Beginning September 1, 2009, under new Texas legislation the courts have a right to temporarily amend certain existing orders concerning a parent who is ordered to military deployment, military mobilization or temporary military duty.
If a conservator is ordered to military deployment, military mobilization, or temporary military duty that involves moving a substantial distance from the conservator’s residence so as to materially affect the conservator’s ability to exercise the conservator’s rights and duties in relation to his or her child, either conservator may file for an order under subchapter (a) of Section 153.702 of the Texas Family Code.
The Court may then render a temporary order in a proceeding under this subchapter regarding:
1. possession of or access to the child; or
2. child support.
A temporary order of the court under this subchapter may grant rights to and impose duties on a designated person (with certain limitations) regarding the child, except the court may not require the designated person to pay child support.
After a conservator’s military deployment, military mobilization, or temporary military duty is concluded, and the conservator returns to the conservator’s usual residence, the temporary orders under this section terminate and the rights of all affected parties are governed by the terms of any court order that was applicable before the conservator was not ordered to military deployment, military mobilization, or temporary military duty.
Further, if the conservator with the exclusive right to designate the primary residence of the child is ordered to military deployment, military mobilization, or temporary military duty, the court may order appointment of a designated person to exercise the exclusive right to designate the primary residence of the child during the military deployment, military mobilization, or temporary military duty in the following order of preference:
1. the conservator who does not have the exclusive right to designate the primary residence of the child;
2. if appointing the conservator described by Subdivision (1) is not in the child’s best interest, a designated person chosen by the conservator with the exclusive right to designate the primary residence of the child; or
3. if appointing the conservator described by Subdivision (1) or the person chosen under Subdivision (2) is not in the child’s best interest, another person chosen by the court.
A designated person named in a temporary order rendered under this section has the rights and duties of a nonparent appointed as sole managing conservator under Section 153.371 of the Texas Family Code.
The court may limit or expand the rights of a nonparent named as a designated person in a temporary order rendered under this section as appropriate for the best interest of the child.
If the court appoints the conservator without the exclusive right to designate the primary residence of the child, the court may award visitation with the child to a designated person chosen by the conservator with the exclusive right to designate the primary residence of the child.
1. The periods of visitation shall be the same as the visitation to which the conservator without the exclusive right to designate the primary residence of the child was entitled under the court order in effect immediately before the date the temporary order.
2. The temporary order for visitation must provide that.:
a. the designated person under this section has the right to possession of the child for the periods and in the manner in which the conservator without the exclusive right to designate the primary residence of the child is entitled under the court order in effect immediately before the date of temporary order.
b. the child’s other conservator and the designated person under this section are subject to the requirements of Section 153.316(a) with the designated person considered for purposes of that section to be the possessory conservator;
c. the designated person under this section has the rights and duties of a nonparent possessory conservator under Section 153.376(a) during the period that the person has possession of the child; and
d. the designated person under this section is subject to any provision in a court order restricting or prohibiting access to the child by any specified individual.
3. The court may limit or expand the rights of a nonparent designated person named in a temporary order under this section as appropriate for the best interest of the child.
If the parent without exclusive right to designate the primary residence of the child is ordered to military deployment, military mobilization, or temporary military duty, the court may award visitation with the child to a designated person chosen by such conservator if the visitation is in the best interest of the child.
The temporary order for visitation must provide that:
1. the designated person under this section has the right to possession of the child for the periods and in the manner in which the conservator described by Subsection (a) would be entitled if not ordered to military deployment, military mobilization, or temporary military duty;
2. the child’s other conservator and the designated person under this section are subject to the requirements of Section 153.316, with the designated person considered for purposes of that section to be the possessory conservator;
3. the designated person under this section has the rights and duties of a nonparent possessory conservator under Section 153.376(a) during the period that the designated person has possession of the child; and
4. the designated person under this section is subject to any provision in a court order restricting or prohibiting access to the child by any specified individual.
