It's About Time: Enhancing Timely Relief in Divorce Litigation

As a Texas attorney with two decades of experience exclusively in family law, I am always on the lookout for things that can positively impact the lives of my clients as they go through
the painful process of divorce.  And it's not often that I can find positive impact from the actions of the Texas Legislature, but recently, the "Distinguished Gentlepersons" up in Austin got something right.  A small change to the Texas Family Code caught my attention, and I believe it will greatly improve the timely relief of temporary matters in divorce litigation. In this article, I will delve into the details of this new provision and its implications for couples navigating the challenging waters of divorce in Texas.

 

The New Provision:

 

With the passage of Texas House Bill 2671, beginning September 1, 2023, the Texas Family Code will now include § 105.001(a-1), which addresses Temporary Injunction and Other Temporary Orders. This newly added subsection offers a solution to a common problem faced by divorcing couples: the delay in obtaining temporary relief due to referrals to mediation.

 

Explaining the Change:

 

Before this change, when a court referred a divorce case to mediation and a motion for a temporary order was pending, the initial hearing on that motion could be postponed to a later date, leading to unnecessary delays in resolving urgent matters. However, the new provision brings an essential safeguard into play.

 

Under § 105.001(a-1), if the court, on its own motion, refers a suit for mediation where a motion for a temporary order is pending, the court cannot postpone the initial hearing on that motion beyond the 30th day after the original hearing date was set. This means that once a motion for temporary relief is filed, the court must address the matter and hold the initial hearing within 30 days.

 

Enhancing Timely Relief:

 

The implications of this change may not seem profound to most,  but I believe it will mean the world of difference to people who are suffering in untenable domestic situations that need quick relief . Divorce cases often involve pressing issues such as child custody, temporary support, and property matters. Couples require swift resolution to these matters to maintain stability during the divorce process. By mandating an initial hearing within 30 days of filing the motion, this new provision ensures that temporary matters are addressed promptly.

 

Moreover, the change promotes efficient case management and streamlines the divorce process for both parties and the court. Timely resolution of temporary matters can alleviate stress and uncertainty, allowing individuals to focus on moving forward with their lives.

 

The addition of 105.001(a-1)) to the Texas Family Code marks a small but significant step forward in enhancing timely relief of temporary matters in divorce litigation. As a family law attorney, I believe this change will have a positive impact on divorcing couples, offering them the assurance that urgent issues will be addressed promptly. Moreover, the provision reflects a commitment to efficient case management and the well-being of those navigating the complexities of divorce.

Divorce Pitfalls for Small Business Owners

 The prospect of getting a divorce can be daunting, and even more so if you own a small business. When a marriage ends and both parties own a business, it can be complicated to navigate the legal and financial aspects of a divorce. What are are the top considerations for small business owners facing divorce?  

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Whether you are considering filing for divorce, or your spouse has already initiated the divorce process, there’s important considerations when a small business is part of the equation.

If you're a business owner and one or both of you are seeking a divorce, there are some particular points of concern that you need to keep in mind. First and foremost is the value of the business itself. The court may order an appraisal of the business to determine what the fair market value is. This is so each party can receive an equitable share in the assets. If one of you was the sole owner of the business prior to marriage, the court may decide that ownership of the business isn’t subject to division but the increased value of the business is.

Another point to consider is how much of your time and resources the divorce process will take up. Divorce can impact how much time and attention you can put into your business, as well as how smoothly operations run while the divorce is underway. It’s important to make sure that both parties understand their respective roles in the business during the divorce proceedings. If one or both spouses are also employed by the business, those roles need to be specified in order to ensure that everyone remains in compliance with any court orders that may be issued.

If you are considering filing for divorce and are a small business owner, it’s important to seek professional counsel on how best to protect your rights and interests in the process.

Pets In a Texas Divorce

Is “Limited Scope” the Future of Legal Representation?

Over the last decade, the demand for legal representation, particularly in the area of family law has increased.  At the same time however, the costs to hire an attorney for full legal representation has increased as well.  Finding free or reduced fee legal services has been nearly impossible for many.  As profit margins have decreased for big law firms, their commitment to donating free services to people who cannot afford an attorney has wained.  In addition, there are many “middle class” individuals who do not qualify for public assistance or other help in obtaining a free lawyer (called “pro bono”).

With limited options become ever more limited, many people have resorted to trying to “do it themselves” and be their own lawyer (called acting “pro se”).  They know they must get out of a bad marriage or get court orders for their children.  In desperation, they may look for legal forms they find for free online.  However, many find that the old adage “you get what you pay for” holds especially true when it comes to legal services.   People without any formal legal training are often bewildered by the process and the complex maze of documents.  Forms are readily found online, but are they the right forms?  And if they, there is a good chance they are outdated and are no longer adequate (if they ever where) in court, or are not proper in their jurisdiction.  They become frustrated when the Courts will not (and cannot) provide them with answers to their legal matter.  Turning to nationwide paid services such as Legal Zoom who prepare forms is often a frustrating exercise and a waste of money.  There seems to be no good middle option for people who need just some assistance but cannot afford the $5K to $10K for initial retainers for full retainers, nor can they afford to send twice or three times that amount before their case is concluded when all aspects of their case is handled by an attorney.

