Six Factors Texas Family Courts Should Consider When Relocating A Child

There is a popular bumper sticker seen in the Lone State State : "I wasn't born in Texas, but I got here as fast as I could!". 

But as unbelievable as it may seem, there are a fair number of people that want to move out of the State every year ( I know- crazy, right?)

Some of those "Tex-patriates" are primary conservators who have been granted the exclusive right to designate the primary residence of one or more children.  However in many cases, the courts have limited that right to designating the child's residence within a geographic restriction.  In the interest of giving both parents easy access to the children so they can have regular contact, Family Courts in Texas often place these geographic restrictions.  Essentially, they allow one parent to determine the residency of a child, but within a certain zone.   Depending on the case and the court, this could be a zone encompassing a city or town, a whole Texas county, a Texas county and the counties contiguous to it  (touching it's boarders), or to the whole State of Texas.

Many of these folks may have a very good reason to want to relocate,  such as a military reassignment for themselves or their new spouse, or better job opportunities.  If that is the case, the parent wishing to move must request the court modify the prior order to lift or reform the geographic restriction.  If that request is contested by the other parent who stays behind, then the courts must decide whether or not to grant the relocation of the child.

As we mentioned in this blog in the past, there are many emotional and practical factors that come into play when deciding to move a child.  But when a court is left to make the determination, then the factors must be based in law as well.

In the past, there has been little case law to assist trial judges in making a relocation determination.  But in recent years, the Texas Supreme Court and various Courts of Appeal, are slowly developing a consensus on specific factors for trial courts to consider.  Although ruling on relocation cases remains fact intensive, the developing body of case law offers certain factors that, if answered in the affirmative, favor the granting of requests to lift geographic restrictions.
 
Beginning in 2002, Texas case law has developed specific factors that courts may consider in ruling on a whether a party may establish a child’s residence without a geographic limitation.  The emerging body of case law does point to one theme:  Courts should apply a fluid balancing test that permits the consideration a number of factors. 

     The leading case in relocation is Lenz v. Lenz, 79 S.W.3d 10 (Tex. 2002).  In this case of first impression, the Texas Supreme Court considered the requests of conservator having the right to determine the child’s residence within the State of Texas to relocate the child to Germany.  In its discussion of Sec. 153.001 and 153.002, the Supreme Court recognized that the Family Code does not elaborate on specific requirements for modification in the residency-restriction context.  It also considered the section’s pronouncement that “(t)he public policy of this state is to (1) assure the children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child.” (Sec. 153.001).  However, the Supreme Court stated that “no bright-line test can be formulated”.  The Court reviewed relocation jurisprudence in other states and noted that courts are “moving away from a relatively strict presumption against relocation and towards a fluid balancing test that permits the trial courts the consideration of a number of factors.

    For many years there have been in place a few very general guiding principal for ANY type of modification. Texas Legislature has made it the public policy that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child. (Tex. Fam. Code Sec. 153.001(a)).  The Legislature has also emphasized the best interest of the child shall be the primary consideration of the court in determining issues such as relocation. (Tex. Fam. Code Sec. 153.002).   With these principals in mind, the legislature then created law that said when a conservator has been granted the exclusive right to determine the child’s primary residence within a geographic area, and that conservator later wishes to relocate beyond that area, the court may modify the geographic restriction.  (Tex. Fam. Code Sec. 156.101-156.1045).  Section 156.101 provides that a court should grant that request if the movant can show that such modification is:

(1)  in the best interest of the child; and

(2)  the circumstances of the child, a conservator, or another party affected by the order have materially and substantially changed since the earlier of the date of the rendition of the order.

     HOWEVER, the help for trial level Courts ends there.  There has been no specific guidance in teh instances of relocation cases.  What exactly is the "best interest of a child" in the complex and often compelling facts of relocation cases?  Luckily, case law is helping refine that question.  A review of the case law starting with the Lenz case shows six emergent factors that the Courts should consider in granting a request to lift a geographic restriction and relocate a child:

      1.     Will the relocation result in an improved financial situation?  In Lenz, the Court noted that the improved financial situation in the new location may contribute to the primary conservator being able to provide a better standard of living for the children.  Also, In re: E.C.M., 2010 WL 2943091 (Tex.App. -Amarillo Jul 28, 2010) (NO. 07-09-00242-CV)  the Court elaborated on this factor when it upheld the relocation citing the primary conservator's improved financial or job situation and ability to provide a better standard of living- A neutral third party who conducted a social study recommended that Mother continue to provide the child's primary residence even after moving to Austin because Mother was able to be a "stay-at-home mom", and because Stepfather's higher paying job was a positive thing for the child.

       2.     Will the relocation strengthen familial relationships?  The Court noted in Lenz that there were strong familial ties of extended family in the new location which favored allowing the move.  Also, Jenkins v. Jenkins, 2001 WL 507221 (Tex. App.–Dallas 2001, writ denied) (not designated for publication) where relocation would allow the mother to be closer to her own family and support system, from whom she needed economic and physical support.

       3.     Will the relocation increase the well-being of the Movant- which in turn will benefit the child?  In Lenz, the Court stated that “the custodial parent provides the child with a basic quality of life, a child’s best interest is closely intertwined with the well-being of the custodial parent.. to disavow the custodial parent’s influence on his or her children ignores the fundamental relationship between parent and child.” Id at 19.   See also:  Hoffman v. Hoffman, 2003 WL 22669032 (Tex. App.-Austin) (not designated for publication); and In re: E.C.M., 2010 WL 2943091 (Tex.App. -Amarillo Jul 28, 2010) (NO. 07-09-00242-CV); In re Cooper, 333 S.W.3d 656 (Tex.App.-Dallas 2009, no pet.) citing improved “quality of life” justifying the lifting of geographic restrictions.

