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.
Monday, June 29, 2009
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.
Battered Women: End the Violence (the Protective Order)
The Texas Health and Human Services commission reported an estimated 982,916 Texas women were victims of domestic violence in the year 2006. In Texas, more than 800 women were killed by their domestic partners between 1998 and 2005. These statistics evidence the growing number of women in need of protection.
The legal system can offer some protection from family violence through the use of a Protective Order. A Protective Order is a civil court order that is designed to restrain an abuser from continuing acts of violence and threatening, harassing, or stalking conduct. All victims of family violence are eligible for a Protective Order. A court shall render a protective order if it finds that family violence has occurred and is likely to occur in the future. A victim’s testimony about family violence may be enough to obtain a protective order, without other documents such as a police reports.
Family, in Texas, has a very broad definition. Family can include relatives by blood or marriage, former spouses, parents of the same child (even if not married), foster parents or foster children, or any member or former member of a household (whether related by blood or marriage). Any adult member of the family may file for a Protective Order to protect himself or herself or any other member of the applicant’s family or household, including children or the elderly. The application may be obtained through the office of the county or district attorney, a private attorney or a legal aid program.
Protective orders can be important in ending or deterring family violence. The purpose of the order is to: prevent future violence, identify appropriate and inappropriate behavior and reinforce beliefs that family violence is wrong. A judge can create various conditions of a Protective Order. In such order he can force a respondent to vacate a residence, pay child support, attend counseling, and/or not possess a firearm. A Protective Order can require the abuser to stay away from the victim’s home, workplace, children, children’s school, and to keep a specific distance between the abuser and the victim. It can order the abuser to stop communicating in a harassing or threatening manner. Abusers who violate a protective order can be fined, arrested or both. Keep in mind, no piece of paper can protect you from all incidents of violence; however, a Protective Order provides a good deterrent in most situations.
If the court reviewing the application determines there is a real threat of family violence, the court may issue a temporary ex parte order without notice to the abuser which is valid for up to 20 days. The court will then set a hearing date for the final protective order which will take place within the 20 day period. At the final hearing, if the court so determines necessary, it may grant a final Protective Order that may be effective for up to two years.
Protective Orders are also available for people going through divorce. In this case, the Protective Order must be filed in the same court where the divorce is pending and the pleadings in both matters must state that the other matter is pending. It is important to remember that a Protective Order is not a custody determination and can not be used by one party to gain an advantage in a divorce proceeding.
Please contact your local law enforcement or domestic violence prevention agency immediately if you or someone you care about is a victim of family violence. Even if you are not eligible for a Protective Order, there may be other options available. For information on family violence contact the Texas Council on Family Violence, P.O. Box 161810, Austin, Texas 78716; Phone Number (512) 794-1133;
Website: http://www.tcfv.org.
The following is a safety planning list of things to get together if you are planning to leave: If you have children, take them and take your pets if you can:
Identification for yourself and your children:
Birth certificates
Social security cards
Driver’s license
Photo identification or passport
Welfare identification
Green card
Important personal papers:
Marriage certificate
Divorce papers
Custody orders
Protective orders or restraining orders
Health insurance papers and medical cards
Medical records for family members
School records for children
Investment papers/records and account numbers
Work permits
Immigration papers
Rental agreements/lease or house deed
Car title, registration and insurance information
Funds:
Cash
Credit cards
ATM card
Checkbook and bank (deposit slips)
Keys:
House
Car
Safety deposit box
Post office box
Way to communicate:
Phone calling card
Cell phone (pay as you go phone is less traceable)
Address book
Medications:
At least 1 month’s supply of all medications
Way to get by:
Jewelry or small objects you can sell if you run out of money
or your account access gets cut off
Things to help you cope:
Pictures
Keepsakes
Children’s small toys and books
The legal system can offer some protection from family violence through the use of a Protective Order. A Protective Order is a civil court order that is designed to restrain an abuser from continuing acts of violence and threatening, harassing, or stalking conduct. All victims of family violence are eligible for a Protective Order. A court shall render a protective order if it finds that family violence has occurred and is likely to occur in the future. A victim’s testimony about family violence may be enough to obtain a protective order, without other documents such as a police reports.
Family, in Texas, has a very broad definition. Family can include relatives by blood or marriage, former spouses, parents of the same child (even if not married), foster parents or foster children, or any member or former member of a household (whether related by blood or marriage). Any adult member of the family may file for a Protective Order to protect himself or herself or any other member of the applicant’s family or household, including children or the elderly. The application may be obtained through the office of the county or district attorney, a private attorney or a legal aid program.