Amidst this growing problem, a new breed of lawyer has emerged to answer the need.  The day may have arrived for the “Limited Scope” attorney to help people gain fair access to our justice system.

Limited scope legal services is a method of legal representation in which an attorney and client agree to limit the scope of the attorney’s involvement just to those specific areas in which the client needs the assistance of an experienced attorney.  Other aspects of the case are left to the client to save the client money and give them more control.

Limited Scope legal services are employed as an attempt to lower costs for the client by reducing the amount of time the attorney spends- and therefore the amount the attorney bills- on a legal matter.

Do you think “Limited Scope Representation” is right for you?  Find out the details of this unique legal alternative by getting our free infographic:  “Top Four Ways You Can Save THOUSANDS on Your Divorce.”  To order your free copy, visit us at to www.thepalmerlawfirm.com/top-four.html

If School Is Closed For Weeks or Months Due to the Coronavirus (COVID-19) Crisis, How Does That Affect My Custody Schedule?

In Texas, most possession schedules are organized around the school schedule of the child.  Spring break, teacher work days and other periods of changes of possession are often incorporated into the custody orders for children.  The order to either surrender or return on certain dates is determined by the school schedule of the child.  In most cases this means the published calendar of the school district in which the child is enrolled.  But with schools shut down for the Coronavirus Crisis for weeks and possibly months, how does that affect the possession times for the children?

The first step to answering this question is to look is the existing possession order you have.  The language of the order should be reviewed carefully to understand what it was intended to do in normal times.  Second, you need to see if there are any special clauses in the order that may cover special circumstances such as when the child needs to stay home because they are sick.

Assuming there are no special provisions covering emergency situations and the order is basically aligned with the Standard Possession Order, the general rule is that possession times, exchanges, and the surrender and return dates and times should continue to follow the school district calendar AS IF the child was still in school and the normal calendar was being followed.

There are two rationales for this.  Firstly, following the calendar AS IF the child was enrolled this is the standard practice that is followed for children who have not yet attained school age.  Standard possession times for children over 3 but who are not yet in school uniformly follow the dates and times of the school and district calendar for AS IF the child was attending school.  This gives certainty to order and avoids confusion.

Secondly, the courts in recent days have issued strongly worded standing orders to all attorneys and their clients that parents who had their children over the spring break must immediately return the children as if school had resumed on the normal day (March 16).  This is a very clear signal that the Court will insist that custody orders must continue to follow the language of the order and follow the published district and school calendars for the purposes of exchange even if the children are not actually following that schedule because of emergency changes related to the COVID-19 outbreak.

In fact the Galveston County family courts standing order issued on March 16, 2020 was particularly blunt when it declared:

“If your family has a COURT ORDER that provides spring break possession for the non-custodial parent, that non-custodial parent must return the children AS IF school resumed on Monday, March 16, 2020.  For Parents who have NOT returned the children by Monday, March 16, 2020: YOU MUST RETURN THE CHILDREN IMMEDIATELY OR YOU WILL BE FOUND IN CONTEMPT OF COURT AND WILL BE FINED AND SANCTIONED.”

So it is clear that if parties want to avoid trouble with the courts, they need to stick with the schedule AS IF school was going on normally.

However, parties may want to come up with a stop-gap agreement to address changes for the best interest of the child.  This is allowed as long as the parties agree.  Also it is still unclear how things will be handled if the school shut down continues into the summer possession time.

If you are stumped on what this schedule would look like or if you want to negotiate a new schedule with the other parent, this is were an attorney or even mediator can step in to help you.  In the end, parents must keep a cool head and either stick with the order they have or negotiate what is in the best interest of your children and makes most sense for everyone.

If you have any questions about how recent events may affect your custody order, please contact us at The Palmer Law Firm.  We practice in Harris and Galveston counties, Texas.  With our mediation experience we can help parties come to agreements that work.  With our litigation experience we can help you fight for the best options for your child.  We encourage you to schedule a free call with one of our family lawyers.  We have leveraged technology with our online client portal, electronic forms and e-signature document capacities to minimize your need to make trips from your home to advance your legal issue.  We also offer on-line virtual mediation session to help you come to an agreement, even when apart.  You can book your free Virtual Meeting by visiting our website at www.thepalmerlawfirm.com or calling us at 832-819-3529.

Child Custody and The COVID-19 Coronavirus Crisis

We are all in a very stressful and fearful time with the outbreak of the COVID-19 virus changing the way we live our lives.  Many people have been sent home from jobs or limited in interacting in large groups.  For our children, schools are closing and many normal extracurricular activities have suddenly stopped.  To stop the spread of this highly infectious disease, we are being told to practice “social distancing”- staying away from other people and especially larger groups.

But what about families with custody orders?  To date there has been no clear message about how families should address this, and for families who already find themselves in high conflict custody arrangements, the strain will be tremendous and the path confusing. Should periods of visitation with non-primary parents be discontinued along with other “social distancing”?  What will be the repercussions if I keep my child from the other parent and how can I avoid them?  Here are some clear answers to these questions:

1.  Don’t deny visitation to the other parent unless you have a very good reason.

If you are the primary caregiver and the other parent has periodic visitation, you may be tempted to deny the other parent their weekend visitation during this crisis out of general fear that your child may become infected at the other parent’s house.  Before you unilaterally disregard your custody order, you should consider very carefully whether you have any real reason to do so.  The consequences of violating the custody order may be very real and land you in real trouble with the courts.  Our Harris and Galveston County Judges take a dim view of people violating orders- even if the reasons are well intentioned.  Denying visits may result in severe consequences for you and may give cause for a change of primary custody to the other parent or even a jail sentence in some cases.