           

      4.     Will the Possessory Conservator continue to have regular and meaningful contact with the child?  The Court pointed out in Lenz that the children can maintain frequent contact with their father and that the father could relocate in order to be near his sons.  (See also:  Hoffman v. Hoffman,2003 WL 22669032 (Tex.App.-Austin)

           

      5.     Does the Movant intend to foster and encourage the child’s relationship with the other parent?  Since Lenz, the Texas Court of Appeals has decided several relocation cases.  Out of Travis County comes Echols v. Olivarez, 85 S.W.3d 475 (Tex.App.-Austin 2002, no pet.).  In supporting the trial court’s decision to lift the geographic restriction allowing the mother to take the child with her to Tennessee, the Court of Appeals heavily cited Lenz including that concept that the new position in Tennessee offered additional financial security and the expectation of career advancement.  The Court of Appeals offered an additional factor in assessing whether a change is positive and, in the child’s, best interest.  In finding in favor of the movant, the Court noted that “(t)he mother’s intent was to continue to foster and encourage the child’s relationship with his father”. (See also: Cisneros v. Dingbaum, 224 S.W.3d 245, (Tex.App.-El Paso 2005, no pet.) where the mother and her husband offered to provide videoconferencing on their home computer and telephone contact.)

      6.     Does the Possessory Conservatory fail to exercise all periods of possession? In re: E.C.M., 2010 WL 2943091 (Tex.App. -Amarillo Jul 28, 2010) (NO. 07-09-00242-CV).  Noncustodial parent's involvement with the Child-Though Father presented evidence that he was a fully engaged father, Mother's testimony showed that Father did not consistently exercise all his periods of possession. Further, Mother testified that Father had limited involvement in the child's day-to-day care.

Other Possible Factors

      The following factors are mentioned in case law, although it is less clear how central they were to the Court’s ultimate decision:

      Holly Factors.  To the extent applicable, the Holley factors may also be considered in the analysis. (See:  In re C.R.O., Knopp v. Knopp) Those factors include: (1) the desires of the children, (2) the emotional and physical needs of the children now and in the future, (3) the emotional and physical danger to the children now and in the future, (4) the parental abilities of the individuals involved, (5) the programs available to those individuals to promote the best interest of the children, (6) the plans for the children by these individuals, (7) the stability of the home, (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not proper, and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976)

        Relocation Is Due to a Spouses’ Military Assignment.  Cisneros v. Dingbaum, 224 S.W.3d 245, (Tex.App.-El Paso 2005, no pet.)

        Sole Managing Conservatorship.  Jenkins v. Jenkins, 2001 WL 507221 (Tex. App.–Dallas 2001, writ denied) (not designated for publication).  The Jenkins court suggested that this might be a factor to consider when it stated that one of the core rights of a sole managing conservator is the exclusive right to establish the child's residence and domicile and that “While keeping families close together geographically may facilitate visitation, as a practical matter, the best interests of the child will often parallel those of the primary caretaker. The primary caretaker parent should not be restricted from moving with the child when the proposed move would not impair the well-being of the child.” 

      Over time, as cases are decided, appealed and ruled on by the higher courts, the trial level courts will have greater clarity and guiding principals upon which to decide what its in the best interest of children in relocation cases.  One thing is certain,  as our economy shifts and with our increasingly mobile society, these types of case will arise more and more often in Texas Courts.

A (NOT SO) Simple Equation To Calculate What Your Case Is Worth.

A while ago, Jimmy Buffet wrote a song called "Math Sucks", a sentiment shared by many mathphobes.  But math probably never sucked harder than when it is being used to deconstruct your life and reduce years of memories and hard work down to such a feeble thing as a raw number.  But when you are involved in a divorce, getting the right number is critical in determining whether you will come out ok, or getting financially destroyed.  Now that REALLY would suck.

If your attorney is a good one, he is getting your case ready for the worst possible scenario and will be busily preparing your case for trial- that is the ultimate goal of his efforts.  However, the client’s calculations should be geared towards settlement, as that is often the most favorable result.  So how can you decide if a settlement offer is a good one or not?  Once again we have to turn to our old "frien-emy": math.

Knowing the total value of your property is the first and hardest step but unfortunately, it is not the only part of the equation.  You should also add in the costs of litigation to your calculation. So when you are considering whether to accept a settlement offer, you can use the following formula.

Total value of assets you think the judge will award you  -  the total amount of debt you think the judge will award you -litigation fees (Legal fees + Expert fees + other costs + time missed from work + mental health costs + time value of money)  < settlement offer.

In other words, if the value of the settlement offer is more than what you think the judge would award you LESS all the costs of litigation, you should take the offer.  

Obviously there are lots of variables in this equation and the values for each of these may be constantly changing.  But that is why the help of a good attorney team is essential to helping you decide if a settlement offer is even in the ballpark and even worth considering.

Snoring, Fishing or Too Much Sex: Top 10 Excuses for Getting a Divorce

Unless you are VERY far behind the times, it should be no news that you do not need to prove that your spouse caused the breakup of a marriage to get a divorce- pretty much if you want a divorce, you can have it.  California was the first in 1970 and today all states in the union provide for some kind of "no- fault" divorce.  Seventeen states are "true" no-fault in that they don't provide any option for a claim of fault.  Thirty-three other states, including here in Texas, have an optional scheme: you can either plead no- fault, or plead one of the traditional fault based claims such as adultery, abandonment, or cruelty.

