The divorce agreement or court order will not be used to substitute for IRS Form 8332.
3. The custodial parent can unilaterally revoke the release of a child exemption for calendar years 2009 & forward, even if the release was made prior to 2009.
The parent claiming a dependency exemption on the child/children is the only parent eligible for the following tax benefits:
* Dependent Exemption Deduction
* Child tax Credit
* Child & Dependent Care Credit
* Education Credit or Education Expense Deductions
* Earned Income Credit
* Head of Household Filing status
With all the new changes, all non-custodial parents who plan to take a dependency exemption should obtain IRS Form 8332 for 2009 & forward tax years. A divorce agreement or court order cannot be substituted!
In any future settlement agreements that include a provision for a non- custodial parent to take a dependency deduction for one or more children in one or more future tax years, have the custodial parent complete IRS Form 8332 when executing the settlement agreement. Sometimes it is very difficult to get ex-spouses to sign off on papers at a later date!
Wednesday, November 25, 2009
Mental Illness and the Child Custody Case
According to the National Institute of Mental Health, an estimated 26.2 percent of Americans age 18 and older – about one in four adults – suffer from a diagnosable mental disorder in a given year. This figure translates to 57.7 million people. Many people suffer from more than one mental disorder at a given time. Nearly half (45 percent) of those with mental disorder meet criteria for two or more disorders, with severity strongly related to co-morbidity. Mental illnesses are biologically based brain disorders. A diagnosed mental illness in a custody case may not only affect the eventual outcome of the case, but may also determine how counsel prepares his or her particular case strategy.
There are degrees of severity and levels of functioning with all mental disorders, and in the context of a contested custody case an extreme position can be easier for an attorney to handle. The fact finder is evaluating each parent’s ability to meet the child’s needs and the parties’ particular parenting abilities. A psychiatric diagnosis is not in and of itself a measuring tool. The specific acts of each parent must be examined in detail.
One important factor to consider is a request for psychological testing or the appointment of a counselor or psychiatrist to evaluate the parties. If the party with the mental illness has not admitted they have an illness, the results of court-ordered evaluations may force the issue and may also provide additional evidence to support a modification of temporary orders.
Counsel may want to recommend to the court that the child attend therapy. You may suggest the use of the therapist, psychiatrist, or psychologist of the person with the mental disorder for recommendations to the court of the parent’s visitation with the child.
Counsel may also want to consider a temporary injunction in addition to the standard temporary injunction for the preservation of property and protection of the parties and the children. Some issues to consider are preventing the use of alcohol within 24 hours of possession of the children; preventing the mentally ill party from operating a motor vehicle while taking medications, and preventing the parties from making disparaging remarks regarding the other party.
It is important that counsel identify and define the particular drugs the mentally ill patient is taking. Counsel should request a HIPPA Release (specifically related to mental health disclosures) allowing access to medical and prescription drug records of the mentally ill party. Research should then be performed as to the effects of each drug on the mentally ill person.
It may be necessary to have an Amicus Attorney appointed to represent the interests of the children. The Amicus Attorney has a powerful role in the contested custody case and can assist in gaining information on the mentally ill party. All parties should cooperate fully with the Amicus Attorney for the best interest of the children. It is important to make yourself available to the Amicus Attorney and to be pro-active in setting up appointments. It is important that counsel instruct you as to what to say and what not to say to the Amicus Attorney. It is also critical that counsel respond to any discovery propounded by an Amicus Attorney timely.
Be sure to educate yourself about the particular mental disorder you are dealing with. Make sure your experts have experience in handling the particular mental disorder in questions. Counsel should use the testimony of experts to offer aid and/or educate the judge and/or jury so they have a clear understanding of the mental illness and its foreseeable consequences to the spouse and/or family members.
There are degrees of severity and levels of functioning with all mental disorders, and in the context of a contested custody case an extreme position can be easier for an attorney to handle. The fact finder is evaluating each parent’s ability to meet the child’s needs and the parties’ particular parenting abilities. A psychiatric diagnosis is not in and of itself a measuring tool. The specific acts of each parent must be examined in detail.
One important factor to consider is a request for psychological testing or the appointment of a counselor or psychiatrist to evaluate the parties. If the party with the mental illness has not admitted they have an illness, the results of court-ordered evaluations may force the issue and may also provide additional evidence to support a modification of temporary orders.
Counsel may want to recommend to the court that the child attend therapy. You may suggest the use of the therapist, psychiatrist, or psychologist of the person with the mental disorder for recommendations to the court of the parent’s visitation with the child.
Counsel may also want to consider a temporary injunction in addition to the standard temporary injunction for the preservation of property and protection of the parties and the children. Some issues to consider are preventing the use of alcohol within 24 hours of possession of the children; preventing the mentally ill party from operating a motor vehicle while taking medications, and preventing the parties from making disparaging remarks regarding the other party.
