Jurisdiction in Family Law: Specialized Family Courts

 Jurisdiction is the most important initial quesiton a practitioner of family law can ask.  Jurisdiction consists of two things: (1) the court's power, conferred by constitutional or statutory authority, to hear a cause alleged in the petition, and (2) the court's power to award the relief requested. 

In the family law context, a court can only hear a suit affecting children if it has been granted jurisdiction in "family-law matters" which include adoptions, divorces, annulments, child welfare, custody, support issues and relationships of the wife and husband and children.

In Texas, district courts are the primary trial courts and all district courts have family law jurisdiction.  However, the Texas Constitution gives the legislature the power to create specialized "family district courts" to help handle the huge caseload in certain counties.  Follows is a list of counties that have family law district courts:

• Brazoria
• Dallas
• El Paso
• Fort Bend
• Galveston
• Gregg
• Harris
• Hutchinson
• Jefferson
• Midland
• Nueces
• Potter
• Smith
• Tarrant
• Taylor
• Wharton

These courts have the same jurisdiction as general district courts, but they have primary responsiblity for handling family-law matters, including child support.  This does not prevent a general district court from hearing a family law case however.  But family cases in counties that have these specialized courts will almost always be filed in those courts.

Today I am a Man: Removal of Disabilities of a Minor

 A minor under most Texas law is anyone who is either under the age of 18 years, or over 18 with certain conditions and under certain circumstances (for example 18 but still enrolled in high school).   However, in law, we see many occasions when a child is treated as an adult- most notably in the criminal law context.

On rare occasions a sixteen or seventeen year old may desire to have some of the limitations we place on children removed ("disabilities of minority").  This can occur when a 16 or 17 year old is living on his or her own and is seeking to enter into a rental lease or perhaps seeks to purchase a car or other contractual relationship and cannot because those under 18 may not be legally bound to a contract.   Chapter 31 of the Texas Family Code provides an avenue for the removal of the minority status of an individual who is at least  16 years of age. 

The minor can file this suit in their own name and must show the court that they are living separate and apart from a parent, managing conservator or guardian and that they are self-supporting and managing their own financial affairs.

A complicating factor is that the parent, guardian or managing conservator must "verify" the petition.  It is unclear whether this means the petitioner must serve them formally with notice, or merely that they sign the petition with a notary. I think this is up to the judge what this means- so a practitioner would due well to inquire beforehand.  If the parent, guardian or managing conservator cannot be found, or is unavailable then the court may appoint an amicus or attorney ad litem to verify the petition.

Other states call this procedure "emancipated minor" proceedings.  If such a proceeding was obtained in another state, a minor moving to Texas may file a certified copy of the order int the deed records of any county in Texas.

Although the procedure is rather straight forward, most 16 or 17 year olds may need to seek the help of an attorney for this procedure.  This may not be financial feasible.  Remember too that the removal of disabilities of minor only applies to the ability to contract, to get the right to make one's own educational decisions, and the like.  It does not remove other restrictions such as the right to vote, no drinking etc.

It also should be noted that depending on what age the petition is sought, it may not make sense to file this petition.  It take many months to obtain a court date in some courts.  Obviously if the minor turns 18 before or very soon after a court date, the issue becomes moot.

SAVE Child Support Act Being Pushed

Recently, U.S. Senators Robert Menendez (D-NJ) and Chuck Grassley (R-IA) reintroduced Senate Bill 508, the Strengthen and Vitalize Enforcement of Child Support (SAVE Child Support) Act.

According to the senators' websites, the purpose of the legislation is to provide states with tools and procedures to help them collect child support from parents who are not complying with their payment court orders.

Specifically, the SAVE Child Support Act provides that every state, including Texas, will be able to access a nationwide child support lien registry. The purpose of the lien registry is to allow liens to be placed against property in the event that a person falls behind in child support payments. The lien registry will help states easily identify these liens and where they are located.

Along with the lien registry, this Act also enables states to intercept payments that are made to individuals other than the parent receiving child support, in order to satisfy delinquent child support orders. Moreover, the Act strengthens procedures which allow for the revocation of non-custodial parents' certain licenses, permits, and passports when these parents fail to completely abide by child support orders. This part of the Act will require increased coordination between various child support agencies and license-issuing agencies.

Moreover, the bill also clarifies existing state jurisdictional rules in order to facilitate states' efforts to collect any and all outstanding child support orders, as well as expedites procedures for redirecting child support payments if the child has relocated. Importantly, the bill also improves the ability of the courts to enforce outstanding child support orders.