The court may limit or expand the rights of a nonparent designated person named in a temporary order under this section as appropriate and as is in the best interest of the child.
Friday, August 21, 2009
Child Custody: Staying Close to Your Kids
When a custody lawsuit commences, parents need to be thinking primarily about what is in the best interest of the child(ren). The needs and rights of the child(ren) are of paramount importance in a child custody case and the court’s primary focus.
In accordance with Section 153.002 of the Texas Family Code, parents are ordinarily considered to be equal in their right to parent their child(ren). It is the best interests of the child(ren) that are paramount, and the aim of the Texas Family Code is to:
1. Assure that child(ren) will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child(ren);
2. Provide a safe, stable, and non-violent environment for the child(ren); and
3. Encourage parents to share in the rights and duties of raising their child(ren) after the parents have separated or dissolved their marriage.
If you are a parent who is preparing for a custody battle, you would do well to make this your primary goal throughout the litigation.
Vengeful parents often engage in destructive conduct by trying to move out of state in an attempt to separate the child(ren) geographically from the non-custodial parent. If vengeance is the custodial parent’s primary motive, this has many benefits: it becomes more difficult for the non-custodial parent to exercise visitation, and at the same time makes it more difficult (and expensive) for the non-custodial parent to seek relief through the courts for denied visitation or other wrongful acts by the custodial parent. A move-away, depending upon distance, can also isolate the child(ren) from the non-custodial parent. If you suspect your spouse may do this, you need to be prepared and act proactively. A key item to have incorporated into final paperwork is an “anti-move-away” clause. Essentially, this states that if the custodial parent moves more than a certain number of miles away, custody changes to the remaining parent and/or restricting the permanent domicile of the child(ren) to designated counties.
Stay meaningfully involved in your child(ren)’s lives on a regular and continuing basis. Being heavily involved with your child(ren) for very short periods of time will not bring favor in the eyes of the court.
Keep a detailed record or diary of the details of how much you have been involved with your child(ren)’s school and extracurricular activities. Attend school meetings. Take pictures. Schedule family vacations. Visit relatives and friends and schedule sleepovers with your child(ren)’s peers. Take your child(ren) to the dentist and the doctor. Don’t spoil your child(ren), reasonably discipline your child(ren) when necessary and document why you took such action. Take advantage of extra time extended you by your spouse and try to extend visitation when possible if only for a couple of hours. Initiate and support birthdays, school activities, and college requirements. Document all relevant case issues and facts.
Keep in mind that your child(ren) are not equipped to deal with the range of emotions experienced by an adult, and that ventilating your personal difficulties on them is not only unhelpful, but can be a form of abuse and can create lasting emotional scars and is viewed with disfavor in the courthouse.
Parents preparing for custody cases before the court in Texas must be mindful of the extraordinary damage they can do when denigrating the other spouse in front of their child(ren). Such behavior is not only damaging to the child(ren), but may and usually will, be taken into consideration by the court. A noticeable failure to maintain self-control may be considered an indicator of an inability to parent.
If you can remain involved in your child(ren)’s lives enough to find out how his or her relationship is with your former spouse, you may be able to build a better case to show the court you are the better custodial parent, and in the meantime productively provide for your child(ren) in his or her best interest.
In accordance with Section 153.002 of the Texas Family Code, parents are ordinarily considered to be equal in their right to parent their child(ren). It is the best interests of the child(ren) that are paramount, and the aim of the Texas Family Code is to:
1. Assure that child(ren) will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child(ren);
2. Provide a safe, stable, and non-violent environment for the child(ren); and
3. Encourage parents to share in the rights and duties of raising their child(ren) after the parents have separated or dissolved their marriage.
If you are a parent who is preparing for a custody battle, you would do well to make this your primary goal throughout the litigation.