With great regularilty, bills are introduced into our state legislature that would make Texas return to the "fault-only" basis for granting a divorce.  Each time the bills are defeated, but it makes one wonder what would happen if such a bill did pass in the modern era.  The motivation behind such bills are clear- the proposal is an attempt to reduce the number of divorces by making it more difficult to obtain one- in the hope that parties will reconsider their action.  But would the amount of divorces really go down?

I certainly don't think so.  I think that most people will lie or at least exaggerate their circumstance to get what they want- a permanent, legal divorce.

Take the case of Great Britain.  They do not have "no fault" divorce.  There, divorces are granted only if the moving party can show that the spouse has engaged in some "unreasonable behavior"- although there is no legal definition for that term.  Basically, Brits must come up with a reason- any reason- for divorcing, and our usually conservative cousins across the pond can prove to be quite imaginative in their reasons.   A recent study has shown some of the most popular grounds for divorce in Great Britain.  They include every kind of annoyance-even if the behavior is seen by others as healthy or positive.  This includes seek divorce because the partner has become a fanatical cyclist or has started going to the gym every day, or has suddenly given up dairy and gluten. 

Here then are the top ten reasons given for divorcing in Great Britain:

1.  A partner's illness
2.  Snoring
3.  Going to the gym too much
4.  Being ungrateful for all the work their partner does
5.  Being hopeless with money
6.  Disagreement over respective politics
7.  Food fanaticism
8.  Fishing
9.  Sex- either not enough, being offered too much, or loss of interest
10.  Suspicion the other party is messing around

If Texas ever returned to a fault based divorce system, I wonder how creative our "top ten list" would be?

Liens and Forclosures: An Underutilized Child Support Enforcement Tool?

Texas attorneys may be missing out on a great opportunity to enforce child support orders through the use of liens and foreclosures.

It is quite galling to someone struggling to meet the basic needs of their child because ordered child support is not being paid, to see the obligor enjoying the use of his lavishly furnished lakeside vacation home complete with jet skis.  The Texas Family Code provides for liens and seizures of certain property but many Texas attorneys do not attempt this. The reluctance of many attorneys to consider the seizure of personal assets of the obligor may be from them incorrectly thinking that the exemptions provided in the Texas Constitution would make finding non-exempt property all but impossible.

However, child support is an expressed exception to the property exemptions of Property Code Sections 42.001 and 42.002.

In the case of Dryden v. Dryden, 97 S.W.3d 869 (Tex.App--Corpus Christi 2003, pet. denied), a Sherrif's sale was ordered for failure to pay child support and the Court of Appeals approved the sale of items including a second vehicle, jewelry, athletic equipment, sporting goods, and furniture.

If a seizure is sought, it is important for the attorney enforcing a Texas child support order to first file either an abstract of judgment or a child support lien notice.  Only then should a Writ of Execution be filed.

Texas Family Code 157.311-331 details the procedures of filing a lien.

Can Parents Agree to Reduce/Settle Child Support Arrearages On Their Own?

YES, but only after the arrears has been reduced to a final written judgment of the court.

This relieves the pressure on the Custodial Parent/Obligee from having to agree to a reduced judgment on past due support out of desperation to receive some financial relief immediately. It offers the full weight of Enforcement mechanism of the Family Code to the Custodial Parent/Obligee.

“ Due to the financial hardships so frequently encountered by the custodial parent following divorce, the failure of the former spouse to pay court-ordered child support puts the custodial parent in a very difficult position. If the non-custodial parent offers to pay a portion of child support arrearages in settlement of the entire amount due, the custodial parent may be persuaded to accept the offer due to present financial difficulties and the possibility of further delay and expense in collecting the unpaid amount.” Williams v Patton

When drafting a contempt order, the judgment must first be addressed THEN a release of a set dollar amount and THEN a new judgment for the reduced amount (if any) with order to pay.

See Williams v. Patton, 821 S.W.2d 141 (1991)
https://www.leagle.com/decision/1991962821sw2d1411960

Can a Court Use A Parent's Immigration Status to Deny Joint Custody?

Probably not.

Parents are generally always named Joint Managing Conservators (JMC) unless one parent can provide evidence that proves that a parent's immigration status has a material, adverse effect on their ability to parent.

In the recent case of Turrubiartes v. Olvera, 2018 Tex. App. LEXIS 1017 (Tex. App.--Houston [1st Dist.] Februrary 6, 2018)(opinion on rhr'g)(Cause No. 01-16-00322-CV). A father argued that the main reason he should be name sole managing conservator of his three children was that he was a U.S. Citizen and the mother was not. Father said he feared that the mother would be stopped while driving the kids in Texas and be deported.

The lower court granted Sole Managing Conservatorship to the father. In it's findings of fact on the ruling, nine out of the thirteen factors the court said it considered had to with the mother's immigration status.

The Court of Appeal for the 1st District overturned the ruling. They pointed out that "immigration status" is not expressly listed in TFC 153.134(a) as one of the factors that a court may use in overcoming the presumption that parents should be named Joint Managing Conservators. The COA said the father's fear of the mother being deported while driving the children was resolve by her being ordered by the lower court to find a licensed driver for the children. The Court of Appeals concluded that father's other points for him being named sole managing conservator were not sufficient to overcome the joint managing presumption.

Comment:
This is not the last we will hear of immigration status being used as a weapon in a custody case. With the recent Federal Court ruling upholding punitive measures used against so called "sanctuary cities", the political winds still seem to be blowing hard against illegal immigrants in Texas. It should be noted that in this case the COA seemed to ignore the catch all statutory factor under 153.134(a) of "any relevant factor"- which may be used in the future. Future cases, with the right fact pattern in may find success in using immigration status as a reason factor in custody cases. I would not be surprised if a conservative legislator will jump on this and seek to add immigration status to 153.134(a).