Protective orders can be important in ending or deterring family violence. The purpose of the order is to: prevent future violence, identify appropriate and inappropriate behavior and reinforce beliefs that family violence is wrong. A judge can create various conditions of a Protective Order. In such order he can force a respondent to vacate a residence, pay child support, attend counseling, and/or not possess a firearm. A Protective Order can require the abuser to stay away from the victim’s home, workplace, children, children’s school, and to keep a specific distance between the abuser and the victim. It can order the abuser to stop communicating in a harassing or threatening manner. Abusers who violate a protective order can be fined, arrested or both. Keep in mind, no piece of paper can protect you from all incidents of violence; however, a Protective Order provides a good deterrent in most situations.
If the court reviewing the application determines there is a real threat of family violence, the court may issue a temporary ex parte order without notice to the abuser which is valid for up to 20 days. The court will then set a hearing date for the final protective order which will take place within the 20 day period. At the final hearing, if the court so determines necessary, it may grant a final Protective Order that may be effective for up to two years.
Protective Orders are also available for people going through divorce. In this case, the Protective Order must be filed in the same court where the divorce is pending and the pleadings in both matters must state that the other matter is pending. It is important to remember that a Protective Order is not a custody determination and can not be used by one party to gain an advantage in a divorce proceeding.
Please contact your local law enforcement or domestic violence prevention agency immediately if you or someone you care about is a victim of family violence. Even if you are not eligible for a Protective Order, there may be other options available. For information on family violence contact the Texas Council on Family Violence, P.O. Box 161810, Austin, Texas 78716; Phone Number (512) 794-1133;
Website: http://www.tcfv.org.
The following is a safety planning list of things to get together if you are planning to leave: If you have children, take them and take your pets if you can:
Identification for yourself and your children:
Birth certificates
Social security cards
Driver’s license
Photo identification or passport
Welfare identification
Green card
Important personal papers:
Marriage certificate
Divorce papers
Custody orders
Protective orders or restraining orders
Health insurance papers and medical cards
Medical records for family members
School records for children
Investment papers/records and account numbers
Work permits
Immigration papers
Rental agreements/lease or house deed
Car title, registration and insurance information
Funds:
Cash
Credit cards
ATM card
Checkbook and bank (deposit slips)
Keys:
House
Car
Safety deposit box
Post office box
Way to communicate:
Phone calling card
Cell phone (pay as you go phone is less traceable)
Address book
Medications:
At least 1 month’s supply of all medications
Way to get by:
Jewelry or small objects you can sell if you run out of money
or your account access gets cut off
Things to help you cope:
Pictures
Keepsakes
Children’s small toys and books
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
Monday, May 18, 2009
The “Special Needs Child” in Divorce
Divorce is a difficult time for all family members, but especially for the children. A child that has a serious illness or difficulty prior to the initiation of a divorce may have such problem accelerate during the divorce process. We call such child the “Special Needs Child”. This child has apparent or diagnosed emotional/medical problems.
Special Needs children are seriously impacted by the decisions made during a divorce. It is important for parties to determine how meaningful, regular visitation will be accomplished and which parent will have the right to make major decisions on how to address the child’s emotional and medical needs. During a divorce, most parents have difficulty agreeing on issues, especially issues related to the problems associated with a special needs child.
1. Child with Emotional Issues:
Children will always experience some level of negative emotions during the divorce process, even in the best circumstances. When a child has a mental illness or emotional problem, how visitation periods are managed, who has the authority to make a decision on medical treatment and therapy and how such decisions will be followed and enforced in each parent’s household will greatly affect the success or failure of the final decree as it pertains to the child. It is very important to have an order that is flexible and meets the child’s changing needs, yet remains enforceable should action need to be taken due to a parent’s failure to meet the needs of the child.
Three of the most reported emotional and behavioral issues involving children are Attention Deficit Hyperactivity Disorder (ADHD) Behavioral or Conduct Disorders, Oppositional Defiant Disorder (ODD), and chemical addictions.
2. Special Medical Needs
When a child has significant medical health problems or disabilities, parents may have very different opinions on who should be the decision maker regarding doctors, medications and regimens for a particular situation. This may be compounded by the emotions and breakdown in the marital relationship. The court must help to balance the needs and rights of the parents so that each has a voice in their child’s treatment decisions. It is also important that the parties, along with the Court, work for a consistent treatment protocol for the best interest of meeting the child’s medical needs.
The real battleground in custody cases becomes the allocation of rights and duties between the parties. This is exacerbated when the child involved has emotional or medical needs. Other factors that may compound issues are 1) other children involved and 2) whether they also have special needs. Major problems occur when there are differing views between the parents on how to best treat the problem, lack of consensus among medical and mental health professionals as to the appropriate protocol for treatment and uncertainty among family courts as to which protocol to “impose” upon the family.