Along with these important measures affecting state procedures, the proposed legislation also encourages and facilitates coordination among the multiple child support agencies and corrections facilities to assist in managing and collecting on child support orders.

Finally, the bill also helps safeguard non-custodial parents' visitation rights by requiring states to report on any plans to facilitate or improve access to and visitation of children by their custodial and non-custodial parents. It will also implement measures to protect vulnerable families from any harassing or deceptive practices employed by private child support collection agencies. To do so, the bill extends existing federal debt protection laws to include these collection agencies.

This Act is introduced to address the nearly 11.5 million cases of delinquent payments of child support. This statistic comes from the Health and Human Services Office of Child Support Enforcement FY 2011 Preliminary Report. According to this same report, the amount of child support that was due in FY 2009 totaled more than $33 billion and only 62% of that amount was actually collected. To put that in context, over $111 billion in child support was due for all previous fiscal years, but less than $8 billion were collected and distributed in 2011.

Divorce Signs In Tax Preparation

My husband and I have been have been fighting over finances, the kids, his job..just about everything lately. But one thing I could always rely on about him over the last twelve years is that he has always handled all the financial stuff, and he always filed our taxes on time. But this year is different. It is almost the end of April and he still hasn’t filed our taxes yet. He said he was just too busy this year. He said he filed an extension, that he’ll get to it when he can, and that I should stop nagging him about it. But I’m worried. Could I get in trouble with the IRS if he doesn’t pay our taxes?

Yes, you definitely can, and getting in trouble with the IRS may not be the only thing you have to worry about.

Everyone knows (or should know) that federal tax returns must be filed by April 15 of each year. Extensions can be filed, but asking for more time without a good reason is generally a bad move. Soon you’ll find yourself filing another extension and then another. Over the period of borrowed time, records can be lost. You will have to pay late filing penalities and compounding interest. Most tax experts recommend that you file your taxes on time unless there is a real reason they can’t be done by the deadline.

You probably have been filing “married filing jointly”, as most married people do. However, just because your husband is the one who has been filing the taxes doesn’t mean you can’t get in trouble. Filing jointly creates “co-liability” for the tax. This means that the IRS can go after either spouse for the entire tax amount as well as penalties and interest. And it does not matter if your husband is the major, or only, wage earner. You are still liable for the entire tax burden if you file jointly.

It seems odd that for the last twelve years your husband has managed to file the taxes on time and now suddenly he cannot. Unless he has a good reason which he can clearly explain to you for filing the extention, you should be skeptical. If your marriage is already rocky, procrastinating in filing the tax return may be a red flag that indicates your husband is thinking seriously about his “marriage exit strategy”- divorce. In skirting the tax preparation responsibility he may be buying time so he can put himself in the best financial position, or he may be seeking to get you into trouble with the IRS. He also may be trying to back you into a corner with a deadline so that you must quickly sign the return without reading it. A spouse plotting their strategy for divorce will make all kinds of excuses for their suddenly odd behavior. They will become authorative and tell you to “mind your own business”. But this IS your business because you are jointly liable.

Here are some other tax related red flags that your spouse may be planning a divorce:

Underwithholding. If he is employed, try to get a copy of his paycheck stub and look at how much he told his employer to withhold for taxes. The lowest effective federal tax rate is 10%, so if your spouse is withholding much less than 10% this is a good indication that he is intentionally underwithholding. This may be so he can keep more income from the paycheck for himself and share less with you. He may count on being in the middle of a divorce by this time next year and not worry about the large tax bill because it will be a joint liability and a community debt.

No Prepayments. If your spouse is self-employed, or if there is income not subject to withholding such as interest and dividend income, the law is that he must make prepayments of estimated taxes. If he normally pays theses but lately skips his estimated tax prepayments, this may indicate he is hoarding cash in anticipation of divorce.

Reporting Less Income than Earned. If the return reflects a sudden and unexplained dip in your spouse’s reported income from prior years, be suspicious. Your spouse may be making more and keeping it from you and the IRS. A substantial underreporting of income (more than 25%) could trigger an investigation of the last six years of tax returns. Again, if you have been filing jointly, you may be individually liable for back taxes, penalties, fees and interest- even if your husband is the one who dishonestly reported.

Making Overblown Deductions. If your spouse is suddenly trying to take a large number of exaggerated deductions that are not legitimate, he may be trying to underpay his taxes. If he makes a substantial understatement of his tax, you may be liable for the resulting penalties and interest if and when the IRS catches it.