Is there a Statute of Limitations Concerning Money Judgment for Child Support?

Yes.
The court of continuing, exclusive jurisdiction retains jurisdiction to confirm the total amount of child support arrearages and enter judgment for past-due child support. The statute of limitations concerning a money judgment is ten years. The suit must be filed within ten years from the date the child becomes an adult, or the child support obligation terminates. (157.005(b)).

40 Documents You Should Bring To Your Divorce Lawyer

Attorneys charge by the hour so it literally pays for you to be prepared. Here is a list of items you should be gather prior to meeting with your divorce attorney so that your initial interview will go quickly and efficiently.

1. Individual income tax returns for past three to five years (federal, state, and local)
2. Business income tax returns for past three to five years (federal, state, and local)
3. Proof of your current income
4. Proof or spouse’s current income
5. Prenuptial agreement, if already drafted
6. Divorce decrees from previous marriages
7. Bank statements
8. Certificates of deposit
9. statements
10. Retirement account statements
11. Trusts
12. Stock portfolios
14. Stock options
15. Mortgages
16. Property tax statements
17. Credit card statements
19. Loan documents
20. Utility bills
21. Other bills (e.g., school tuition, unreimbursed medical bills, etc.)
22. Monthly budget worksheet
23. Completed financial statements
24. Employment contracts
25. Benefits statements
26. Life insurance policies
27. Health insurance policies
28. Homeowner’s insurance policies
29. Automobile insurance policies
30. Personal property appraisals
31. Real property appraisals
32. List of personal property, including home furnishings, jewelry, artwork, computers, home office equipment, clothing and furs, etc.
33. List of property owned by each spouse prior to marriage
34. List of contents of safety deposit boxes
35. Wills
36. Living Wills
37. Powers of Attorney
38. Durable Powers of Attorney
39. Advance Health Care Directives
40. Your checkbook.

Your lawyer may not ask for all these items, but there is a good chance each of them will be needed at some course in your divorce.  Gathering them now will help you and your lawyer.

Sean Y. Palmer has worked as a Divorce and Family Law Attorney in the Houston Metro Area for the last 18 years.

Twelve Rules for Better Writing Better Legal Emails

Better e-mail writing can result in proposals that win contracts, get you promoted, and just get your message across to the receiver and ultimately win your case. Here are 12 tips on style and word choice that can make your legal e-mails clear and persuasive.

1. PRESENT YOUR BEST SELF
Its human nature for your moods to vary. The beauty of emails is that real time conversations , e-mails are written alone and on your own schedule. Take advantage of this and take the time to let your best personality shine through. Although it is tempting to immediately reply to an email to get it out of your inbox, a better strategy for important e-mails is to compose our answer when your time is not pressured- and especially wait if your are angry.

2. WRITE IN CLEAR CONVERSATIONAL STYLE
Most lawyer lean too much in the direct of formality and the emails tend to be long winded and stiff. The better way is go is to keep it simple. Write to express- not to impress. A relaxed conversational style can add vigor and clarity to your emails.

3. BE CONCISE
Lawyers are busy people and they charge by the hour. Make your writing less time-consuming for them to read by telling the whole story in the fewest possible words. Avoid redundancies - needless wordiness and phrases that repeat the same conference.

4. BE CONSISTENT
Good writers strive for consistency in the use of numbers, hyphens, units of measurement, punctuation, etc. Keep in mind that if you are inconsistent in any of these matters of usage, you are automatically wrong at least part of the time.

5. USE JARGON SPARINGLY
Use legitimate legal or technical terms when they communicate your ideas precisely, but avoid using legal jargon just because the words sound impressive.

6. AVOID BIG WORDS
Using big, important-sounding words instead of short, simple works is a mistake. Fancy language just frustrates the reader.

7. PREFER THE SPECIFIC TO THE GENERAL
Readers of emails want facts. Don't just say good, bad, or fast. Say how good, how bad, how fast.

8. BREAK UP YOUR WRITING INTO SHORT SECTIONS
Long, unbroken blocks of text are stumbling blocks that intimidate and bore readers. Break up your writing into short sections and short paragraphs which makes the text easier to read.

9. USE VISUALS
Drawings, graphs and other visuals can reinforce your e-mail. Especially with legal communications, visuals can make your emails more effective.

10. USE THE ACTIVE VOICE
Voice refers to the person speaking works or doing an action. Whenever possible, use the active voice. Your writing will be more direct and vigourous; your sentences will be more concise.

11. ORGANIZATION
Poor organization stems from poor planning. Before you write an email, plan. For very important emails, you should create a rough outline that spells out the contents and organization. The outline is a tool to aid your organization, not a commandment etched in stone. If you want to change it as you go along- fine.

12. LENGTH
Keep your email as short as possible. The art of being concise in your e-mail writing can require considerable effort in the rewriting and editing stage. Philosopher Blaise Pascal once wrote to a friend and apologized for sending a long letter. He said, "I would have written a shorter letter, but I didn't have the time."

Top 15 Texas Family Code Sections Dealing with Contempt of Court

A motion for contempt is not limited to the Texas Family Code.  A violation of other types of court orders may also be the subject of an family law enforcement action- for example, a temporary order concerning the emergency protection of children.

A court clearly has the power of contempt to enforce such orders, assuming the order meets certain tests.