It is important that counsel identify and define the particular drugs the mentally ill patient is taking. Counsel should request a HIPPA Release (specifically related to mental health disclosures) allowing access to medical and prescription drug records of the mentally ill party. Research should then be performed as to the effects of each drug on the mentally ill person.
It may be necessary to have an Amicus Attorney appointed to represent the interests of the children. The Amicus Attorney has a powerful role in the contested custody case and can assist in gaining information on the mentally ill party. All parties should cooperate fully with the Amicus Attorney for the best interest of the children. It is important to make yourself available to the Amicus Attorney and to be pro-active in setting up appointments. It is important that counsel instruct you as to what to say and what not to say to the Amicus Attorney. It is also critical that counsel respond to any discovery propounded by an Amicus Attorney timely.
Be sure to educate yourself about the particular mental disorder you are dealing with. Make sure your experts have experience in handling the particular mental disorder in questions. Counsel should use the testimony of experts to offer aid and/or educate the judge and/or jury so they have a clear understanding of the mental illness and its foreseeable consequences to the spouse and/or family members.
Monday, November 2, 2009
Texas Law and Post-Divorce Spousal Maintenance
Under Section 8.051 of the Texas Family Code, a court shall order maintenance for either spouse only if:
1. the spouse for whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence under Title 4 and the offense occurred:
a. within two years before the date on which a suit for dissolution of marriage is filed; or
b. while the suit is pending; or
2. the duration of the marriage was 10 years or longer, the spouse seeking maintenance lacks sufficient property, including property distributed to the spouse under this code, to provide for the spouse’s minimum reasonable needs, as limited by Section 8.054, and the spouse seeking maintenance:
a. is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability;
b. is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home; or
c. clearly lacks earning ability in the labor market adequate to provide support for the spouse’s minimum reasonable needs, as limited by Section 8.054.
Section 8.052 of the Texas Family Code states that a court shall determine the nature, amount, duration, and manner of periodic spousal maintenance payments by considering all relevant factors, including the following:
1. the financial resources of the spouse seeking maintenance, including the community and separate property and liabilities apportioned to that spouse in the dissolution proceeding, and that spouse’s ability to meet the spouse’s needs independently;
2. the educational and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment, the availability of that education or training, and the feasibility of that education or training;
3. the duration of the marriage;
4. the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;
5. the ability of the spouse from whom maintenance is requested to meet that spouse’s personal needs and to provide periodic child support payments, if applicable, while meeting the personal needs of the spouse seeking maintenance;
6. acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;
7. the comparative financial resources of the spouse, including medical, retirement, insurance, or other benefits, and the separate property of each spouse;
8. the contribution by one spouse to the education, training, or increased earning power of the other spouse;
9. the property brought to the marriage by either spouse;
10. the contribution of a spouse as homemaker;
11. marital misconduct of the spouse seeking maintenance; and
12. the efforts of the spouse seeking maintenance to pursue available employment counseling as provided by Chapter 304, Labor Code.
Section 8.053 states that except as provided by Subsection (b), it is presumed that maintenance under Section 8.051(2) is not warranted unless the spouse seeking maintenance has exercised diligence in:
1. seeking suitable employment; or
2. developing the necessary skills to become self-supporting during a period of separation and during the time the suit for dissolution of the marriage is pending.
This section does not apply to a spouse who is not able to satisfy the presumption in Subsection (a) because the spouse:
1. has an incapacitating physical or mental disability;
2. is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home.
Except as provided in subsection (b), a court:
1. may not order maintenance that remains in effect for more than three years after the date of the order; and
2. shall limit the duration of a maintenance order to the shortest reasonable period that allows the spouse seeking maintenance to meet the spouse’s minimum reasonable needs by obtaining appropriate employment or developing an appropriate skill, unless the ability of the spouse to provide for the spouse’s minimum reasonable needs through employment is substantially or totally diminished because of:
a. physical or mental disability;
b. duties as the custodian of an infant or young child; or
c. another compelling impediment to gainful employment.
If a spouse seeking maintenance is unable to support himself or herself through appropriate employment because the spouse has an incapacitating physical or mental disability or because the spouse is the Custodian of a child of the marriage of any age who has a physical or mental disability, the court may order maintenance for as long as the disability continues.
A court may not order maintenance that requires an obligor to pay monthly more than the lesser of:
1. $2,500; or
2. 20 percent of the spouse’s average monthly gross income.
The court shall set the amount that an obligor is required to pay in a maintenance order to provide for the minimum reasonable needs of the oblige, considering employment or property received in the dissolution of the marriage or otherwise owned by the oblige that contributes to the minimum reasonable needs of the oblige.
Department of Veterans Affairs service-connected disability compensation, social security benefits and disability benefits, and workers’ compensation benefits are excluded from maintenance.
