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.
Showing posts with label dallas divorce attorney. Show all posts
Showing posts with label dallas divorce attorney. Show all posts
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.
Tuesday, July 7, 2009
Divorce: What is separate property and what is community property?
Under the Texas Family Code, a spouses separate property consists of 1) the property owned or claimed by the spouse before marriage; 2) the property acquired by the spouse during marriage by gift, devise, or descent, and 3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.
The terms “owned and claimed” as used in the Texas Family Code mean that where the right to the property accrued before marriage, the property would be separate. Inception of title occurs when a party first has a right of claim to the property by virtue of which title is finally vested. The existence or nonexistence of the marriage at the time of incipiency of the right of which title finally vests determines whether property is community or separate. Inception of title occurs when a party first has a right of claim to the property.
Under Texas Constitution, Art. XVI, Section 15, separate property is defined as all property, both real and personal, of a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of that spouse; and laws shall be passed more clearly defining the rights of the spouses, in relation to separate and community property; provided that persons about to marry and spouses, without the intention to defraud pre-existing creditors, may by written instrument from time to time partition between themselves all or part of their property, then existing or to be acquired, or exchange between themselves the community interest of one spouse or future spouse in any property for the community interest of the other spouse or future spouse in other community property then existing or to be acquired, whereupon the portion or interest set aside to each spouse shall be and constitute a part of the separate property and estate of such spouse or future spouse; spouses may also from time to time, by written instrument, agree between themselves that the income or property from all or part of the separate property then owned or which thereafter might be acquired by only one of them, shall be the separate property of that spouse; if one spouse makes a gift of property to the other that gift is presumed to include all income or property which might arise from that gift of property; and spouses may agree in writing that all or part of the separate property owned by either or both of them shall be the spouses’ community property.
In 1917 the Legislature defined and income from separate property to be the separate property of the owner spouse. In Arnold v. Leonard, 114 Tex. 535,273 S.W. 799 (1925), the Supreme Court held that the Legislature did not have the constitutional authority to characterize the income from separate property as the owner’s separate property. The court explained that the Legislature’s authority was limited to enacting laws regulating the management and liability of marital property, not its separate or community character. This decision strengthened the constitutional principal that the Legislature may not define what is community and separate property in a manner inconsistent with Article 16, Section 15 of the Texas Constitution.
There are numerous means by which separate property may be acquired in defiance of Article 16, Section 15, a partial list includes mutations of separate property, increases in value of separate land and personality, recovery for personal injury not measured by loss of earning power, improvements of separate land with an unascertainable amount of community funds, and United States Securities purchased with community funds.
Although such property may undergo changes or mutations, as long as it is traced and properly identified it will remain separate property.
The Texas Family Code defines community property as follows: “community property consists of the property, other than separate property, acquired by either spouse during marriage.”
Texas Family Code, Section 3.003 states that all property possessed by either spouse during or at the dissolution of the marriage is presumed to be community property and that the degree of proof necessary to establish that property is separate property, rather than community property, is clear and convincing evidence. Clear and convincing evidence is defined as that measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. If property cannot be proved to be separate property, then it is deemed to be community property.
The Texas Family Code, Section 7.002, deals with quasi-community property and requires a court divide property wherever the property is situated, if 1) the property was acquired by either spouse while domiciled in another state and the property would have been community property if the spouse who acquired the property had been domiciled in Texas at the time of acquisition; or 2) property was acquired by either spouse in exchange for real or personal property and that property would have been community property if the spouse who acquired the property so exchanged had been domiciled in Texas at the time of the acquisition.
The terms “owned and claimed” as used in the Texas Family Code mean that where the right to the property accrued before marriage, the property would be separate. Inception of title occurs when a party first has a right of claim to the property by virtue of which title is finally vested. The existence or nonexistence of the marriage at the time of incipiency of the right of which title finally vests determines whether property is community or separate. Inception of title occurs when a party first has a right of claim to the property.