Listed here are the Top 15 Family Code sections that mention contempt or enforcement or define when something becomes an order of the court and is therefore enforceable, such as Associate Judge's recommendation or registration procedure.

1. § 6.506- Violation of temporary court orders concerning divorce and property, including spousal support.

2.  §105.001(f)-  Violation of temporary orders concerning children.

3.  §157.007-  Affirmative Defense to Motion for Enforcement of Possession or Access

4.  §157.008- Affirmative Defense to Motion for Enforcement of Child Support

5.  §9.008 and 157.421-  Clarification of orders not specific to permit contempt

6.  §160.622- Violation of Orders Concerning Paternity Testing

7.  §9.012- Enforcing the Division of Property

8.  §152.303- Enforcing a Custody Decree from Another State

9.  §154.188- Enforcing Orders Requiring Health Insurance for a Child

10.  §81.004, 85.024, 85.026- Provisions of Title IV Protective Orders

11.  §159.603- Uniform Interstate Family Support Act (same effect as Texas order)

12.  §264.306-  Child and Family Services, Refusal to Participate in Counseling Regarding Abused or Neglected Child- Community Service as Sanction for Contempt

13.  §201.013- Associate Judge's Recommendation Becomes Order When Signed by the Court

14.  Civil Practice and Remedies Code §31.002-  Although Not Not Contained In the Family Code, The Turnover Statue is included Because it Has Application to Enforcement of Judgments.  The Court May Enforce By Contempt Its Order Concerning Turnover of Assets.

15.  §8.059- Maintenance (Alimony) When AN Order of the Court Or When An Agreement For the Payment of Maintenance Has Been Voluntarily Entered Into Between The Parties And Approved By the Court.

The proper handling of a contempt matter requires technical skill and care and a vast knowledge of the Family Code and other applicable Texas Codes.  If your case involves contempt, you should seek out the help of an attorney who is experienced in this complex area of the law.

I've Been Sued for Not Paying Child Support, But My Child Has Been Living With Me. Can I Argue This In My Defense?

Yes you can. If the order is for your child to live with the other party, but your child has lived with you partially, you may be entitled to an offset of the child support obligation. If the child has lived with you full time, you may be entitled to a complete discharge.

If the managing conservator has voluntarily relinquished to the obligor the actual care, control and possession of the child for a time period in excess of court-ordered possession or access, the obligor may affirmatively plead and prove that actual support, if any which was supplied to the child. The court may treat this proof as a defense and offset, in whole or in part, to a motion for contempt for failure of the obligor to make periodic support payments according to the terms of the order (157.008).

Sean Y. Palmer is a Texas Family Law and Divorce Attorney who practices in Galveston and Houston Texas.  

I Have and Family Law Order I Want to Enforce. How Do I Start?

You are angry and you want justice. You went through all the effort of getting an order from the court and now the other side is not following it. What do you do?

The process you want is called Enforcement and it is one of the most tricky areas of family law. The reason is, is that the process is often “quasi-criminal” in nature, and therefore the other side gets many, many protections. And because double jeopardy often applies (the legal principle that a person cannot be tried twice on the same crime), then if you screw the enforcement up, you will lose any right to try to enforce again.

A person found to be in contempt of court is subject to a find of up to $500.00 and jail time of not more than six months for each violation. Contempt is considered to be criminal in nature and the rules require specific and careful pleading, evidence, and orders. If you are seeking the enforcement of your order, you should only hire an attorney experienced in this area of law, and certainly should not try to do this on your own (pro se).

The pleadings , which should be filed in the court of continuing, exclusive jurisdiction, (Family Code 157.001(d)), must give notice of the provisions of the order sought to be enforced and must state the amount owed under the terms of the order, the amount paid and the amount of the arrearage (157.002). Attaching the pay record to the motion is evidence of the facts asserted in the payment record and is admissible to show whether payments were made (157.162).

It is important to remember that a finding of contempt by the court will require a detailed commitment order which includes the requirements in 157.166. The language in this statute is mandatory.

If I’ve said it once, I’ve said it a million times- don’t go it alone. You need to get the help of an experienced family lawyer. If you can’t afford an attorney and are willing to go through more red tape you can request assistance from a government agency. Agency attorneys are often maligned because they are government. And while it is true that you will have to wait a much longer time and must sign forms in triplicate and jump through many hoops, the lawyers themselves are often very experienced and experts in this area of law.

If you are seeking enforcement of child support, you can contact your local Attorney General Office. If you are in Texas: (www.texasattorneygeneral.gov)

Many counties with large populations have a county agency called a Domestic Relations Office. Like the OAG, this county agency will also help enforce child support, but it they also help enforce orders on child visitation (called possession/access). These agencies are often more user friendly because they are smaller. If you are in Harris County, Texas: (www.dro.harriscountytx.gov) .

Sean Y. Palmer has been practicing law exclusively in the area of Family Law and Divorce for eighteen years. He lives in Kemah Texas with his Daughter and a Fish named Harvey.

Top Six Warning Signs Your Spouse May Be Cheating On You... Through Taxes!

When one spouse decides to divorce in their heart and mind, they often keep their plans secret so they can prepare to end the marriage to their best financial advantage. Unfortunately, this preparation is often at the expense of the other spouse who is unprepared for the coming storm of divorce.

A marriage joins two people together as one. This is true not only emotionally, but financially and legally as well. In a marriage union each spouse has a "fiduciary duty" to the other- a promise and obligation to look out for the other person's financial situation and not cheat them through the special trust relationship of marriage.