1. the spouse for whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence under Title 4 and the offense occurred:
a. within two years before the date on which a suit for dissolution of marriage is filed; or
b. while the suit is pending; or
2. the duration of the marriage was 10 years or longer, the spouse seeking maintenance lacks sufficient property, including property distributed to the spouse under this code, to provide for the spouse’s minimum reasonable needs, as limited by Section 8.054, and the spouse seeking maintenance:
a. is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability;
b. is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home; or
c. clearly lacks earning ability in the labor market adequate to provide support for the spouse’s minimum reasonable needs, as limited by Section 8.054.
Section 8.052 of the Texas Family Code states that a court shall determine the nature, amount, duration, and manner of periodic spousal maintenance payments by considering all relevant factors, including the following:
1. the financial resources of the spouse seeking maintenance, including the community and separate property and liabilities apportioned to that spouse in the dissolution proceeding, and that spouse’s ability to meet the spouse’s needs independently;
2. the educational and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment, the availability of that education or training, and the feasibility of that education or training;
3. the duration of the marriage;
4. the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;
5. the ability of the spouse from whom maintenance is requested to meet that spouse’s personal needs and to provide periodic child support payments, if applicable, while meeting the personal needs of the spouse seeking maintenance;
6. acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;
7. the comparative financial resources of the spouse, including medical, retirement, insurance, or other benefits, and the separate property of each spouse;
8. the contribution by one spouse to the education, training, or increased earning power of the other spouse;
9. the property brought to the marriage by either spouse;
10. the contribution of a spouse as homemaker;
11. marital misconduct of the spouse seeking maintenance; and
12. the efforts of the spouse seeking maintenance to pursue available employment counseling as provided by Chapter 304, Labor Code.
Section 8.053 states that except as provided by Subsection (b), it is presumed that maintenance under Section 8.051(2) is not warranted unless the spouse seeking maintenance has exercised diligence in:
1. seeking suitable employment; or
2. developing the necessary skills to become self-supporting during a period of separation and during the time the suit for dissolution of the marriage is pending.
This section does not apply to a spouse who is not able to satisfy the presumption in Subsection (a) because the spouse:
1. has an incapacitating physical or mental disability;
2. is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home.
Except as provided in subsection (b), a court:
1. may not order maintenance that remains in effect for more than three years after the date of the order; and
2. shall limit the duration of a maintenance order to the shortest reasonable period that allows the spouse seeking maintenance to meet the spouse’s minimum reasonable needs by obtaining appropriate employment or developing an appropriate skill, unless the ability of the spouse to provide for the spouse’s minimum reasonable needs through employment is substantially or totally diminished because of:
a. physical or mental disability;
b. duties as the custodian of an infant or young child; or
c. another compelling impediment to gainful employment.
If a spouse seeking maintenance is unable to support himself or herself through appropriate employment because the spouse has an incapacitating physical or mental disability or because the spouse is the Custodian of a child of the marriage of any age who has a physical or mental disability, the court may order maintenance for as long as the disability continues.
A court may not order maintenance that requires an obligor to pay monthly more than the lesser of:
1. $2,500; or
2. 20 percent of the spouse’s average monthly gross income.
The court shall set the amount that an obligor is required to pay in a maintenance order to provide for the minimum reasonable needs of the oblige, considering employment or property received in the dissolution of the marriage or otherwise owned by the oblige that contributes to the minimum reasonable needs of the oblige.
Department of Veterans Affairs service-connected disability compensation, social security benefits and disability benefits, and workers’ compensation benefits are excluded from maintenance.
Wednesday, October 14, 2009
The Standard Child Possession Order
When parents are battling over divorce issues and child custody, they often times do not understand that the Texas Family Code has expanded the child possession order to make parents joint managing conservators with equal rights and duties and possession of the child. It is important to keep in mind that, under certain circumstances, and depending on the age of a child, a Judge may alter the standard possession order in any way that serves the best interest of the child.
The following is an example of a standard possession order for a parent who lives within 100 miles of their child under the Texas Family Code.
IT IS ORDERED that the conservators shall have possession of the child at times mutually agreed to in advance by the parties, and, in the absence of mutual agreement, it is ORDERED that the conservators shall have possession of the child under the specified terms set out in this Standard Possession Order.
(c) Parents Who Reside 100 Miles or Less Apart
Except as otherwise explicitly provided in this Standard Possession Order, when Possessory Conservator resides 100 miles or less from the primary residence of the child, Possessory Conservator shall have the right to possession of the child as follows:
1. Weekends—
On weekends that occur during the regular school term, beginning at the time the child’s school is regularly dismissed on the first, third, and fifth Friday of each month and ending at the time the child’s school resumes after the weekend.
On weekends that do not occur during the regular school term, beginning at 6:00 p.m. on the first, third, and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday.