2.  Communicate and find common ground for decisions.

Before you decide on your own to deny visitation with the other parent, communicate with the other parent about your fears and try to come to an agreement about temporary modifications to the visitation schedule.  You may find they share the same fears about the child being in your home.  If your co-parenting has been high-conflict up to this point, however, you may find this very difficult.  But you must put your best effort forward. 

Even if you have had difficulty in communicating in the past, both parents should try to put that aside (at least until this crisis is passed).   One of the best ways to handle the situation is to adopt a business-like and professional attitude to deal with the issues at hand.  Try to be focused and avoid emotional reactions.  Tell the other parent exactly what you want to talk about and stick to that only.  If they try to bring up the past or get off topic remind them of the urgency and importance of coming to agreements on how to handle the visits during this crisis.  You both may have different viewpoints of what is the best action to take with regard to keeping your child healthy.  With so many conflicting messaging on social media and the mainstream news, it is not surprising you both would have different ideas.  The most important thing is to be consistent between the two parents.  This situation is like no other and was very likely not conceived of when you made your custody order.  You may be called upon to make decisions that are outside the order.   Try to find a neutral and reliable source for a tie-breaking resource if you both disagree on how to manage this crisis.  Try to agree on one source for recommendations for your child’s safety and agree that you will both use that source for co-parenting decisions that are not covered in your court order.  You may agree to follow the advice of the child’s pediatrician for guidance. This is especially important if your child is immunocompromised or has another underlying health condition.   Or you could both agree to follow the latest recommendations found on the CDC’s website or the Texas Health and Human Services.  Whatever source you decide on , it is important that you both avoid the added conflict and stress of disagreement and you should find as much common ground as possible.  One good start in finding common ground may be in that you both express your fears for your child and reaffirming that you each love your child and have their best interest at heart.

3.  Think of creative solutions.

What solutions could you come up with that would satisfy each of your concerns about infection and health vs. the legitimate right and need of the child having contact with both parents?  If infection is a legitimate concern such as if one parent has been exposed to an infected individual, is it possible to agree to temporarily have visits outdoors and agree to keep the recommended distance from the child- perhaps playing catch, kickball or similar activity?  This may sound outlandish in different times, but these are unusual circumstances.  Can the parent have Facetime (or increased facetime).  Can you agree that the other parent will have additional periods of time with the child to make up for time lost during this crisis?

4.  Get an agreement in writing.

Get the agreement in writing and make sure each parent has a signed copy.  Insist that each have it notarized if you feel this is necessary.   A signed agreement can be used in court to defend yourself if the other parent claims you have unilaterally violated the order.

5.  If you can’t come to an agreement, you must file a modification request with the Court.

If you legitimately believe that child is at increased risk of infection if they are allowed visits with the other parent and you can’t agree with the other parent on a modification of the custody arrangement, then you must consider filing a Motion to Modify the Parent-Child Relationship and request emergency temporary orders to discontinue the visits.  If you don’t do this, you run a high risk of being held in contempt of court for denying the other parent’s court appointed visitation.  You will also have to execute and attach a “significant impairment affidavit” that details why you believe physical contact with the other parent would endanger the child.  The standard on getting such emergency temporary orders however is very high.  General or undefined fears will not be sufficient.  You will have to have special compelling reasons to believe that visits with the other parent will significantly impair the child’s health.  Reasons that may be warranted, if proved, could be:

• ·        The other parent had close contact with someone diagnosed with COVID-19;
• ·        The other parent recently traveled to Italy or China
• ·        The other parent attended a high exposure situation such as the Biogen conference in Boston that led to a breakout among attendees
• ·        The other parent may have had contact with someone infected with COVID-19 AND, your child has a compromised immune system or other underlying health condition.

Agreements are like a vaccine against family conflict and are always the first and best line of defense against the harm that comes to children as a result of parent disputes.  However, if agreements are ineffective or unavailable, then it may be time to call an experienced family law attorney. 

If you have any questions, please contact us at The Palmer Law Firm.  We encourage you to schedule a free call with one of our family lawyers, or come see us in person.  We have leveraged technology with our online client portal, electronic forms and e-signature document capacities to minimize your need to make trips from your home to advance your legal issue.  If you do choose to visit us in person, you can rely on us for clean offices with restrooms and hand washing facilities and hand sanitizer.  We are here to help.  You can book your free appointment right from our Facebook page or call at 832-819-3529.

New Requirement for Summer Possession Notice

For all standard possession orders entered after September 1, 2019, a new requirement has been added for notice.

As normal, the non-managing conservator under the standard possession order will have a period of extended summer possession (30-42 days).  The managing conservator can request a period during that extended time when they can visit with the child.  However, the managing conservator must pick up the child(ren) from the possessory conservator and return the child to the possessory conservator.