Under Texas Constitution, Art. XVI, Section 15, separate property is defined as all property, both real and personal, of a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of that spouse; and laws shall be passed more clearly defining the rights of the spouses, in relation to separate and community property; provided that persons about to marry and spouses, without the intention to defraud pre-existing creditors, may by written instrument from time to time partition between themselves all or part of their property, then existing or to be acquired, or exchange between themselves the community interest of one spouse or future spouse in any property for the community interest of the other spouse or future spouse in other community property then existing or to be acquired, whereupon the portion or interest set aside to each spouse shall be and constitute a part of the separate property and estate of such spouse or future spouse; spouses may also from time to time, by written instrument, agree between themselves that the income or property from all or part of the separate property then owned or which thereafter might be acquired by only one of them, shall be the separate property of that spouse; if one spouse makes a gift of property to the other that gift is presumed to include all income or property which might arise from that gift of property; and spouses may agree in writing that all or part of the separate property owned by either or both of them shall be the spouses’ community property.
In 1917 the Legislature defined and income from separate property to be the separate property of the owner spouse. In Arnold v. Leonard, 114 Tex. 535,273 S.W. 799 (1925), the Supreme Court held that the Legislature did not have the constitutional authority to characterize the income from separate property as the owner’s separate property. The court explained that the Legislature’s authority was limited to enacting laws regulating the management and liability of marital property, not its separate or community character. This decision strengthened the constitutional principal that the Legislature may not define what is community and separate property in a manner inconsistent with Article 16, Section 15 of the Texas Constitution.
There are numerous means by which separate property may be acquired in defiance of Article 16, Section 15, a partial list includes mutations of separate property, increases in value of separate land and personality, recovery for personal injury not measured by loss of earning power, improvements of separate land with an unascertainable amount of community funds, and United States Securities purchased with community funds.
Although such property may undergo changes or mutations, as long as it is traced and properly identified it will remain separate property.
The Texas Family Code defines community property as follows: “community property consists of the property, other than separate property, acquired by either spouse during marriage.”
Texas Family Code, Section 3.003 states that all property possessed by either spouse during or at the dissolution of the marriage is presumed to be community property and that the degree of proof necessary to establish that property is separate property, rather than community property, is clear and convincing evidence. Clear and convincing evidence is defined as that measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. If property cannot be proved to be separate property, then it is deemed to be community property.
The Texas Family Code, Section 7.002, deals with quasi-community property and requires a court divide property wherever the property is situated, if 1) the property was acquired by either spouse while domiciled in another state and the property would have been community property if the spouse who acquired the property had been domiciled in Texas at the time of acquisition; or 2) property was acquired by either spouse in exchange for real or personal property and that property would have been community property if the spouse who acquired the property so exchanged had been domiciled in Texas at the time of the acquisition.
Monday, June 29, 2009
Children in Distress: What to Do When You Need Emergency Relief
The right to obtain physical possession of a child, the right to obtain temporary relief without prior notice to the other party, and the right to exclude a party from a residence are all special circumstances in which emergency relief may be requested.
A writ of attachment is a court order requiring a child be produced at a particular location at a particular time. It is used in situations where a party is entitled to possession of a child under a court order. It may also be used when an emergency exists and a child is in imminent danger to his or her physical or emotional welfare.
The remedy is extraordinary. As such, specific facts must be alleged to command the court to issue the writ. The writ should be requested only when necessary to protect the welfare of the child.
Section 105.001 of the Texas Family Code provides the court may not render an order, except on a verified pleading or an affidavit which (1) attached the body of a child; (2) takes the child into the possession of the court or into the possession of a person designated by the court or (3) excludes a parent from possession of or access to a child.
Requests for writs of attachment are contained in petitions, motions and applications in suits affecting the parent child relationship and are filed ancillary to other requests. The court must then make a determination as to whether the necessity exists for the writ and the applications are in proper order.
The court issues a writ commanding any sheriff or constable to attach the body of a child and deliver the child to a designated place. That designated place is a location specified by the court who may command that the child be brought to the court or the court may provide a location where the child may be delivered by law enforcement.