But what happens when one spouse has begun to view themselves as a separate person. When marriages begin to fall apart, obviously emotions run high. Sometimes one spouse is in denial and refuses to acknowledge the signs that should be obvious. This is particularly unfortunate because it is precisely at this time- when your spouse no longer feels they have to keep their fiduciary duty to you- that you need to put emotions aside and keep your wits about you and prepare for your own, separate financial future.

One of the last things thought about- even among many divorce lawyers is the tax implications of your divorce. Most married persons file joint income tax returns automatically, even when only one may generate all of the income. But when marital disruption gets underway the returns are often late or not filed at all. Bad feelings and suspicion may arise as one spouse tries to box the other into a tax corner.

There also could be underwithholdings, omissions of income, exaggerations of deductions, interception of refunds and destruction of tax notices.

If you are facing the prospect of a divorce, you need to be aware of the early warning signs that Here are the top warning signs

1. YOUR SPOUSE REFUSES TO SIGN THE TAX RETURN

Not signing the joint return can be your first signal that your spouse is preparing for a divorce. If your spouse delays or gives reasons for not signing your joint return, you should pay attention. Your spouse may be thinking about a financial future that does not include you.

2. YOUR SPOUSE INTENTIONALLY UNDER-WITHHOLDS

Your spouse may be aware of the co-liability that attached to a joint tax return. The devious spouse will want to take as much cash as they can and make you jointly liable for the increased tax bill - while he/she squirrelled away the cash. There is no easy way to discover this however. Your spouse may change their W-4 Employee's Withholding Allowance Certificate to take less tax deduction without your consent and the employer is not required to notify the employee's spouse. The innocent should review their spouse's pay stubs. If your spouse refuses to show you or delays or makes excuses- then you should be very suspicious.

3. YOUR SPOUSE SKIPS ESTIMATED PREPAYMENTS

Many couples have sources of income that are not immediately taxable such as self employment income, rental property income, and the like. The innocent spouse needs to be aware that prepayment of estimated taxes is the law. This is generally done quarterly with IRS FORM 1040-ES Estimate Tax for Individuals. If your spouse has started to file forms that are grossly inadequate to the normal, filed later or not at all then your spouse may be preparing for a divorce.

4. NOT REPORTING SUBSTANTIAL INCOME

By signing the joint return, the innocent spouse is confirming all that it contains and making him/her equally liable for any tax fraud it entails. If the income reported is less than 25% of what was actually earned, then the IRS considers this a "substantial omission" and triggers a special rule (IRS code 6501(e)) that allows the IRS to examine all returns for the prior six years. If a substantial omission is discovered, then a 75% civil fraud penalty applies.

5. YOUR SPOUSE INTERCEPTS THE TAX REFUNDS

Because most returns direct the IRS to direct deposit funds into an account electronically, it is ridiculously easy for a devious spouse to put in the account number for a separately held account that the innocent spouse does not know about. If the devious spouse is especially cunning, they will deposit into the joint account a small portion of the tax refund because the innocent spouse often will not pay attention to, or will have forgotten the amount of the refund from the return they signed. The best way to check against this for the innocent spouse to keep a copy of the return and cross reference the joint account when the refund is deposited.


6. YOUR SPOUSE DESTROYS TAX NOTICES.

If your spouse insists or makes excuses why her or she should be the one to collect the mail every day, you should be suspicious. The IRS will send notice errors or delinquency and if ignored, the IRS may begin to levy money from the innocent spouse's paycheck or financial accounts. If your spouse destroyed all the letters and communications including the Notice of Levy, then the first time they find out about it is when their paycheck or separate account is "suddenly" short.

In each of these warning signs, there may be reasonable explanations and separate and alone, they do not necessarily justify taking any kind of legal action. But taken together, and along with any other factors you may see in your marriage they may indicate you need to begin to take steps to protect yourself from getting in trouble with the IRS and/or being denied a fair division of the marital estate during a divorce.

If have strong suspicions you should check with a skilled divorce attorney who understands the tax implications of divorce and understand your legal and financial rights.

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Sean Y. Palmer is an Texas Attorney who has practiced exclusively in the area of Family Law for the the better part of 17 years. He lives in Kemah, Texas with his daughter, and a fish named Harvey.

Are there any Statute of Limitations on Child Support Enforcement?

Although there aren't "statute of limitations" in the traditional sense, there are however, time limits that must be adhered to when enforcing child support.

In 2009, the legislature extended the time to file an enforcement action. Now, a motion for contempt concerning child support must be filed within two years after (1) the child becomes an adult or (2) the date on which the child support obligation terminates pursuant to the decree of order by operation of law. (157.005(a)) (increased from 6 months).

Note the distinction concerning a statute of limitations concerning contempt and other remedies. If you are seeking a money judgment only (not contempt) you have ten years to file from the earlier of (1) the date the child turned 18, or (2) the date the child support obligation ends. (157.005(b))

Also, while not technically a statute of limitations, you should be aware that the statutes have certain limitations on the length of confinement. Texas Government Code 21.002(h) provides that: 1) in criminal contempt, the maximum penalty is $500 and 18 months confinement, and 2) in civil contempt (coercive), the maximum confinement is the lesser of 18 months or the date of compliance.

To find out more about Child Support Enforcement or other family law matters, please visit www.thepalmerlawfirm.com

Contempt is Quasi-Criminal

Contempt is often though of as a civil remedy, but it is actually 

treated like criminal one because it can involve putting a person in jail for defying a court's order.  Therefore legal proceedings for contempt of child support or possession and access orders are styled as "quasi-criminal". 