Now under the new notice requirement of HB 553, the possessory conservator must now also give the managing conservator 15 days written notice of where they can pick up the child.  The new law says:

"153.312(C) Parents Who Reside 100 Miles or Less Apart-
(c) Notwithstanding Section 153.316, after receiving notice from the managing conservator under Subsection (b)(3) of this section designating the summer weekend during with the managing conservator is to have possession of the child, the possessory conservator, not later than the 15th day before the Friday that begins that designated weekend, must give the managing conservator written notice of the location at which the managing conservator is to pick up and return the child."

So for example, John and Mary are the parent of Joseph.  They live less than 100 miles apart. Mary is the "managing conservator" because Joseph lives primarily with her and John is the "possessory conservator" because he has regular visits with Joseph.  They have a standard possession order for visits which means that in addition to his weekend visits and certain holidays, John has a 30 day period during the summer break when Joseph will be with him.  Normally this will be the month of July (unless John picks a different 30 days and sends written notice to Mary by April 1).

Thirty consecutive days without seeing a parent is considered a long time by some and may be difficult for the child to go that long.  So under the Standard Possession Order, if Mary gives John written notice by April 15, she can pick up Joseph for one weekend- HOWEVER, it is SHE who must pick up AND drop off from John- not necessarily at his house, but where ever he happens to be.  What this means is that if Mary wants her summer weekend, she must be willing to travel wherever John is with Joseph over the summer to pick up Joseph  on Friday and drop off him off again on Sunday at that same location .  What if John and Joseph are on a camping trip at Yosimite?  Yup, that means Mary must pick up Joseph at Yosimite and return him to Yosimite if she wants her weekend visit.

Apparently there has been a change in the law to attempt to fix a problems that comes up with this.  What if John refuses to tell Mary where he will be during his 30 days with Joseph?  Former he was not required to.  If he doesn't however, that effectively prevents Mary from exercising her right to a weekend visit.  With this new law, the Texas Legislature has plugged this gap in the SPO order by adding a requirement of John that if Mary sends him timely written notice that she wants a weekend during John's extended summer visit with Joseph, then John must now give Mary 15 days written notice prior to Mary's weekend of where he intends to be with Joseph during that weekend.  This will allow Mary to make arrangements to pick up Joseph for her weekend.

I think the requirement is necessary to protect the managing conservator's right , but I also see how it puts a burden on the possessory conservator.  What if John and Joseph are just traveling in an RV and don't have a set agenda, and want to visit a different city than originally planned, or are delayed from arriving at a certain place due to weather or other event out of their control, or what if John just changes his mind about the trip?

Again, this new notice requirement applies only to orders rendered after September 1, 2019.  People with orders prior to that do not have the added notice requirement.

The Palmer Law Firm practices exclusively in the area of Family Law litigation in Harris and Galveston Counties, Texas.  If you have any questions about your possession order, or other issues regarding your legal rights and duties to minor children, in Harris or Galveston counties, Texas, please visit our website at www.thepalmerlawfirm.com or call us at 832-819-3529.

"We Can't Protect Your Heart, But We CAN Protect Your Rights."- THE PALMER LAW FIRM

Law Protects Privacy In Property Agreements

A new law passed in the last legislative session is aimed to protect people going through a Texas Divorce from having to revealing the sum and total and the division of their marital estate.

Prior to this new law, divorce decrees would be put on the public record and could be accessible to anyone interested in looking at them.  These divorce decrees necessarily listed in detail the assets and debts of the parties including even separate property not subject to division. This does not sit well with many who reasonably do not want to reveal the their entire financial to the world.   In the age of widescale privacy breaches and with the advent of electronic access to court files, there has been growing concern about the court system revealing the details of people's financial situation, debts and even details of nearly every possessions they own. 

Texas Family Code 7.006(b) Agreement Incident to Divorce or Annulment has been amended by HB 559 so that if the parties agree to a property division, they do not have to file the details of that agreement with the records of the court.  The parties can simply refer to the property agreement and "incorporate them" by simply referring to the agreement in the decree.

Obviously the details of the property division agreement should still be in writing and each party should have a true copy of the agreement in their possession in case they ever have to enforce the agreement in court at a later date.

The author's opinion is that there are much better methods to maintaining your privacy during and after your divorce.  However, this change is another tool that can be used.

If you have any other questions about privacy or other matters regarding your divorce, please visit our website at www.mydivorcefirm.com or call us at 832-819-3529.

"We can't Protect Your Heart, But We Can Protect Your Rights!"

New Study Says Children Suffer Mentally If No Contact With Father After Divorce

Children’s health could be badly affected once they are separated from the father after divorce, and they could suffer from depression. 

A recent study carried out by researchers at the University of Bergen, Norway, said difficulties between a father and child can negatively affect the child's health. Author Eivind Meland says that children could experience anxiety, depression, emotional difficulties or stress.

The study stressed that a child's health is strongly linked to his bond with the father.

"Those children that reported having lost contact or who find it difficult to talk with their father after divorce had most health complaints," said Meland. 

The study found that girls have more difficulties talking with their fathers, while the divorce did not seem to affect their communication with their mother.

The study included 1,225 teenagers who were followed up between 2011 and 2013. In 2011, 213 of these children had divorced parents. Two years later the number had increased to 270.

Top 4 Tricks to Make Halloween A Treat For Divorced or Separated Families

 Halloween may not be as meaningful as other seasonal holidays, but for divorced or separated parents and their children, feelings of “missing out” on fun times can be very challenging.