Habeas corpus actions are brought when a party claiming a right to possession of a child is seeking the court’s help in getting the child physically turned over to that party. The court shall compel return of the child to the person filing the habeas corpus only if the court finds that the filer is entitled to possession under the order.
If the court fails to compel return of the child, the court may issue temporary orders if a suit affecting the parent child relationship is pending. The court may issues such temporary orders only if the suit affecting parent child relationship is pending and the temporary hearing is set at the same time as the habeas corpus hearing. The court may then enter an order if a serious immediate question concerning the welfare of the child is shown at the temporary hearing.
The court has defined “serious and immediate question” to mean imminent danger of physical or emotional harm that requires immediate action to protect the child. If a right to possession is established, the exception to granting the writ occurs when a serious and immediate question concerning the welfare of the child exists. If the writ is denied after the right to possession under a prior court order is established, the Texas Supreme Court requires the trial court issue a written temporary order containing a finding that there is a serious and immediate question concerning the child.
A serious and immediate question, although often alleged, is rarely found in habeas corpus actions.
A temporary order, when entered, should not be a final adjudication of custody. At a minimum, the temporary order should contain the filer’s temporary rights to possession and should set a further hearing.
A writ of attachment is a court order requiring a child be produced at a particular location at a particular time. It is used in situations where a party is entitled to possession of a child under a court order. It may also be used when an emergency exists and a child is in imminent danger to his or her physical or emotional welfare.
The remedy is extraordinary. As such, specific facts must be alleged to command the court to issue the writ. The writ should be requested only when necessary to protect the welfare of the child.
Section 105.001 of the Texas Family Code provides the court may not render an order, except on a verified pleading or an affidavit which (1) attached the body of a child; (2) takes the child into the possession of the court or into the possession of a person designated by the court or (3) excludes a parent from possession of or access to a child.
Requests for writs of attachment are contained in petitions, motions and applications in suits affecting the parent child relationship and are filed ancillary to other requests. The court must then make a determination as to whether the necessity exists for the writ and the applications are in proper order.
The court issues a writ commanding any sheriff or constable to attach the body of a child and deliver the child to a designated place. That designated place is a location specified by the court who may command that the child be brought to the court or the court may provide a location where the child may be delivered by law enforcement.
Habeas corpus actions are brought when a party claiming a right to possession of a child is seeking the court’s help in getting the child physically turned over to that party. The court shall compel return of the child to the person filing the habeas corpus only if the court finds that the filer is entitled to possession under the order.
If the court fails to compel return of the child, the court may issue temporary orders if a suit affecting the parent child relationship is pending. The court may issues such temporary orders only if the suit affecting parent child relationship is pending and the temporary hearing is set at the same time as the habeas corpus hearing. The court may then enter an order if a serious immediate question concerning the welfare of the child is shown at the temporary hearing.
The court has defined “serious and immediate question” to mean imminent danger of physical or emotional harm that requires immediate action to protect the child. If a right to possession is established, the exception to granting the writ occurs when a serious and immediate question concerning the welfare of the child exists. If the writ is denied after the right to possession under a prior court order is established, the Texas Supreme Court requires the trial court issue a written temporary order containing a finding that there is a serious and immediate question concerning the child.
A serious and immediate question, although often alleged, is rarely found in habeas corpus actions.
A temporary order, when entered, should not be a final adjudication of custody. At a minimum, the temporary order should contain the filer’s temporary rights to possession and should set a further hearing.
A Child’s Testimony and the Law
The Texas Family Code provides for the child to have a voice in the Courtroom. The “voice” appears in many forms and in many places in the Texas Family Code.
Texas Family Code Section 153.008 allows a child to file his/her preference with the Court, if the child is 12 years of age or older. This statute infers that the child’s preference is binding if the Court approves the designation. However, the statute is absent any coercive language. Many argue that the age of 12 is too young or too immature to understand the impact of a preference. “12” is not a magical number. The statute also does not state that the Court must make a determination upon the executed preference.