Because of this, enhanced attention to due process is paid by the courts.  Many of the rights of the accused that are usual seen only in criminal court are often seen in child related enforcement proceedings.  This includes the right against self-incrimination and the right to appointed counsel. (TFC 157.163).  In addition, a lawyer practicing this kind of law has to be technically competent because there is very little "fudge factor" as with general domestic law practice.  Therefore those kinds of "loose" lawyers who usually practice by personality or the seat of their pants would do well to get a more technical minded co-counsel or better yet, steer clear of this area of law altogether.  Careful drafting of pleadings and orders is a MUST because one small error can be devastating to your case.  And unlike divorce and other family law practice, there is no opportunity for a "re-do" if the lawyer screws up.  Double jepordy applies here.

Enforcing Child Support Part 1- Introduction

Today, we begin what will be a multi-part exploration of the law in Texas on child support enforcement.  With divorce statistics on the rise (albeit not as steep of a climb as in the past), and with more incidents of people have children out of wedlock, the topic of to what degree children continue to receive financial support is never more timely.  Unpaid child support due nationally totals $37.9 billion; with only 62.3% of that amount being paid on time.


The factors that impact whether child support is paid in a timely way are both familiar and surprising at the same time.   One factor impacting child support collection is income and education level.  According to national statistics, parents with a college degree were more likely to pay full payment of child support obligations than those without a bachelor's degree or higher.  Considering that in Texas, support is calculated at a set percentage based on net resources with a minimum and maximum income caps, this factor is somewhat surprising.  Also as the new generation of parents are one of the most over educated and under employed in history, the presence of a degree increases the probability of, but does not necessarily equate to higher income.

Another more surprising factor is the impact that ordered custody arrangements have on the payment of child support.  Statistics show that parents with joint custody pay child support on time more than parents who have sole managing conservatorship orders.  This supports what many people who work in family law have observed - parents are more likely to pay their child support when they have frequent contact with their children.  This is definitely something to think about when custody orders are initially put in place by individuals or by government agencies like the Attorney General's Office.  Child Support Orders are often put in place by default and basically, the custodial parent can dictate whatever visitation schedule they want in that situation.  It may be short-sighted in those situations to insist on an unreasonably restrictive visitation schedule that will discourage the non-custodial parent from exercising their visitation.  Aside from the presumption that in most cases (though not all) it is in the best interest of the children to have as much contact with both parents as possible, a custody order that fairly encourages non-custodial visits appears to also increase the odds of the non-custodial parent ultimately paying their child support in a timely manner.    

Source: Custodial Mothers and Fathers and Their Child Support  



   

What Is Contempt?

Without contempt, courts are like a tiger without teeth.

Without the ability to enforce it's orders, the Courts are like a tiger without teeth.  Therefore, courts have the power to hold individuals in contempt.  Although generally considered a non-criminal remedy (a civil remedy) but because a person could wind up in jail, it is basically criminal in nature and should be treated with that level of seriousness.  That is why many of the rights that we would normally think of being attached to a criminal proceeding (reading of rights, right to counsel, etc) may come into play.

Also, attorneys who attempt to get contempt for their clients must have specialized skill because pleadings and orders must be drafted with particular care.  An alleged contemptor may get off on a technicality because of sloppy drafting and because double jeopardy may attach, the careless lawyer may not have the opportunity to fix their error.

Contempt may be punished by a fine of not more tha $500 or confinement in the county jail for up to 6 months, or both.  That is for each violation (which in most family court proceedings there are usually multiple violations of support payments or instances of denied visitation.  In addition, contemptors can be placed on probation and under community supervision for a period not to exceed ten years. (Texas Family Code 157.211 and 157.212).

Contempt comes in two flavors.  Direct contempt is something that happened in front of the judge.  When Judge Judy gets pissed off at the sophomoric behavior of some idiot who can't get clue- that is direct contempt.   Direct contempt ensures that the court and the officers in it are treated with the respect and deference necessary for justice to happen. The other kind of contempt is called constructive contempt.  This is when, outside of court, a person does or fails to do something the court ordered him to do.  Essentially, the contemptor may be smiling to the judge's face, but then thumbing his nose at the court as soon as his back is towards the bench.  Constructive or indirect contempt is much more common and includes the engaging in conduct prohibited by the court such as violating a restraining order or failing to do something the court orders, such as paying child support.  Indirect contempt usually (but not always) requires a written order signed by the judge.

Mumbo-jumbo to know:

• direct contempt
• indirect contempt
• contemptor  

Sensitive Data In Filed Family Law Documents

Texas Rule of Civil Procedure 21c Privacy Protection for Filed Documents has had a substantial impact on family law cases.

A divorce with children could, and oftentimes will, have filings that include all of the types of sensitive data this rule addresses. Rule 21c became effective January 1, 2014, and it states:

(a) Sensitive Data Defined. 
Sensitive data consists of: (1) A driver’s license number, passport number, social security number, tax identification number, or similar government issued personal identification number; (2) a bank account number, credit card number, or other financial account number; and (3) a birth date, home address, and the name of any person who was a minor when the underlying suit was filed.

(b) Filing of Documents Containing Sensitive Data Prohibited. 
Unless the inclusion of sensitive data is specifically required by a statute, court rule, or administrative regulation, an electronic or paper document, except for wills and documents filed under seal, containing sensitive data may not be filed with a court unless the sensitive data is redacted.

(c) Redaction of Sensitive Data; Retention Requirement.
Sensitive data must be redacted by using the letter “X” in place of each omitted digit or character or by removing the sensitive data in a manner indicating that the data has been redacted. The filing party must retain an unredacted version of the filed document during the pendency of the case and any related appellate proceedings within six months of the date the judgment is signed.