Courts vary greatly on how each allocates rights and duties, even in joint managing conservatorship situations. In the event the parties cannot agree on the allocation of rights pertaining to educational and medical decisions, then the focus of a custody case becomes one of which parent can best make decisions that are in the best interest of the child.
To make a meaningful decision on the care of the child, the court will need evidence of the following:
· Which parent is the most involved in the decision marking as pertains to the relevant issue?
· What are the competing theories of how to best treat the child?
· Current opinions from the child’s physician and /or therapist.
· What is the generally accepted treatment for the specific condition?
· What is the likelihood of each parent following the protocol selected by the court?
· How successful has the treatment been in the past?
· What are the attitudes of the parents in relation to considering alternative methods if the current situation doesn’t work?
· Which parent has shown a proven effort at recognizing the child’s needs and working to address them?
The selection of a reputable expert in the particular field in which the child is affected is paramount to a true evaluation of the situation. Not all doctors and therapists are created equal, and the expert must be a specialist in working with the child’s specific problem.
The Nacol Law Firm P.C.
Law office of Attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972- 690-3333
Special Needs children are seriously impacted by the decisions made during a divorce. It is important for parties to determine how meaningful, regular visitation will be accomplished and which parent will have the right to make major decisions on how to address the child’s emotional and medical needs. During a divorce, most parents have difficulty agreeing on issues, especially issues related to the problems associated with a special needs child.
1. Child with Emotional Issues:
Children will always experience some level of negative emotions during the divorce process, even in the best circumstances. When a child has a mental illness or emotional problem, how visitation periods are managed, who has the authority to make a decision on medical treatment and therapy and how such decisions will be followed and enforced in each parent’s household will greatly affect the success or failure of the final decree as it pertains to the child. It is very important to have an order that is flexible and meets the child’s changing needs, yet remains enforceable should action need to be taken due to a parent’s failure to meet the needs of the child.
Three of the most reported emotional and behavioral issues involving children are Attention Deficit Hyperactivity Disorder (ADHD) Behavioral or Conduct Disorders, Oppositional Defiant Disorder (ODD), and chemical addictions.
2. Special Medical Needs
When a child has significant medical health problems or disabilities, parents may have very different opinions on who should be the decision maker regarding doctors, medications and regimens for a particular situation. This may be compounded by the emotions and breakdown in the marital relationship. The court must help to balance the needs and rights of the parents so that each has a voice in their child’s treatment decisions. It is also important that the parties, along with the Court, work for a consistent treatment protocol for the best interest of meeting the child’s medical needs.
The real battleground in custody cases becomes the allocation of rights and duties between the parties. This is exacerbated when the child involved has emotional or medical needs. Other factors that may compound issues are 1) other children involved and 2) whether they also have special needs. Major problems occur when there are differing views between the parents on how to best treat the problem, lack of consensus among medical and mental health professionals as to the appropriate protocol for treatment and uncertainty among family courts as to which protocol to “impose” upon the family.
Courts vary greatly on how each allocates rights and duties, even in joint managing conservatorship situations. In the event the parties cannot agree on the allocation of rights pertaining to educational and medical decisions, then the focus of a custody case becomes one of which parent can best make decisions that are in the best interest of the child.
To make a meaningful decision on the care of the child, the court will need evidence of the following:
· Which parent is the most involved in the decision marking as pertains to the relevant issue?
· What are the competing theories of how to best treat the child?
· Current opinions from the child’s physician and /or therapist.
· What is the generally accepted treatment for the specific condition?
· What is the likelihood of each parent following the protocol selected by the court?
· How successful has the treatment been in the past?
· What are the attitudes of the parents in relation to considering alternative methods if the current situation doesn’t work?
· Which parent has shown a proven effort at recognizing the child’s needs and working to address them?
The selection of a reputable expert in the particular field in which the child is affected is paramount to a true evaluation of the situation. Not all doctors and therapists are created equal, and the expert must be a specialist in working with the child’s specific problem.
The Nacol Law Firm P.C.
Law office of Attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972- 690-3333
Divorce really sucks (a view from the trenches) Part 5
Trial Strategy – Constructive or Nonproductive
Throughout the tenure of a divorce or custody suit, strategies are employed to improve the strategic position of a spouse before the court or a civil jury.