Although one can view the filing of a preference as a “voice” of the child, many litigants view the filing as a starting place, just a request of the child. The same child who may sign a preference for one parent having the right to determine he said primary residence, may also prefer to live with the other parent. The right to determine the primary residence of the child is not necessarily the right to have primary physical possession – or is it?
The code continually strives to be gender neutral and avoid the use of the term: physical custody. The term “primary physical custody” is not contained in the statute, nor is there any language stating where the child lives or resides. Each parent gets possession for a certain period of time. Yet, no where does the code state “I live with mom/dad.”
Current law also states that a child may be a witness. The Code makes certain that family law will be conducted as other civil cases. Texas Family Code Section 104.002 gives specific rules for admission of a statement of a child who is under 12 years of age, and in cases that involve abuse. The idea is that the statement of the child will be pre-recorded and not simply a deposition. The statute is designated to give some comfort to the child in an atmosphere that may allow that abused child to feel safe. It is clear that 104.002 is designed for cases dealing with abuse only, as it has “exceptions” to what would otherwise be testimony under simple cross examination. The statute applies to children who are under the age of twelve years, with the idea that the statements are not elicited for purpose of establishing a preference, but for the purpose of establishing fact.
Section 153.009 allows an in chamber interview with the child. In a non-jury trial or at a hearing, on the application of a party, the amicus attorney or the attorney ad litem for the child, the court SHALL interview in chambers a child 12 years of age or older and MAY interview in chambers a child under 12 years of age to determine the child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence. The court may also interview a child in chambers on the court’s own motion for a purpose specified by this subsection.
In a non-jury trial or at a hearing on the application of a party, the amicus attorney, or the attorney ad litem for the child or on the court’s own motion, the court may interview the child in chambers to determine the child’s wishes as to possession, access or any other issue in the suit affecting the parent-child relationship. Interviewing the child does not diminish the discretion or the court in determining the best interest of the child. In a jury trial, the court may not interview the child in chambers regarding an issue on which a party is entitled to a jury verdict. In any trial or hearing, the court may permit the attorney for a party, the amicus attorney, the guardian ad litem for the child, or the attorney ad litem for the child to be present at the interview. On the motion of a party, the amicus attorney, or the attorney ad litem for the child, or on the court’s own motion, the court shall cause a record of the interview to be made with the child is 12 years of age or older. A record of the interview shall be part of the record in the case.
Under current law, the interview of a child in chambers is limited to a non-jury case and does not have any place in a jury trial. However, the statute is clear that the interview can lead to much more information for the Court than simply questioning the child’s wishes as to conservatorship. There is very little case law to guide the practitioner on this point.
There is nothing in the Family Code that precludes a child from testifying in a deposition. The use of deposition testimony may be the best approach to obtaining a child’s testimony in a jury trial. The parties may even agree to take the deposition at a place other than the law office, allowing a less hostile environment.
The use of pictures and family videos is another way to get a child’s voice heard.
Texas Family Code Section 153.008 allows a child to file his/her preference with the Court, if the child is 12 years of age or older. This statute infers that the child’s preference is binding if the Court approves the designation. However, the statute is absent any coercive language. Many argue that the age of 12 is too young or too immature to understand the impact of a preference. “12” is not a magical number. The statute also does not state that the Court must make a determination upon the executed preference.
Although one can view the filing of a preference as a “voice” of the child, many litigants view the filing as a starting place, just a request of the child. The same child who may sign a preference for one parent having the right to determine he said primary residence, may also prefer to live with the other parent. The right to determine the primary residence of the child is not necessarily the right to have primary physical possession – or is it?
The code continually strives to be gender neutral and avoid the use of the term: physical custody. The term “primary physical custody” is not contained in the statute, nor is there any language stating where the child lives or resides. Each parent gets possession for a certain period of time. Yet, no where does the code state “I live with mom/dad.”