Vengeful parents often engage in destructive conduct by trying to move out of state in an attempt to separate the child(ren) geographically from the non-custodial parent. If vengeance is the custodial parent’s primary motive, this has many benefits: it becomes more difficult for the non-custodial parent to exercise visitation, and at the same time makes it more difficult (and expensive) for the non-custodial parent to seek relief through the courts for denied visitation or other wrongful acts by the custodial parent. A move-away, depending upon distance, can also isolate the child(ren) from the non-custodial parent. If you suspect your spouse may do this, you need to be prepared and act proactively. A key item to have incorporated into final paperwork is an “anti-move-away” clause. Essentially, this states that if the custodial parent moves more than a certain number of miles away, custody changes to the remaining parent and/or restricting the permanent domicile of the child(ren) to designated counties.
Stay meaningfully involved in your child(ren)’s lives on a regular and continuing basis. Being heavily involved with your child(ren) for very short periods of time will not bring favor in the eyes of the court.
Keep a detailed record or diary of the details of how much you have been involved with your child(ren)’s school and extracurricular activities. Attend school meetings. Take pictures. Schedule family vacations. Visit relatives and friends and schedule sleepovers with your child(ren)’s peers. Take your child(ren) to the dentist and the doctor. Don’t spoil your child(ren), reasonably discipline your child(ren) when necessary and document why you took such action. Take advantage of extra time extended you by your spouse and try to extend visitation when possible if only for a couple of hours. Initiate and support birthdays, school activities, and college requirements. Document all relevant case issues and facts.
Keep in mind that your child(ren) are not equipped to deal with the range of emotions experienced by an adult, and that ventilating your personal difficulties on them is not only unhelpful, but can be a form of abuse and can create lasting emotional scars and is viewed with disfavor in the courthouse.
Parents preparing for custody cases before the court in Texas must be mindful of the extraordinary damage they can do when denigrating the other spouse in front of their child(ren). Such behavior is not only damaging to the child(ren), but may and usually will, be taken into consideration by the court. A noticeable failure to maintain self-control may be considered an indicator of an inability to parent.
If you can remain involved in your child(ren)’s lives enough to find out how his or her relationship is with your former spouse, you may be able to build a better case to show the court you are the better custodial parent, and in the meantime productively provide for your child(ren) in his or her best interest.
Tuesday, August 4, 2009
Women at Risk: The Hazards of a Bad Relationship
Abusive men, and women (physical or mental), are all about control and frequently evolve from abusive homes themselves. Police desire to help abused women, but often even after a complaint has been filed, women will not pursue the charges out of fear. Feeling helpless, they are often terrified, brain-washed and really believe that they have nowhere to go. It is not uncommon for an abuser to be very charismatic and after beating his victim return home the following day with flowers showing great affection to his victim. Unfortunately, the victim tends to believe the transparent words “I’ll never do it again!”
One of the most frustrating things for family and friends outside a battering relationship is trying to understand why the abused person doesn’t just leave. It is important to remember that extreme emotional abuse is always present in domestic violence situations. Violence takes place in many forms, is unpredictable and can happen all of the time or just once in a while. Violence is criminal including physical and sexual assault. It is paramount to remember that physical violence, even among family members, is wrong and against the law.
Some of the reasons partners stay in domestic violence situations are:
1. Economic dependence.
2. Fear of greater physical danger or danger for children.
3. Fear of being hunted down and suffering worse beatings.
4. Survival. Fear that the abuser will kill.
5. Fear of emotional damage to children.
6. Fear of losing custody of children.
7. Lack of alternative housing.
8. Lack of job skills.
9. Social isolation resulting in lack of support from family and friends.
10. Social isolation resulting in lack of information about her alternatives and support systems.
11. Lack of understanding from family and friends, police, ministers.
12. Negative response from community, police, courts, social workers.
13. Fear of involvement in the court process.
14. Fear of the unknown, chronic anxiety, and/or depression.
15. Acceptable violence. Living with constant abuse numbs the victim so that they are unable to recognize that they are involved in a set pattern.