2. Weekend Possession Extended by a Holiday—Except as otherwise explicitly provided in this Standard Possession Order, if a weekend period of possession by Conservator begins on a Friday that is a school holiday during the regular school term or a federal, state, or local holiday during the summer months when school is not in session, or if the period ends on or is immediately followed by a Monday that is such a holiday, that weekend period of possession shall begin at the time the child’s school is regularly dismissed on the Thursday immediately preceding the Friday holiday or school holiday or end on that Monday holiday or school holiday at the time school resumes after that school holiday, as applicable.
3. Thursdays—On Thursday of each week during the regular school term, beginning at the time the child’s school is regularly dismissed and ending at the time the child’s school resumes on Friday.
4. Spring Break in Even-Numbered Years—In even-numbered years, beginning at the time the child’s school is regularly dismissed on the day the child is dismissed from school for the school’s spring vacation and ending at the time school resumes after that vacation.
5. Extended Summer Possession by Possessory Conservator—
With Written Notice by April 1—If Possessory Conservator gives Managing Conservator written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, Possessory Conservator shall have possession of the child for thirty days beginning no earlier than the day after the child’s school is dismissed for the summer vacation and ending no later than seven days before school resumes at the end of the summer vacation in that year, to be exercised in no more than two separate periods of at least seven consecutive days each, as specified in the written notice, provided that the period or periods of extended summer possession do not interfere with Father’s Day Weekend. These periods of possession shall begin and end at 6:00 p.m.
Without Written Notice by April 1—If Possessory Conservator does not give Managing Conservator written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, Possessory Conservator shall have possession of the child for thirty consecutive days in that year beginning at 6:00 p.m. on July 1 and ending at 6:00 p.m. on July 31.
Notwithstanding the Thursday periods of possession during the regular school term and the weekend periods of possession ORDERED for Possessory Conservator, it is explicitly ORDERED that Managing Conservator shall have a superior right of possession of the child as follows:
1. Spring Break in Odd–Numbered Years—In odd-numbered years, beginning at 6:00 p.m. on the day the child is dismissed from school for the school’s spring vacation and ending at 6:00 p.m. on the day before school resumes after that vacation.
2. Summer Weekend Possession by Managing Conservator—If Managing Conservator gives Possessory Conservator written notice by April 15 of a year, Managing Conservator shall have possession of the child on any one weekend beginning at 6:00 p.m. on Friday and ending at 6:00 p.m. on the following Sunday during any one period of the extended summer possession by Possessory Conservator in that year, provided that Managing Conservator picks up the child from Possessory Conservator and returns the child to that same place and that the weekend so designated does not interfere with Father’s Day Weekend.
3. Extended Summer Possession by Managing Conservator—If Managing Conservator gives Possessory Conservator written notice by April 15 of a year or gives Possessory Conservator fourteen days’ written notice on or after April 16 of a year, Managing Conservator may designate one weekend beginning no earlier than the day after the child’s school is dismissed for the summer vacation and ending no later than seven days before school resumes at the end of the summer vacation, during which an otherwise scheduled weekend period of possession by Possessory Conservator shall not take place in that year, provided that the weekend so designated does not interfere with Possessory Conservator’s period or periods of extended summer possession or with Father’s Day Weekend.
(e) Holidays Unaffected by Distance
Notwithstanding the weekend and Thursday periods of possession of Possessory Conservator, Managing Conservator and Possessory Conservator shall have the right to possession of the child as follows:
1. Christmas Holidays in Even-Numbered Years—In even-numbered years, Possessory Conservator shall have the right to possession of the child beginning at the time the child’s school is regularly dismissed on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and Managing Conservator shall have the right to possession of the child beginning at noon on December 28 and ending at 6:00 p.m. on the day before school resumes after that Christmas school vacation.
2. Christmas Holidays in Odd-Numbered Years—In odd-numbered years, Managing Conservator shall have the right to possession of the child beginning at 6:00 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and Possessory Conservator shall have the right to possession of the child beginning at noon on December 28 and ending at the time the child’s school resumes after that Christmas school vacation.
3. Thanksgiving in Odd-Numbered Years—In odd-numbered years, Possessory Conservator shall have the right to possession of the child beginning at the time the child’s school is regularly dismissed on the day the child is dismissed from school for the Thanksgiving holiday and ending at the time the child’s school resumes after that Thanksgiving holiday.
4. Thanksgiving in Even-Numbered Years—In even-numbered years, Managing Conservator shall have the right to possession of the child beginning at 6:00 p.m. on the day the child is dismissed from school for the Thanksgiving holiday and ending at 6:00 p.m. on the Sunday following Thanksgiving.