A non-all-inclusive list of such pursuits of a spouse and his or her attorney may include the following non-productive trial strategies:
1. False claim of child abuse – frequently attorneys and/or their clients will make artificial or transparent claims of child abuse either directly to a jury in a trial or through the filing of a frivolous Child Protective Services complaint. Such ineffective claims may include claims of physical abuse (when in truth is a properly administered and appropriate corporal punishment for grievous conduct dangerous to the child), false claims of injury (whether it be normal scrapes and bruises occurring from play, garden variety accidents all children have, or fractures to the arm or leg occurring through no real fault of either spouse). Frequently, the claims are exaggerated with photographs and close up shots and, on occasion, artificial support from the minor child through the coercion of a spouse. Jury’s are very resentful of this approach and will hold the party asserting such frivolous claims accountable at the end of the day.
2. False claims of alcoholism, substance abuse and/or prescription drug excess – painting a picture of a spouse as an alcoholic or a danger to his or her child based on a glass of wine at an Italian restaurant is frequently a ploy attorneys will use given great social resentment to alcoholism, DWIs and general drug abuse. Certainly, if the abuse is real the claim is valid and is constructive. However, frequently clients will exaggerate social alcohol consumption that is reasonable and is looked upon by the jury as a waste of their time and they will frequently hold the party falsely alleging such abuse accountable.
3. WAR by financial attrition - if there is insufficient community property to adequately fund both sides of a divorce, one spouse may use outside sources of income in the form of family loans, gifts, spend thrift trust disbursements or other disbursements from relatives to financially bring the opposing spouse to his or her knees and demand agreement to terms that are unreasonable and not productive for the underfunded spouse or the children of the marriage. Regrettably, the divorce process is part of the adversary system of justice and leaves this unfair loophole open in such circumstances. Though not outright unethical, such conduct and strategy does not pass the smell test.
4. Cookie cutter witnesses – preachers, rabbis, soccer coaches, parents, grandmothers, grandfathers, brothers and sisters generally bring a yawn from the jury or the court. If their testimony is direct, short and fact driven on an important core issue in a divorce or custody suit, they are necessary. In general, the jury’s perspective is, “what do you think a preacher, grandparent or soccer coach is going to say about the child in their care...that the mother or father they support are bad?”
5. Use of the children as spies – attorneys or clients that use the children to spy and give testimony before a court or jury almost always fail in their goal. Most judges and a majority of juries are highly resentful for bringing minor children into the fray and such a strategy is doomed to backfire before the judge or jury. Clearly, if a relatively mature child is the ONLY source of information that is core to the case and IF there is no other third party professional or other source to support the issue, sometimes the testimony is necessary. This is especially true in cases of real abuse, parental alienation and other destructive conduct that is fundamental to the issues of the case.
Productive strategies:
1. Here is a novel idea. How about truth and sincerity. It has been this writer’s experience that a jury will give some ear to experts, social workers, teachers, coaches, doctors, preachers and other witness with personal knowledge. Inevitably, the final result is driven by the truth and sincerity of the spouse testifying. With predictable regularity a jury will make their decision based squarely on the shoulders of the spouse testifying and the honesty and forthrightness of their testimony.
2. Experts – psychologists, psychiatrists, social workers, doctors and other professionals will be given credibility to some degree by a jury IF their opinions are based on acceptable, acknowledged predictable science and IF they have spent sufficient time with the minor child and/or both parents to render a believable opinion. Rent-an-expert’s testimony is disdained by most juries and seen for what it is - as an opinion for hire. The longer the relationship between the testifying expert and the minor child, the greater the likelihood will be that the opinion is fairly received and considered by a court or jury.
3. Election by a minor over 12 years of age- any child over the age of 12 may sign an election (affidavit) of their preference of primary caregiver. The courts will strongly consider these elections and in the large number of the cases make a decision based on the child’s wishes. Juries will favorably consider such elections so long as they are based on believable facts and parental propriety. However, the securing of such an affidavit when in conjunction with a new car, a new wardrobe, or a loose, undisciplined parental attitude towards control of the child will result in the opposite of what the spouse seeks in obtaining such an election. The elections are not binding on the court, but if they are legitimate and based on fact, they are highly cogent evidence which the court and the jury will strongly consider.
4. Depositions of paramours, IRS agents, psychologists, doctors, ex-wives, employers, secretaries, etc. – well thought out, terse, and to the point testimony on facts that support a claim revealed in depositions is far more effective than hearsay or other testimony that is not likely to be received well by the jury. It is important that such deposition testimony be short, to the point and dispositive of a real issue in the case.
The above is not an inclusive list of strategies employed during the divorce proceeding, however, if properly employed or excluded may be instrumental in a positive result for the client during this very difficult time.
The Nacol Law Firm P.C.
Law office of Attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333
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