Current law also states that a child may be a witness. The Code makes certain that family law will be conducted as other civil cases. Texas Family Code Section 104.002 gives specific rules for admission of a statement of a child who is under 12 years of age, and in cases that involve abuse. The idea is that the statement of the child will be pre-recorded and not simply a deposition. The statute is designated to give some comfort to the child in an atmosphere that may allow that abused child to feel safe. It is clear that 104.002 is designed for cases dealing with abuse only, as it has “exceptions” to what would otherwise be testimony under simple cross examination. The statute applies to children who are under the age of twelve years, with the idea that the statements are not elicited for purpose of establishing a preference, but for the purpose of establishing fact.
Section 153.009 allows an in chamber interview with the child. In a non-jury trial or at a hearing, on the application of a party, the amicus attorney or the attorney ad litem for the child, the court SHALL interview in chambers a child 12 years of age or older and MAY interview in chambers a child under 12 years of age to determine the child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence. The court may also interview a child in chambers on the court’s own motion for a purpose specified by this subsection.
In a non-jury trial or at a hearing on the application of a party, the amicus attorney, or the attorney ad litem for the child or on the court’s own motion, the court may interview the child in chambers to determine the child’s wishes as to possession, access or any other issue in the suit affecting the parent-child relationship. Interviewing the child does not diminish the discretion or the court in determining the best interest of the child. In a jury trial, the court may not interview the child in chambers regarding an issue on which a party is entitled to a jury verdict. In any trial or hearing, the court may permit the attorney for a party, the amicus attorney, the guardian ad litem for the child, or the attorney ad litem for the child to be present at the interview. On the motion of a party, the amicus attorney, or the attorney ad litem for the child, or on the court’s own motion, the court shall cause a record of the interview to be made with the child is 12 years of age or older. A record of the interview shall be part of the record in the case.
Under current law, the interview of a child in chambers is limited to a non-jury case and does not have any place in a jury trial. However, the statute is clear that the interview can lead to much more information for the Court than simply questioning the child’s wishes as to conservatorship. There is very little case law to guide the practitioner on this point.
There is nothing in the Family Code that precludes a child from testifying in a deposition. The use of deposition testimony may be the best approach to obtaining a child’s testimony in a jury trial. The parties may even agree to take the deposition at a place other than the law office, allowing a less hostile environment.
The use of pictures and family videos is another way to get a child’s voice heard.
Monday, June 8, 2009
Torn Apart: Children and Divorce
Despite the difficulties faced in a divorce, the children should not be placed in the center of the crossfire. During the divorce process, and sometimes following the divorce process, it is not uncommon for a parent to become so wrapped up in anger, vengeance or simply being “right” that they forget the effect the whole process is having on the children. Below are some behaviors to avoid and some suggestions to assist you with improving your communications during the divorce process:
1. Do not use children as messengers between “mom” and “dad.”
2. Do not criticize your former spouse in the presence of your children because children realize they are part “mom” and part “dad.”
3. Resist any temptation to allow your children to act as your caretaker. Children need to be allowed the freedom to be “children.” Taking on such responsibility at an early age degrades their self-esteem, feeds anger and hinders a child’s ability to relate to their peers.
4. Encourage your children to see your former spouse frequently. Promote a good relationship for the benefit of the child.
5. Do not argue with your former spouse in the presence of the children. No matter what the situation, the child will feel torn between taking “mommy’s” side and “daddy’s” side.
6. At every step during the divorce process, remind yourself that your children’s interests are paramount, even over your own.
7. If you are the non-primary parent, pay your child support.
8. If you are the primary parent and are not receiving child support, do not tell your children. This feeds a child’s sense of abandonment and erodes their stability.
9. Remember that the Court’s view child support and child custody as two separate and distinct issues. Children do not understand whether “mommy” and/or “daddy” paid child support, but they do understand that “mommy” and/or “daddy” wants to see me.
10. If at all possible, do not uproot your children. When a family is falling apart, a child needs a stable home and school life to buffer the trauma.