5. Child’s Birthday—If a conservator is not otherwise entitled under this Standard Possession Order to present possession of the child on the child’s birthday, that conservator shall have possession of the child and the child’s minor siblings beginning at 6:00 p.m. and ending at 8:00 p.m. on that day, provided that that conservator picks up the child from the other conservator’s residence and returns the child to that same place.
6. Father’s Day Weekend—Father shall have the right to possession of the child each year, beginning at 6:00 p.m. on the Friday preceding Father’s Day and ending at 6:00 p.m. on Father’s Day, provided that if Father is not otherwise entitled under this Standard Possession Order to present possession of the child, he shall pick up the child from the other conservator’s residence and return the child to that same place.
7. Mother’s Day Weekend—Mother shall have the right to possession of the child each year, beginning at 6:00 p.m. on the Friday preceding Mother’s Day and ending at 6:00 p.m. on Mother’s Day, provided that if Mother is not otherwise entitled under this Standard Possession Order to present possession of the child, she shall pick up the child from the other conservator’s residence and return the child to that same place.
(g) General Terms and Conditions
Except as otherwise explicitly provided in this Standard Possession Order, the terms and conditions of possession of the child that apply regardless of the distance between the residence of a parent and the child are as follows:
1. Surrender of Child by Managing Conservator—Managing Conservator is ORDERED to surrender the child to Possessory Conservator at the beginning of each period of Possessory Conservator’s possession at the residence of Managing Conservator.
If a period of possession by Possessory Conservator begins at the time the child’s school is regularly dismissed, Managing Conservator is ORDERED to surrender the child to Possessory Conservator at the beginning of each such period of possession at the school in which the child is enrolled. If the child is not in school, Possessory Conservator shall pick up the child at the residence of Managing Conservator at 6:00 p.m., and Managing Conservator is ORDERED to surrender the child to Possessory Conservator at the residence of Managing Conservator at 6:00 p.m. under these circumstances.
2. Surrender of Child by Possessory Conservator—Possessory Conservator is ORDERED to surrender the child to Managing Conservator at the residence of Managing Conservator at the end of each period of possession.
3. Return of Child by Possessory Conservator—Possessory Conservator is ORDERED to return the child to the residence of Managing Conservator at the end of each period of possession. However, it is ORDERED that, if Managing Conservator and Possessory Conservator live in the same county at the time of rendition of this order, Possessory Conservator’s county of residence remains the same after rendition of this order, and Managing Conservator’s county of residence changes, effective on the date of the change of residence by Managing Conservator, Possessory Conservator shall surrender the child to Managing Conservator at the residence of Possessory Conservator at the end of each period of possession.
If a period of possession by Possessory Conservator ends at the time the child’s school resumes, Possessory Conservator is ORDERED to surrender the child to Managing Conservator at the end of each such period of possession at the school in which the child is enrolled or, if the child is not in school, at the residence of Managing Conservator at [address].
4. Surrender of Child by Possessory Conservator—Possessory Conservator is ORDERED to surrender the child to Managing Conservator, if the child is in Possessory Conservator’s possession or subject to Possessory Conservator’s control, at the beginning of each period of Managing Conservator’s exclusive periods of possession, at the place designated in this Standard Possession Order.
5. Return of Child by Managing Conservator—Managing Conservator is ORDERED to return the child to Possessory Conservator, if Possessory Conservator is entitled to possession of the child, at the end of each of Managing Conservator’s exclusive periods of possession, at the place designated in this Standard Possession Order.
6. Personal Effects—Each conservator is ORDERED to return with the child the personal effects that the child brought at the beginning of the period of possession.
7. Designation of Competent Adult—Each conservator may designate any competent adult to pick up and return the child, as applicable. IT IS ORDERED that a conservator or a designated competent adult be present when the child is picked up or returned.
8. Inability to Exercise Possession—Each conservator is ORDERED to give notice to the person in possession of the child on each occasion that the conservator will be unable to exercise that conservator’s right of possession for any specified period.
9. Written Notice—Written notice shall be deemed to have been timely made if received or postmarked before or at the time that notice is due.
10. Notice to School and Managing Conservator—If Possessory Conservator’s time of possession of the child ends at the time school resumes and for any reason the child is not or will not be returned to school, Possessory Conservator shall immediately notify the school and Managing Conservator that the child will not be or has not been returned to school.
This concludes the Standard Possession Order.
Again, a Judge may under varied circumstances change any provision of a Standard Possession Order.
The following is an example of a standard possession order for a parent who lives within 100 miles of their child under the Texas Family Code.
IT IS ORDERED that the conservators shall have possession of the child at times mutually agreed to in advance by the parties, and, in the absence of mutual agreement, it is ORDERED that the conservators shall have possession of the child under the specified terms set out in this Standard Possession Order.