16. Ties to the community. The children would have to leave their school, and family would have to leave friends and neighbors.
17. Ties to home and belongings.
18. Family pressure.
19. Denial.
20. Loyalty.
21. Love. Often an abuser is quite loveable and loyal when he is not being abusive.
22. Shame and humiliation. “I don’t want anyone else to know.”
23. Guilt. They believe the abuse is caused by some inadequacy of their own.
24. Demolished self-esteem.
25. Lack of emotional support.
The following is a bill of rights for women in abusive relationships:
1. I have the right to ask for what I want.
2. I have the right to say no to requests or demands I can’t meet.
3. I have the right to express all of my feelings, positive or negative.
4. I have the right to change my mind.
5. I have the right to make mistakes and not have to be perfect.
6. I have the right to follow my own values and standards.
7. I have the right to say no to anything when I feel I am not ready, it is unsafe or it violates my values.
8. I have the right to determine my own priorities.
9. I have the right not to be responsible for others’ behavior, actions, feelings or problems.
10. I have the right to expect honesty from others.
11. I have the right to be angry at someone I love.
12. I have the right to be uniquely myself.
13. I have the right to feel scared and say “I’m afraid.”
14. I have the right to say “I don’t know.”
15. I have the right not to give excuses or reasons for my behavior.
16. I have the right to make decisions based on my feelings.
17. I have the right to my own needs for personal space and time.
18. I have the right to be playful and frivolous.
19. I have the right to be healthier than those around me.
20. I have the right to make friends.
21. I have the right to change and grow.
22. I have the right to be treated with dignity and respect.
23. I have the right to be happy.
Anyone can be a victim of domestic violence. Although both men and women can be abused, most victims are women. Children in homes where there is domestic violence are more likely to be abused or neglected. Even if the children are not physically harmed, they are likely to have serious emotional and behavioral problems and scars.
Abusers try to control their victim’s lives. When abusers feel a loss of control – like when the abused person leaves them – the abuse may get worse. If you are in an abusive situation, take special precautions when you leave. Develop a safety plan.
One of the most frustrating things for family and friends outside a battering relationship is trying to understand why the abused person doesn’t just leave. It is important to remember that extreme emotional abuse is always present in domestic violence situations. Violence takes place in many forms, is unpredictable and can happen all of the time or just once in a while. Violence is criminal including physical and sexual assault. It is paramount to remember that physical violence, even among family members, is wrong and against the law.
Some of the reasons partners stay in domestic violence situations are:
1. Economic dependence.
2. Fear of greater physical danger or danger for children.
3. Fear of being hunted down and suffering worse beatings.
4. Survival. Fear that the abuser will kill.
5. Fear of emotional damage to children.
6. Fear of losing custody of children.
7. Lack of alternative housing.
8. Lack of job skills.
9. Social isolation resulting in lack of support from family and friends.
10. Social isolation resulting in lack of information about her alternatives and support systems.
11. Lack of understanding from family and friends, police, ministers.
12. Negative response from community, police, courts, social workers.
13. Fear of involvement in the court process.
14. Fear of the unknown, chronic anxiety, and/or depression.
15. Acceptable violence. Living with constant abuse numbs the victim so that they are unable to recognize that they are involved in a set pattern.
16. Ties to the community. The children would have to leave their school, and family would have to leave friends and neighbors.