11. If you have an addiction problem, whether it be drugs, alcohol or any other affliction, seek help immediately. Such impairments inhibit your ability to reassure your children and give them the attention they need.
12. If you are having difficulty dealing with issues relating to your former spouse, discuss such issues with mental health professionals and counselors.
13. Reassure your children that they are loved and that they have no fault in the divorce.
Though these steps are not all-inclusive, they will assist you in dealing with the complex issues of a divorce and hopefully minimize the impact of the divorce process on the children.
1. Do not use children as messengers between “mom” and “dad.”
2. Do not criticize your former spouse in the presence of your children because children realize they are part “mom” and part “dad.”
3. Resist any temptation to allow your children to act as your caretaker. Children need to be allowed the freedom to be “children.” Taking on such responsibility at an early age degrades their self-esteem, feeds anger and hinders a child’s ability to relate to their peers.
4. Encourage your children to see your former spouse frequently. Promote a good relationship for the benefit of the child.
5. Do not argue with your former spouse in the presence of the children. No matter what the situation, the child will feel torn between taking “mommy’s” side and “daddy’s” side.
6. At every step during the divorce process, remind yourself that your children’s interests are paramount, even over your own.
7. If you are the non-primary parent, pay your child support.
8. If you are the primary parent and are not receiving child support, do not tell your children. This feeds a child’s sense of abandonment and erodes their stability.
9. Remember that the Court’s view child support and child custody as two separate and distinct issues. Children do not understand whether “mommy” and/or “daddy” paid child support, but they do understand that “mommy” and/or “daddy” wants to see me.
10. If at all possible, do not uproot your children. When a family is falling apart, a child needs a stable home and school life to buffer the trauma.
11. If you have an addiction problem, whether it be drugs, alcohol or any other affliction, seek help immediately. Such impairments inhibit your ability to reassure your children and give them the attention they need.
12. If you are having difficulty dealing with issues relating to your former spouse, discuss such issues with mental health professionals and counselors.
13. Reassure your children that they are loved and that they have no fault in the divorce.
Though these steps are not all-inclusive, they will assist you in dealing with the complex issues of a divorce and hopefully minimize the impact of the divorce process on the children.
Monday, June 1, 2009
Step-parent Conflict: Put the Kids First
Thirty seven percent of families in the United States are blended families. Sixty percent of second marriages end in divorce. A biological parent has his hands full, but as most step-parents will tell you, their job is even more complicated.
Following a divorce, it is not uncommon for a new step-parent to become the target of unprovoked spite or anger. In many cases, the previous-spouse harbors unfounded fears that their child will look to a new step-parent as a mother or father replacement figure. This can engender resentment to what may already be an uncomfortable situation between parties. Regretfully, these issues often escalate very quickly. Such resentments place the children squarely in the middle of a bitter fight between the people they love the most and are not healthy for anyone involved. The pain of conflicting loyalties to each parent and a child’s feeling of being “caught in the middle” of such disputes exacts an enormous emotional toll on a child. When a parent is in a rage, it is not uncommon for a child to withdraw. The child’s behavior towards the non-primary parent may abruptly change. This change in behavior may have more to do with keeping the primary parent happy than it does with how they really feel about the non-primary parent or step-parent. It is essential that you make it clear to your child that you love them and will always be there for them, regardless of the emotional or less than rosy current circumstances.
It is crucial to a child’s self-esteem and emotional growth that parents avoid putting children in the middle of such disputes. This can be incredibly difficult, however, when a selfish or manipulative parent does not think twice about wrongfully placing his or her child in the middle of conflict. Children are very perceptive and as they grow older they will ultimately realize when a parent has lied to them and used them for their own emotional or financial gain. Though they may temporarily identify with the aggressors, in time they will deeply resent the parent who has manipulated them.
Regardless of the circumstances, it is critical that biological parents avoid arguments or conflicts in the presence of the children. Such conduct is conducive to parental alienation goals of the misguided previous spouse. If the child sees that you maintain a calm and collected demeanor, it gives them reason to pause and feel safe.