(c) Parents Who Reside 100 Miles or Less Apart
Except as otherwise explicitly provided in this Standard Possession Order, when Possessory Conservator resides 100 miles or less from the primary residence of the child, Possessory Conservator shall have the right to possession of the child as follows:
1. Weekends—
On weekends that occur during the regular school term, beginning at the time the child’s school is regularly dismissed on the first, third, and fifth Friday of each month and ending at the time the child’s school resumes after the weekend.
On weekends that do not occur during the regular school term, beginning at 6:00 p.m. on the first, third, and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday.
2. Weekend Possession Extended by a Holiday—Except as otherwise explicitly provided in this Standard Possession Order, if a weekend period of possession by Conservator begins on a Friday that is a school holiday during the regular school term or a federal, state, or local holiday during the summer months when school is not in session, or if the period ends on or is immediately followed by a Monday that is such a holiday, that weekend period of possession shall begin at the time the child’s school is regularly dismissed on the Thursday immediately preceding the Friday holiday or school holiday or end on that Monday holiday or school holiday at the time school resumes after that school holiday, as applicable.
3. Thursdays—On Thursday of each week during the regular school term, beginning at the time the child’s school is regularly dismissed and ending at the time the child’s school resumes on Friday.
4. Spring Break in Even-Numbered Years—In even-numbered years, beginning at the time the child’s school is regularly dismissed on the day the child is dismissed from school for the school’s spring vacation and ending at the time school resumes after that vacation.
5. Extended Summer Possession by Possessory Conservator—
With Written Notice by April 1—If Possessory Conservator gives Managing Conservator written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, Possessory Conservator shall have possession of the child for thirty days beginning no earlier than the day after the child’s school is dismissed for the summer vacation and ending no later than seven days before school resumes at the end of the summer vacation in that year, to be exercised in no more than two separate periods of at least seven consecutive days each, as specified in the written notice, provided that the period or periods of extended summer possession do not interfere with Father’s Day Weekend. These periods of possession shall begin and end at 6:00 p.m.
Without Written Notice by April 1—If Possessory Conservator does not give Managing Conservator written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, Possessory Conservator shall have possession of the child for thirty consecutive days in that year beginning at 6:00 p.m. on July 1 and ending at 6:00 p.m. on July 31.
Notwithstanding the Thursday periods of possession during the regular school term and the weekend periods of possession ORDERED for Possessory Conservator, it is explicitly ORDERED that Managing Conservator shall have a superior right of possession of the child as follows:
1. Spring Break in Odd–Numbered Years—In odd-numbered years, beginning at 6:00 p.m. on the day the child is dismissed from school for the school’s spring vacation and ending at 6:00 p.m. on the day before school resumes after that vacation.
2. Summer Weekend Possession by Managing Conservator—If Managing Conservator gives Possessory Conservator written notice by April 15 of a year, Managing Conservator shall have possession of the child on any one weekend beginning at 6:00 p.m. on Friday and ending at 6:00 p.m. on the following Sunday during any one period of the extended summer possession by Possessory Conservator in that year, provided that Managing Conservator picks up the child from Possessory Conservator and returns the child to that same place and that the weekend so designated does not interfere with Father’s Day Weekend.
3. Extended Summer Possession by Managing Conservator—If Managing Conservator gives Possessory Conservator written notice by April 15 of a year or gives Possessory Conservator fourteen days’ written notice on or after April 16 of a year, Managing Conservator may designate one weekend beginning no earlier than the day after the child’s school is dismissed for the summer vacation and ending no later than seven days before school resumes at the end of the summer vacation, during which an otherwise scheduled weekend period of possession by Possessory Conservator shall not take place in that year, provided that the weekend so designated does not interfere with Possessory Conservator’s period or periods of extended summer possession or with Father’s Day Weekend.
(e) Holidays Unaffected by Distance
Notwithstanding the weekend and Thursday periods of possession of Possessory Conservator, Managing Conservator and Possessory Conservator shall have the right to possession of the child as follows:
1. Christmas Holidays in Even-Numbered Years—In even-numbered years, Possessory Conservator shall have the right to possession of the child beginning at the time the child’s school is regularly dismissed on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and Managing Conservator shall have the right to possession of the child beginning at noon on December 28 and ending at 6:00 p.m. on the day before school resumes after that Christmas school vacation.
2. Christmas Holidays in Odd-Numbered Years—In odd-numbered years, Managing Conservator shall have the right to possession of the child beginning at 6:00 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and Possessory Conservator shall have the right to possession of the child beginning at noon on December 28 and ending at the time the child’s school resumes after that Christmas school vacation.
3. Thanksgiving in Odd-Numbered Years—In odd-numbered years, Possessory Conservator shall have the right to possession of the child beginning at the time the child’s school is regularly dismissed on the day the child is dismissed from school for the Thanksgiving holiday and ending at the time the child’s school resumes after that Thanksgiving holiday.