17. Ties to home and belongings.
18. Family pressure.
19. Denial.
20. Loyalty.
21. Love. Often an abuser is quite loveable and loyal when he is not being abusive.
22. Shame and humiliation. “I don’t want anyone else to know.”
23. Guilt. They believe the abuse is caused by some inadequacy of their own.
24. Demolished self-esteem.
25. Lack of emotional support.
The following is a bill of rights for women in abusive relationships:
1. I have the right to ask for what I want.
2. I have the right to say no to requests or demands I can’t meet.
3. I have the right to express all of my feelings, positive or negative.
4. I have the right to change my mind.
5. I have the right to make mistakes and not have to be perfect.
6. I have the right to follow my own values and standards.
7. I have the right to say no to anything when I feel I am not ready, it is unsafe or it violates my values.
8. I have the right to determine my own priorities.
9. I have the right not to be responsible for others’ behavior, actions, feelings or problems.
10. I have the right to expect honesty from others.
11. I have the right to be angry at someone I love.
12. I have the right to be uniquely myself.
13. I have the right to feel scared and say “I’m afraid.”
14. I have the right to say “I don’t know.”
15. I have the right not to give excuses or reasons for my behavior.
16. I have the right to make decisions based on my feelings.
17. I have the right to my own needs for personal space and time.
18. I have the right to be playful and frivolous.
19. I have the right to be healthier than those around me.
20. I have the right to make friends.
21. I have the right to change and grow.
22. I have the right to be treated with dignity and respect.
23. I have the right to be happy.
Anyone can be a victim of domestic violence. Although both men and women can be abused, most victims are women. Children in homes where there is domestic violence are more likely to be abused or neglected. Even if the children are not physically harmed, they are likely to have serious emotional and behavioral problems and scars.
Abusers try to control their victim’s lives. When abusers feel a loss of control – like when the abused person leaves them – the abuse may get worse. If you are in an abusive situation, take special precautions when you leave. Develop a safety plan.
Father’s Rights – Visitation Enforcement
- What is needed for visitation enforcement?
A valid court order that has been signed by a judge or issued by the district clerk’s office, certified as having been signed by a judge.
Be sure to read your order thoroughly. If you do not understand any of the provisions, take it to an attorney and have them explain it to you.
The custodial parent must have been validly served with the court order or it must be shown that the they had prior knowledge of the court order and its content.
The custodial parent must have full knowledge of the above two factors and must be intentionally and willfully violating the court order.
Despite the fact that you may have a valid court order, many police departments do not want to get involved in enforcing civil orders. If you call the police department and show them the order they may or may not assist you in gaining access to your children. Despite whether you get your children or not, you need to ask them to create a police report stating that you were there to pick up your children and noting the time and date you were present. If the police refuse to prepare a report, go to a local grocery store or fast food restaurant and purchase something so that you have a receipt stating that you were in the area and stating the date and time you were there.
How to prove a denial of visitation.
Take a witness along with you – preferably an off-duty constable or deputy or neutral party. Have your witness stay in the vehicle, but with the window down so that he/she can hear any conversations that take place. Have your vehicle parked in such a way that the witness can see you at all times.
Take a copy of your divorce decree along with you which shows you are suppose to have possession of your children on the date and time you arrive to pick them up.
Always be on time, and if possible a few minutes early.
If the custodial parent does not answer the door or have the child available to exercise visitation then call the police and request a Police Incident Report. If the police will not issue a police report then make sure you document the incident as best as possible. After two or three violations, take the reports, along with any witness statements, to an attorney to discuss how to bring an enforcement action against the custodial parent who is violating the order.
Take a tape recorder with you, have it running from the time you approach the residence, and do not stop it until you leave. Keep the tape recorder running as you leave the area. As you approach the residence state the following facts in the recorder: your complete name, the address you are approaching, the reason you are there “I am going to pick up my children as stated in the final decree,” state who is with you and why, state the time of day, state when you are leaving and a brief description of what occurred. Keep a written record of each recording and label them according to date.
Keep a calendar of each denied visitation.
Make sure you have a credible witness each time you try to exercise your possession with your children.
Do not argue with your ex-spouse regardless of how angry you are or whether you get your children or not. Staying calm will work in your favor in the long run.
If you file an enforcement action, if the custodial parent continues to deny you visitation after the suit is brought, continue to go and knock on the door to exercise your visitation, as each separate violation of the court order can be used in the enforcement action.
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