(d) Notice to Clerk.
If a document must contain sensitive data, the filing party must notify the clerk by: (1) designating the document as containing sensitive data when the document is electronically filed; or (2) if the document is not electronically filed, by including on the upper left hand side of the first page the phrase: “NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA.”

(e) Non-Conforming Documents.
 The clerk may not refuse to file a document that contains sensitive data in violation of this rule. But the clerk may identify the error to be corrected and state a deadline for the party to resubmit the redacted, substituted document.

(f) Restrictions on Remote Access.
Documents that contain sensitive data in violation of this rule must not be posted on this rule. Texas Family Code Section 102.008 “Contents of Petition” subsection (a) requires that the petition and all other documents filed in all suits affecting the parent-child relationship, except suits for adoption, be entitled “In the interest of______________, a child.” Section 102.008 (b) requires that petitions include the name and birthdate of the child. If the child’s name must be in the title of all documents filed in a suit affecting the parent child relationship, and the child’s name is sensitive data, aren’t all filings going to include sensitive data? It is entirely possible that a Judge could reach that conclusion.

 Many attorneys use the child’s initials in place of the child’s full name in the style of all documents filed after the original petition. However, this would not comply with a strict interpretation of Texas Family Code Section 102.008 (a). It is best that you contact the court clerk to determine if the Judge in your case has a stance on this issue and if so, how they want you to style your filings. Texas Family Code Section 105.006 (a) lists the information that must be included in a final order in a suit affecting the parent child relationship, except for terminations and adoptions. This information is as follows:

(1) the social security number and driver’s license number of each party to the suit, including the child, except that the child’s social security number or driver’s license number is not required if the child has not been assigned a social security number or driver’s license number; and
(2) each party’s current residence address, mailing address, home telephone number, name of employer, address of employment, and work telephone number, except as provided by Subsection (c). This means that in all final orders in suits affecting the parent-child relationship, other than termination and adoptions, there will be numerous types of sensitive data.

 Many attorneys will redact social security numbers, and driver’s license numbers and leave only the last three to four digits in the final order. A strict interpretation of Texas Family Code Section 105.006 (a) and Texas Rule of Civil Procedure 21c (b) is that the driver’s license numbers and social security numbers are required by statute and therefore should not be redacted. Again, the best way to determine how to address this situation is by calling the court clerk to determine the court’s preference. 

India Considers Challenge to Muslim Divorce

India’s Supreme Court is considering petitions that challenge Muslim laws governing marriage on the grounds that they discriminate against women, a charged issue that risks angering the country’s orthodox Muslims.

A panel headed by the chief justice that is hearing the petitions directed the government this week to release an official 2015 report that looks at the impact of some of India’s religion-specific laws on women’s rights and recommends legal reform.

Among the petitioners calling for change is Shayara Bano, a Muslim woman whose husband, after 13 years of marriage, divorced her by triple talaq, a practice that allows Muslim men in India to leave their wives unilaterally and often instantaneously by saying “talaq,” meaning divorce, three times. Other similar petitions were put together by the court and are being heard at the same time.The next hearing in the case is expected in May.

The Indian constitution protects gender equality, but on issues of marriage, divorce and inheritance, different religious communities are governed by their own so-called personal laws. Whether a person is subject to those laws is usually determined by their religion at birth.

Muslim clerics and scholars have rebuffed demands for unifying personal laws into a common civil code for all Indian citizens—advocated by Prime Minister Narendra Modi’s Bharatiya Janata Party—rejecting what they call attempts to interfere with their religious practices in Hindu-majority India. There are more than 170 million Muslims in the country out of a 1.2 billion population.

Muslim women’s rights groups argue that the practice of triple talaq misinterprets the Quran and is protected by orthodox Muslim men to perpetuate patriarchy. In her petition, Ms. Bano asks the court to declare it illegal as it “practically treats women like chattel,” infringes their “basic right to live with dignity” and violates their fundamental rights to equality and life guaranteed under the constitution.

Source: The Wall Street Journal

Mississippi Ban on Gay Adoption Declared Void

A federal judge in Mississippi ordered the state to drop its ban on adoptions by same-sex married couples, saying Wednesday that it doesn’t pass muster under the Supreme Court’s 2015 landmark marriage ruling.

The law was said to be the last of its kind in the U.S. But efforts to skirt the full implementation of the Supreme Court’s decision in Obergefell v. Hodges using laws described as “religious freedom acts” remain alive and well in a number of Republican-led states along with measures permitting discrimination against transgender people.

Indeed, the Mississippi legislature has just approved a bill that says, among other things, public employees, businesses, and social workers cannot be punished for denying services based on the belief that marriage is strictly between a man and a woman and that the state government can’t prevent clerks from refusing to license a same-sex marriage. The measure is currently in a conference committee to work out differences between state House and Senate versions.

The state’s prohibition on adoption by same-sex couples was enacted in 2000, as state and federal courts began the process of legalizing same-sex marriage, and reads, simply, “Adoption by couples of the same gender is prohibited.”

It was challenged by four lesbian couples wishing to adopt children either privately or through the state’s foster care system.

Judge Daniel P. Jordan III, of the U.S. District Court for the Southern District of Mississippi, called the state’s defense of the law “tepid,” based mostly on issues of standing, and which agency or part of government could or could not be sued.

While Jordan said the Supreme Court’s Obergefell decision did not specifically involve adoptions, “the Court extended its holding to marriage related benefits—which includes the right to adopt. And it did so despite those who urged restraint while marriage-related-benefits cases worked their way through the lower courts.” Jordan cited this passage of the Obergefellopinion, written by Justice Anthony Kennedy: “Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.”