4. Thanksgiving in Even-Numbered Years—In even-numbered years, Managing Conservator shall have the right to possession of the child beginning at 6:00 p.m. on the day the child is dismissed from school for the Thanksgiving holiday and ending at 6:00 p.m. on the Sunday following Thanksgiving.
5. Child’s Birthday—If a conservator is not otherwise entitled under this Standard Possession Order to present possession of the child on the child’s birthday, that conservator shall have possession of the child and the child’s minor siblings beginning at 6:00 p.m. and ending at 8:00 p.m. on that day, provided that that conservator picks up the child from the other conservator’s residence and returns the child to that same place.
6. Father’s Day Weekend—Father shall have the right to possession of the child each year, beginning at 6:00 p.m. on the Friday preceding Father’s Day and ending at 6:00 p.m. on Father’s Day, provided that if Father is not otherwise entitled under this Standard Possession Order to present possession of the child, he shall pick up the child from the other conservator’s residence and return the child to that same place.
7. Mother’s Day Weekend—Mother shall have the right to possession of the child each year, beginning at 6:00 p.m. on the Friday preceding Mother’s Day and ending at 6:00 p.m. on Mother’s Day, provided that if Mother is not otherwise entitled under this Standard Possession Order to present possession of the child, she shall pick up the child from the other conservator’s residence and return the child to that same place.
(g) General Terms and Conditions
Except as otherwise explicitly provided in this Standard Possession Order, the terms and conditions of possession of the child that apply regardless of the distance between the residence of a parent and the child are as follows:
1. Surrender of Child by Managing Conservator—Managing Conservator is ORDERED to surrender the child to Possessory Conservator at the beginning of each period of Possessory Conservator’s possession at the residence of Managing Conservator.
If a period of possession by Possessory Conservator begins at the time the child’s school is regularly dismissed, Managing Conservator is ORDERED to surrender the child to Possessory Conservator at the beginning of each such period of possession at the school in which the child is enrolled. If the child is not in school, Possessory Conservator shall pick up the child at the residence of Managing Conservator at 6:00 p.m., and Managing Conservator is ORDERED to surrender the child to Possessory Conservator at the residence of Managing Conservator at 6:00 p.m. under these circumstances.
2. Surrender of Child by Possessory Conservator—Possessory Conservator is ORDERED to surrender the child to Managing Conservator at the residence of Managing Conservator at the end of each period of possession.
3. Return of Child by Possessory Conservator—Possessory Conservator is ORDERED to return the child to the residence of Managing Conservator at the end of each period of possession. However, it is ORDERED that, if Managing Conservator and Possessory Conservator live in the same county at the time of rendition of this order, Possessory Conservator’s county of residence remains the same after rendition of this order, and Managing Conservator’s county of residence changes, effective on the date of the change of residence by Managing Conservator, Possessory Conservator shall surrender the child to Managing Conservator at the residence of Possessory Conservator at the end of each period of possession.
If a period of possession by Possessory Conservator ends at the time the child’s school resumes, Possessory Conservator is ORDERED to surrender the child to Managing Conservator at the end of each such period of possession at the school in which the child is enrolled or, if the child is not in school, at the residence of Managing Conservator at [address].
4. Surrender of Child by Possessory Conservator—Possessory Conservator is ORDERED to surrender the child to Managing Conservator, if the child is in Possessory Conservator’s possession or subject to Possessory Conservator’s control, at the beginning of each period of Managing Conservator’s exclusive periods of possession, at the place designated in this Standard Possession Order.
5. Return of Child by Managing Conservator—Managing Conservator is ORDERED to return the child to Possessory Conservator, if Possessory Conservator is entitled to possession of the child, at the end of each of Managing Conservator’s exclusive periods of possession, at the place designated in this Standard Possession Order.
6. Personal Effects—Each conservator is ORDERED to return with the child the personal effects that the child brought at the beginning of the period of possession.
7. Designation of Competent Adult—Each conservator may designate any competent adult to pick up and return the child, as applicable. IT IS ORDERED that a conservator or a designated competent adult be present when the child is picked up or returned.
8. Inability to Exercise Possession—Each conservator is ORDERED to give notice to the person in possession of the child on each occasion that the conservator will be unable to exercise that conservator’s right of possession for any specified period.
9. Written Notice—Written notice shall be deemed to have been timely made if received or postmarked before or at the time that notice is due.
10. Notice to School and Managing Conservator—If Possessory Conservator’s time of possession of the child ends at the time school resumes and for any reason the child is not or will not be returned to school, Possessory Conservator shall immediately notify the school and Managing Conservator that the child will not be or has not been returned to school.
This concludes the Standard Possession Order.
Again, a Judge may under varied circumstances change any provision of a Standard Possession Order.