Whether Halloween for your family is usually filled with spooky traditions (boo!) or trick-or-treating around the neighborhood, no parent wants to miss out on their kids in cute costumes, or digging out a few of your favorite treats from your little one’s candy bag at the end of the night for yourself (It’s okay, we all do it!).

Parents can consider approaching Halloween without scares of fighting, “split-time” or alternating “every other year,” and make this year a treat for your children. But remember, it takes a commitment from both parents for these treats to work, and a promise that there will be no conflict or tension between parents around their kids during this special time.

Treat #1: Trick-or-Treat Together.  True—you may not be pulling the matching family costumes out of the closet—but still, children can benefit from seeing their parents come together to support them, even if it is just for one night of fun.  You can consider getting input from your children about the neighborhood they prefer to trick-or-treat, without asking them to choose. Once there is consensus, Mom and Dad can discuss and agree upon the place and time that the other parent will come by for shared parenting time during trick-or-treating. Ideally, you would tell the children together about your new Halloween plans and let them know that both of you are so excited to see them in their awesome costumes this year!

If trick-or-treating is not possible together at the same time, you can accomplish a similar goal of sharing the holiday by having Dad go out with the kids for an hour while Mom hands out candy, and then switch so that Mom goes with the kids while Dad hands out candy. It still shows parental cooperation, and this may also minimize any tension.

Remember, Halloween trick-or-treating is a brief, but memorable for your kids. As parents, you are capable of protecting this precious time by raising the level of cordiality, despite what may have been a rocky history. Let down your guard, keep it light, focus on your children and appreciate that years in costumes are numbered.  You can do it!

Treat #2: Other Halloween Events.  Trick-or-treating can be fun, but so can all the other spooky events going on around the Halloween season.  From haunted houses and hayrides or even school Halloween parties, there is something for everyone.  If being together for the holiday is just not possible, make it a point to celebrate in different ways with your children.  Maybe Mom goes trick-or-treating, but Dad gets to help at the school Halloween party.  That way, no one misses out on festivities. Here’s a healthy co-parenting Tip: Dad could reinforce Mom’s relationship with the children by letting them know how cool their costumes were by the photos that Mom sent him – and Mom can do the same by telling the kids how cool she think it is that Dad went to school and helped with the party. This positive reinforcement is the foundation of healthy co-parenting, and what kids need most emotionally and developmentally.

Treat #3: Make Halloween a Group Affair.  If the idea of trick or treating with your former spouse and children is simply too scary on Halloween, try relieving the pressure by making it a group event.  Make a plan with a group of other parents and children to go trick-or-treating all together and invite the other parent. This may reduce the awkwardness of not having others to socialize with, and your children will feel special to know they get to spend the holiday with not only both of their parents but also their friends.

Treat #4: Who Wants Even More Halloween? Candy for Everyone the Night Before!  Admittedly, not the healthiest approach from a nutritional standpoint, but if you and your spouse are not able to celebrate together, try alternating years where one parent has the children the night before Halloween and the other has time with them on Halloween night.  The night before Halloween can be just as fun! New traditions can be created. Maybe the night before you start a dress-up-and-go-to-the mall-tradition. Or a dress up and movie night. Maybe even a trick-or-treat the night before Halloween!

For many parents, some of these creative approaches to Halloween may be possible. These ideas may have also helped you think of your own fun ways to approach it too. And for others, these approaches may not be possible at all—just do the best you can given the circumstances.

In any event, be well, be safe, and Happy Halloween.

(Source: Mediate.com)

Why Do People Abuse?

Why Do People Abuse?

Domestic violence and abuse stem from a desire to gain and maintain power and control over an intimate partner. Abusive people believe they have the right to control and restrict their partners, and they may enjoy the feeling that exerting power gives them. They often believe that their own feelings and needs should be the priority in their relationships, so they use abusive tactics to dismantle equality and make their partners feel less valuable and deserving of respect in the relationship.

No matter why it happens, abuse is not okay and it’s never justified.

Abuse is a learned behavior. Sometimes people see it in their own families. Other times they learn it from friends or popular culture. However, abuse is a choice, and it’s not one that anyone has to make. Many people who experience or witness abuse growing up decide not to use those negative and hurtful ways of behaving in their own relationships. While outside forces such as drug or alcohol addiction can sometimes escalate abuse, it’s most important to recognize that these issues do not cause abuse.

Who Can Be in an Abusive Relationship?
Anyone can be abusive and anyone can be the victim of abuse. It happens regardless of gender, age, sexual orientation, race or economic background. If you are being abused by your partner, you may feel confused, afraid, angry and/or trapped. All of these emotions are normal responses to abuse. You might also blame yourself for what is happening. But, no matter what others might say, you are never responsible for your partner’s abusive actions. Being abusive is a choice. It’s a strategic behavior the abusive person uses to create their desired power dynamic. Regardless of the circumstances of the relationship or the pasts of either partner, no one ever deserves to be abused.

(Source: National Domestic Violence Hotline)

If you believe that you are a victim of abuse and need immediate help, call the National Domestic Violence Hotline at 1-800-787-3224. If you live in Harris or Galveston county and need help obtaining a protective order, divorce or any other family law help, you can get more information by calling The Palmer Law Firm at 832-819-3529.