If a previous spouse is making statements to the child regarding issues that should only be discussed between adults, tell the child that such discussions are inappropriate and you will take them up with the other parent at another time.
It is ok to tell your child “I am sorry,” if they are upset, even if you are not the parent upsetting them. This validates that they are hurting and relieves any false guilt they may have over things that are being said and done when you are not present. It is sometimes helpful to use everyday situations to explain conflict to your child. As an example, when dealing with conflict explain that “brothers and sisters fight, but they still love each other. Families have to work through conflict in order to stay together. I would not leave you if you made a mistake, I would not want you to leave me.” Such statements reinforces that reasonable conflict is ok and assures the child that you will remain a constant force in their life regardless of the situation.
If you feel that the conflict has escalated to a point of becoming emotionally abusive and/or destructive to the child, consult an attorney. It may be in the best interest of the child that he or she be removed from the primary parent and placed with the non-primary parent so that he or she is allowed to love all parental figures, parents and step-parents alike, unconditionally.
The Nacol Law Firm
Law office of attorney Mark Nacol
Serving the Dallas / Fort Worth area for over 30 years
Tel: 972-690-3333
Following a divorce, it is not uncommon for a new step-parent to become the target of unprovoked spite or anger. In many cases, the previous-spouse harbors unfounded fears that their child will look to a new step-parent as a mother or father replacement figure. This can engender resentment to what may already be an uncomfortable situation between parties. Regretfully, these issues often escalate very quickly. Such resentments place the children squarely in the middle of a bitter fight between the people they love the most and are not healthy for anyone involved. The pain of conflicting loyalties to each parent and a child’s feeling of being “caught in the middle” of such disputes exacts an enormous emotional toll on a child. When a parent is in a rage, it is not uncommon for a child to withdraw. The child’s behavior towards the non-primary parent may abruptly change. This change in behavior may have more to do with keeping the primary parent happy than it does with how they really feel about the non-primary parent or step-parent. It is essential that you make it clear to your child that you love them and will always be there for them, regardless of the emotional or less than rosy current circumstances.
It is crucial to a child’s self-esteem and emotional growth that parents avoid putting children in the middle of such disputes. This can be incredibly difficult, however, when a selfish or manipulative parent does not think twice about wrongfully placing his or her child in the middle of conflict. Children are very perceptive and as they grow older they will ultimately realize when a parent has lied to them and used them for their own emotional or financial gain. Though they may temporarily identify with the aggressors, in time they will deeply resent the parent who has manipulated them.
Regardless of the circumstances, it is critical that biological parents avoid arguments or conflicts in the presence of the children. Such conduct is conducive to parental alienation goals of the misguided previous spouse. If the child sees that you maintain a calm and collected demeanor, it gives them reason to pause and feel safe.
If a previous spouse is making statements to the child regarding issues that should only be discussed between adults, tell the child that such discussions are inappropriate and you will take them up with the other parent at another time.
It is ok to tell your child “I am sorry,” if they are upset, even if you are not the parent upsetting them. This validates that they are hurting and relieves any false guilt they may have over things that are being said and done when you are not present. It is sometimes helpful to use everyday situations to explain conflict to your child. As an example, when dealing with conflict explain that “brothers and sisters fight, but they still love each other. Families have to work through conflict in order to stay together. I would not leave you if you made a mistake, I would not want you to leave me.” Such statements reinforces that reasonable conflict is ok and assures the child that you will remain a constant force in their life regardless of the situation.
If you feel that the conflict has escalated to a point of becoming emotionally abusive and/or destructive to the child, consult an attorney. It may be in the best interest of the child that he or she be removed from the primary parent and placed with the non-primary parent so that he or she is allowed to love all parental figures, parents and step-parents alike, unconditionally.
The Nacol Law Firm
Law office of attorney Mark Nacol
Serving the Dallas / Fort Worth area for over 30 years
Tel: 972-690-3333
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