Wednesday, September 16, 2009
Fathers Have Rights – Establishing Paternity
Paternity is defined as the quality or state of being a father. Many issues arise in the face of a father being denied access to his child or wondering if he is truly the child’s father. Where paternity of a child is in question, a mother or alleged father may ask the court to determine paternity of one or several possible fathers.
Most paternity actions involve a child born out of wedlock. However, paternity actions also occur between married persons where someone other than the husband is the father of the child, or where the husband has fathered a child outside of the marriage. There is a presumption that a child born to a married woman is the child of the husband. However, this presumption can be overcome by DNA or other valid evidence.
If you are questioning paternity, think about when the child could have been conceived. Consider when you had relevant or timely intercourse. Understand that paternity is determined by testing DNA from the father and the mother through the use of genetic fingerprinting. DNA testing is done by drawing blood or by taking a buccal swab, when cells are wiped from the inside of the mouth with a cotton swab. These tests can determine the father of a child with up to 99% accuracy. DNA testing is currently the most advanced and accurate technology to determine parentage. Generally paternity testing is paid for by the father.
If you file a paternity suit, you can request the court order DNA testing. A court may order the mother, father and the child to submit to testing. Paternity testing can be done during pregnancy or when the child is as young as one day old.
Paternity proceedings can be filed by the alleged father, mother, child or child support division of a state. A private action for paternity is usually prosecuted to secure child support payments from the father, parenting time with the child, and/or fair rights and privilege allocation.
Some men are confident that they are the biological father and wish to maintain a legal relationship with the child whether or not they are the father and thus either initiate paternity actions or consent to the entry of a paternity order. The paternity order entitles the father to visitation time with the child and creates a legal duty for the father to provide for the support of the child in addition to awarding him rights and privileges regarding the child’s future development.
When you consent to the entry of a paternity order, absent fraud, you consent for life. Most jurisdictions will not allow you to escape the consequences of that order, including the requirement of payment for the support of the child. If there is a chance that you will resent the child, or wish to break off the relationship with the child or, if you ultimately learn that you are not the child’s biological father, make certain you obtain a DNA test before legally admitting and therefore confirming that you are a child’s father.
Custody of a child can either be awarded to the father or the mother in a paternity action depending on the facts. Child support in a paternity action is generally set according to state law standards unless the parties sign an agreement providing for the payment of child support that is approved by the court.
Reasons to establish paternity: to provide the child with a needed identity; to confirm rights, privileges and duties of a parent; to know the health history of both the mother and father for medical care and treatment of a child; establish financial support for the child; establish health insurance coverage, social security eligibility, inheritance and other benefits; and seek public assistance where qualified.
Most paternity actions involve a child born out of wedlock. However, paternity actions also occur between married persons where someone other than the husband is the father of the child, or where the husband has fathered a child outside of the marriage. There is a presumption that a child born to a married woman is the child of the husband. However, this presumption can be overcome by DNA or other valid evidence.
If you are questioning paternity, think about when the child could have been conceived. Consider when you had relevant or timely intercourse. Understand that paternity is determined by testing DNA from the father and the mother through the use of genetic fingerprinting. DNA testing is done by drawing blood or by taking a buccal swab, when cells are wiped from the inside of the mouth with a cotton swab. These tests can determine the father of a child with up to 99% accuracy. DNA testing is currently the most advanced and accurate technology to determine parentage. Generally paternity testing is paid for by the father.
If you file a paternity suit, you can request the court order DNA testing. A court may order the mother, father and the child to submit to testing. Paternity testing can be done during pregnancy or when the child is as young as one day old.
Paternity proceedings can be filed by the alleged father, mother, child or child support division of a state. A private action for paternity is usually prosecuted to secure child support payments from the father, parenting time with the child, and/or fair rights and privilege allocation.
Some men are confident that they are the biological father and wish to maintain a legal relationship with the child whether or not they are the father and thus either initiate paternity actions or consent to the entry of a paternity order. The paternity order entitles the father to visitation time with the child and creates a legal duty for the father to provide for the support of the child in addition to awarding him rights and privileges regarding the child’s future development.
When you consent to the entry of a paternity order, absent fraud, you consent for life. Most jurisdictions will not allow you to escape the consequences of that order, including the requirement of payment for the support of the child. If there is a chance that you will resent the child, or wish to break off the relationship with the child or, if you ultimately learn that you are not the child’s biological father, make certain you obtain a DNA test before legally admitting and therefore confirming that you are a child’s father.
Custody of a child can either be awarded to the father or the mother in a paternity action depending on the facts. Child support in a paternity action is generally set according to state law standards unless the parties sign an agreement providing for the payment of child support that is approved by the court.
Reasons to establish paternity: to provide the child with a needed identity; to confirm rights, privileges and duties of a parent; to know the health history of both the mother and father for medical care and treatment of a child; establish financial support for the child; establish health insurance coverage, social security eligibility, inheritance and other benefits; and seek public assistance where qualified.
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