The Duty to Protect Your Children

A parent has the right and the duty to protect his child and the child's future from harm. If you're involved in a custody dispute in Harris or Galveston County, Texas you must use the local family court system to assert this right and fulfill this obligation. A parent who becomes aware of dangerous behavior or damaging influences that threaten the children's physical safety or emotional well-being can ask the court to protect the children by removing them from the source of the immediate or potential danger. A court ordered award of sole custody or the severe restriction of visitation rights are the standard methods for ensuring children's safety. These actions may be taken if the court is shown clear and convincing evidence that the children are seriously endangered by parent’s lifestyle, or parents behavior, or the environment in which here it forces the child to live.

Documented cases of child abuse in any form meet the court systems serious endangerment standard. Physical, emotional, or sexual mistreatment of a child is child abuse.

"A parent who becomes aware of dangerous behavior or damaging influences ...can ask the court to protect the children by removing them from the source of the immediate or potential danger."

Physical abuse is any action that inflicts grave physical damage, even if the injury is temporary. Corporal punishment that causes bruising, bleeding, or burning is physical abuse. So is the denial of food, water, shelter, or medical treatment. Well the difference between acceptable physical discipline and physical abuse has never been defined in law, most courts and most parents know when the boundary between the two has been crossed.

Emotional abuse includes derogatory language and parental conduct calculated to destroy or seriously undermine a child's dignity and self-esteem. Constantly berating a child, humiliating a child in the presence of family, friends, or teachers, or isolating the child from the outside world for extended periods of time are examples of emotional abuse. Relentless insults or mockery are other forms of this destructive behavior.

The legal definition of sexual abuse encompasses virtually all actions involving a child intended to lead to the sexual gratification of either the child or a participating adult. While the most common forms of sexual abuse are outright sexual acts such as fondling, intercourse, oral copulation, this category of child abuse may also Include placing the child in sexually compromising positions, using the child to produce pornography, requiring the child to wear seductive clothing, and indulging in forms of physical discipline more commonly associated with adult sexuality than parental behavior. Whether the child consents to sexual activity or is forced to participate is irrelevant in determining if sexual mistreatment has occurred.

Neglect may also constitute serious endangerment courts have revoked custodial rights of parents who have left young children alone for hours or days parents whose primary meal planning function has been leaving paint chips within easy reach; Parents who fail to treat, or even notice, the serious physical or mental illnesses of a child ; And parents who have been unable or unwilling to provide a clean, warm room for their children to sleep in.

Elements of a custodial parent’s lifestyle may be judged dangerous, or potentially dangerous, to a child, even if the child is not directly involved in that lifestyle. And lifestyle that brings potentially harmful relationships into a child's life, for example can be considered to be dangerous enough to warrant removal of the child.

Source:  Father’s Rights by Jeffery M. Leving

Top Three Parent-Child Reunification Programs After Alienation

I am often called upon to fight for parents who have been alienated from the natural affections of their children by the other parent.  However, achieving court orders designed to end devastating patterns of parental alienation are only the beginning.  Although establishing or enforcing the right to access and possession of the children, to orders of counseling, and injunctions against a parent’s alienating behavior are necessary, they are not sufficient to getting the children and the alienated parent to interact in healthy, normal ways.  The psychological healing that must take place after the gavel falls is where the real hard work lies.  An attorney who deals in high conflict cases must understand and appreciate that they need to work in partnership with mental health professionals to completely resolve their client’s problems.  And in this sensitive area, the mental health prover must be have specialized expertise in parental alienation reunification.

Mental health professionals should be screened carefully.  The client should familiarize themselves with the professionals understanding of the various parental alienation treatment models that have developed over the last several years.  Here then, are three of the most prevalent family reunification intervention models:

1.       Warshak’s Family Bridges Model.

Perhaps the best- known of the emerging models, this program is an educative and experiential program focusing on multiple goals:  allowing the child to have a healthy relationship with both parents, removing the child from parental conflict, and encouraging child autonomy, multiple perspective-taking, and critical thinking.[1]

2.      Sullivan’s Overcoming Barriers Family Camp

This model combines psycho-educational and clinical intervention with an environment of milieu therapy.  It is aimed toward the development of an agreement regarding the sharing of parenting time, and a written aftercare planning.  It is this author’s opinion that this model is best utilized if a custody lawsuit is still pending, such as if temporary but not final orders are in place.  Because it’s need for both parents to be cooperative with making agreements, this model will not work well if the communication skills of the parents are below a certain minimum.[2]

3.      Friedlander and Walters’ Multimodal Family Intervention

The flexibility and adaptability of this model makes it a good choice for families in radical transition such as those who are currently involved with high conflict litigation.  This model provides differential interventions for situations of parental alignment, alienation, enmeshment and estrangement.[3]

Children and parents who have undergone forced separation are highly subject to post-traumatic distress and mental health professionals are absolutely essential to resuming a healthy relationship.  Research has shown that many alienated children can transform quickly from resisting the rejected parent to being able to receive and show love for that parent.  But to achieve that goal, the high conflict family law attorney and the alienated client must be clear on their goals during and after the custody case.  They must work together to select a mental health provider who not only has specialized expertise in parental alienation reunification, but offers a therapy model that is best suited to the individual needs of each family.

If you have any questions about your high conflict family law case, including parental alienation and family reunification issues, please visit us at www.thepalmerlawfirm.com. 

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[1] Baker, A. (2010).  “Adult recall of parental alienation in a community sample: Prevelance and association with psychological maltreatment.” Journal of Divorce and Remarriage, 51, 16-35.

[2] Sullivan, M.J. Et al (2010). “Overcoming Barriers Family Camp.” Family Court Review, 48 (1), 116-135.

[3] Friedlander, S. & Walters, M.G. (2010). “When a child rejects a parent: Tailoring the intervention to fit the problem.” Family Court Review, 48 (1), 98-111.

Taping Phone Calls, Recording Conversations and Taking Videos In Texas

One of the most pervasive questions I get is whether a party can record conversations either in person or on the phone.  Here is a short breakdown of applicable laws and cases in Texas.

The General Rule:
No matter the form of communication, the general rule is - assuming you aren't doing it for an illegal reason (harassment, etc.) if you are recording a communication between yourself and another person, you may be alright in recording it.  But if you secretly record a conversation between two other people you may get in big trouble. But are many exceptions and precautions to this general rule, so you must read on!

Summary of statute(s): An individual who is a party to either an in-person conversation or electronic communication, or who has the consent of one of the parties to the communication, can lawfully record it, unless the person is doing so for the purpose of committing a criminal or tortious act. A person also can lawfully record electronic communications that are readily accessible to the general public. Tex. Penal Code Ann. § 16.02 (Vernon 2011).

In-person conversations: The consent of at least one party to a conversation is required to record an “oral communication,” which is defined as “any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation.” Tex. Code Crim. Proc. Ann. art. 18.20. Thus, an ex-wife can record a conversation with her ex-husband at a Starbucks because she does not need consent to record conversations in public where there is no reasonable expectation of privacy.  However f she records the same conversation in the privacy of the home, where privacy is usually expected, then she should get the ex-spouses permission before recording or she may be breaking the law.

Electronic communications: Things can get VERY SERIOUS when recording electronic communications because Federal Wiretapping Laws may come into play.

The consent of at least one party to any telephone communication is required to record it. And because the provision of the statute dealing with wireless communications applies to “a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature,” consent likewise is required to disclose the contents of text messages sent between wireless devices. Id.

Hidden cameras: It is a felony to photograph or record a person without the person’s consent in a public place “with the intent to arouse or gratify the sexual desire of any person,” or in a bathroom or private dressing room “with the intent to invade the privacy of the person, or arouse or gratify the sexual desire of any person,” and to disclose any images obtained by these means. Tex. Penal Code Ann. § 21.15.

 The law, however, does not criminalize the use of recording devices for other purposes in areas to which the public has access or there is no reasonable expectation of privacy (i.e., filming conversations on public streets or a hotel lobby). The state’s highest court for criminal cases recently held that the statutory prohibition on photographing or videotaping a person in public without that person’s consent with the intent to arouse or gratify a sexual desire did not implicate, much less violate, a defendant’s free-speech rights because the statute was not a regulation of speech or the contents of a visual image but rather a regulation of the photographer’s or videographer’s intent in creating the image. Ex parte Nyabwa, 366 S.W.3d 710 (Tex. Crim. App. 2012).

Criminal penalties: Illegally recording an in-person conversation or electronic communication is a felony offense. Tex. Penal Code Ann. § 16.02.

Civil suits: Anyone whose wire, oral or electronic communication has been recorded or disclosed in violation of the law can bring a civil suit to recover $10,000 for each occurrence, actual damages in excess of $10,000, punitive damages, attorney’s fees and court costs. Under the statute, an aggrieved person also is entitled to an injunction prohibiting further unlawful interception or disclosure. Tex. Civ. Prac. & Rem. Code Ann. § 123.004.

The U.S. Court of Appeals in New Orleans (5th Cir.) held in 2000 that a television station and reporter who obtained illegally recorded tapes of telephone conversations, but who had not participated in the illegal recording, could nonetheless be held civilly liable under the federal and Texas wiretap statutes. Peavy v. WFAA-TV, Inc., 221 F.3d 158 (5th Cir. 2000). The case was appealed to the U.S. Supreme Court, along with two other cases raising similar issues. The Supreme Court refused to hear the Texas case but decided in one of the other cases, Bartnicki v. Vopper, 532 U.S. 514 (2001), that media defendants could not be held liable for publishing information of public concern that was obtained unlawfully by a source where the media were blameless in the illegal interception. Following the Bartnicki decision, the parties in the Peavy case settled out of court.

Disclosing recordings: Not only can you get in serious trouble for illegally recording a communication, if you then show the illegal recordings to anyone, you may be breaking additional laws. Trying to get your attorney to listen to, watch or hold on to such illegal recordings counts.  And then if your attorney tries to use illegal recordings in court, you BOTH can be violating the law.

Disclosing the contents of a wire, oral or electronic communication obtained through illegal recording is a felony. Tex. Penal Code Ann. § 16.02

The bottom line
The bottom line is that if you plan to record conversations without informing everyone that you are recording them, then make sure you follow these guidelines:

1.  There are no circumstances when you can record a person for an illegal purpose such as to harass them or for sexual gratification.
2.  At least one party to the conversations needs to be aware they are being recorded;
3.  Do not record someone when they should reasonably expect privacy (such as in their home);
4.  If you have an illegal recording in your possession, do not try to show it to anyone.

It is best to consult with a lawyer before attempting to do any sort of fact gathering on your case.

 If you have any further questions about taping phone calls, recording conversations or taking videos in relation to your family law case in Texas, please visit our website at www.thepalmerlawfirm.com.

Is Divorce a Violation of Your Religious Rights?

The ground breaking Supreme Court case of Obergefell v. Hodges, 135 S. Ct. 2584 (2015), which links the right to marriage as a personal right protected under the U.S. Constitution Has sent ripples throughout the family law world. The ramifications of this case will be talked about for many years to come and just what its limits are will be the topic a family law for just as long.

As lawyers , it's our job to take prior cases end apply them to the cases we have before us.   But sometimes this effort stretches thing a bit far.

This was the case of Lecuona versus. Lecuona , No. 03-17-00136-CV  out of Travis County.  The case was appealed all the way up to the U.S. Supreme Court, which refused to hear the case.

Shawn Hall Lecuona appealed from a final divorce decree that ended her marriage to Mark R. Lecuona.

Mark was the petitioner in the original case, and the sole ground for divorce on which he relied, and which the district court subsequently found, was the no-fault "insupportability" ground.  Insupportability is the basis of the “no-fault” divorce scheme in Texas and is by far the most common ground plead for in Texas divorces.

Shawn opposed the divorce on religious grounds and urged that Mark's suit, and particularly the no-fault "insupportability" standard on which he relied, unconstitutionally infringed her protected interests in what she viewed as an immutable "blood covenant" among the couple and the Almighty.

In her appeal, Shawn relied United States Supreme Court's decision Obergefell v. Hodges, which struck down state prohibitions against same-sex marriage as a violation of a "right to marry [that] is a fundamental right inherent in the liberty of the person" and protected by the Due Process and Equal Protection Clauses of the federal constitution. 

She said that Obergefell translates into a constitutional restriction against Mark using Texas's no-fault divorce law to end a marriage. She argued that for her professed religious reasons, she desires to stay married and because this is a sincerely held religious belief, Mark cannot divorce her.

So the question is:  Does the State of Texas violate a person’s First Amendment’s freedom of religion if it grants a divorce despite a person’s sincere religious belief that marriage is a sacred bond that cannot be broken.

No.

The Court held that Obergefell, whose analysis is rooted in the Supreme Court's view of personal liberty, does not, either directly or by implication recognize what would effectively be an affirmative constitutional right of one spouse to compel an unwilling other spouse to remain married.

The Court also points out that to NOT grant a divorce because of religious grounds of one spouse is a violation of the other spouse's liberty to NOT hold that believe that liberty and state  divorce laws.

The Court also pointed out Shawn's theory represents a significant and novel expansion of Obergefell .  People are trying to use Obergefell in many novel ways but the courts have stated that Obergefell is limited in it’s scope and doesn’t open wide a door to all kinds of novel claims that run contrary to firmly established principals.

For example in Pidgeon v. Turner, 538 S.W.3d 73, 86-87 (Tex. 2017) the Texas Supreme Court observed that Obergefell "did not address and resolve" the issue of "whether and the extent to which the Constitution requires states or cities to provide tax-funded benefits to same-sex couples" or invalidate Texas "Defense of Marriage" enactments, "'[w]hatever ramifications Obergefell may have for sexual relations beyond the approval of same-sex marriage are unstated at best . . .'" (quoting Coker v. Whittington, 858 F.3d 304, 307 (5th Cir. 2017), and citing other authorities recognizing Obergefell's limited scope)).

In general the lower courts must use what the higher courts have said at face value and not craft novel extensions to suit a desired outcome.

In  Ex parte Morales, 212 S.W.3d 483, 488 (Tex. App.—Austin 2006, pet. ref'd) in a novel constitutional challenge to Penal Code Section 21.12, through that "as an intermediate state appellate court, we must . . . defer to the authoritative pronouncements of higher courts that currently define the scope of the constitutional principles we apply here" (citing Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 564-65 (Tex. App.—Austin 2004, no pet.))).

Covenant marriages are a perennial bill offering in the Texas State legislature but year after year it fails to pass. Covenant marriages would make it more difficult for married couples to get a divorce by adding additional requirements , waiting time , fees or other impediments to getting a divorce. Only three states so far have adopted covenant marriages and the data shows that very few residents within those states elect to enter into "covenant marriages". One of the significant reasons why a covenant marriage statute would be difficult to pass is because of the controverting liberty issue cited in the Lecuona case. Specifically, that the state cannot impose religious conditions on a either spouse's right to be married or not to be married.

Another aspect to consider are  two new statutes under the Texas government code that went into effect in 2017. These statutes are commonly known as "anti-Sharia law" (although they were not specifically named as such to avoid then being challenged in court) also limits the ability of the State to put religious conditions on obtaining a divorce.

Sections § 22.0041 and § 22.022 of the Texas Government Code, states that “litigants in actions under the Family Code involving a marriage relationship… are protected against violations of constitutional rights and public policy in the application of foreign law.”

Foreign law as the proponents of these statutes have attempted to make sure do not apply in Texas courts was the religious based domestic laws of Muslim countries or Sharia law. Could these new statutes be used to further prevent religious conditions being imposed I'm getting a divorce? I think that is interesting food for thought.