Intercepting the Refund. A more simple trick your spouse may try is to beat you to the mailbox and grab the refund check before you do. If you forget about the check he may sign your name on it and deposit the entire amount into his private account. Or he may be more subtle and deposit only a portion of the check into your joint account.

Just having any one of these red flags does not prove that your husband is thinking about divorce or that he is plotting against you in any way. You have to take the whole situation into account. Unfortunately, most people can’t spot these tax related warning signs just by looking at their tax return. That is why if you suspect your husband is cheating on your taxes and/or if he is thinking about a divorce, you should go to a tax professional and also to a divorce lawyer. A tax professional such as a Certified Public Accountant will be able to tell you if your taxes were filed correctly and what you can do to protect yourself from getting in trouble with the IRS. A divorce attorney will tell you what your legal rights regarding divorce are, and what the process will involve. You do not have to tell anyone that you have seen these professionals, but you have to protect your interests if a divorce and/or a tax audit is coming, and you have to have the knowledge these professionals can provide to make the right decisions.

For more FREE INFORMATION or to contact a family law attorney about a family law matter in Harris or Galveston counties, Texas, call toll free: 1-800-2MY-DIVORCE. (For cases in Harris or Galveston county only).

1-800-2MY-DIVORCE

A new 800 number is available to help people with their family law case.

For more FREE INFORMATION or to contact a family law attorney about a family law matter in Harris or Galveston counties, Texas, call toll free: 1-800-2MY-DIVORCE. (For cases in Harris or Galveston county only).

Hiring a Family Law Attorney: Retainers

Attorneys in Texas family law cases usually take a retainer prior to agreeing to do any work on a case. A retainer is like a security deposit and is financial protection for the lawyer. By paying part of the fees up front, it ensures the lawyer that their work will be paid for.

It usually works that a lawyer will take a retainer of some amount and then bill their hourly fees as they go against that amount. In Texas, it is common for retainers to be $2,500 to up to $25,000 in some very complex cases.

Unfortunately in the volatile world of family law, clients aren't always willing to pay their bills if their backs are against the financial wall. They begin to think that the lawyer should share in their bad decisions or bad luck regarding their family law matter. This is why for financial survival, most attorneys have made the decision to ask for up front retainers. As the hourly fees are drawn against the retainer, the clients will have to "replenish" the retainer after it drops below an agreed minimum amount.

Clients should receive regular bills so they can see what activity is going on in their case and how much retainer has been used. It is common practice that at the end of the case, and amount remaining in the retainer is refunded back to the client.

On the note of money, if you are on an hourly contract with an attorney (I'm not talking about flat rates- which are rare in family law) beware of attorneys who try to get you to agree to any non-refundable retainer amounts. They may try to convince you that this amount is for the "privilege" of hiring their wonderful firm. These egocentric lawyers, usually from the biggest firms with the fanciest offices, (read: most overhead) think there can charge you simply for the honor of paying them their hourly fees (which are probably grossly exorbitant). Such "nonrefundable retainers" have been found to be a breach of attorney ethics unless they are very clearly spelled out. Even then, they are looked on with disfavor by the majority of honest attorneys. You should pay for the work done on your case. PERIOD. You should not pay a penny less, but you also should not pay a penny more either.

Divorce Can Crunch Your Credit

If you're planning to file for divorce this year or are already splitting your assets with your soon-to-be ex-spouse, your credit is likely to take a hit.

Many people don't realize that lenders do not honor court decrees that assign payment responsibilities for joint loans. The mistaken assumption that you're off the hook for financial obligations can result in a series of missed payments that may trash your credit score for years.

This needn't happen if you safeguard your credit before you file for divorce. Consider these tips from John Ulzheimer, author of "You're Nothing but a Number" and an expert at Credit.com, a consumer personal finance site.

If you have joint accounts with your spouse, do your best to turn them into individual accounts so that it will be easier for the divorce court to split up your financial responsibilities. To do that you will need your spouse's permission, which means you're going to have to let the cat out of the bag. But taking these steps now can save you years of credit woes later.

Begin by converting your credit card accounts. People most often miss payments on this type of debt, rather than the loans that keep a roof over their heads and wheels under their feet.
Next, work on refinancing your mortgage and your car loan. Granted, this is going to be more difficult, because the bank will want just one person to accept the loan in his or her name -
which may not be possible if that person's salary isn't enough to qualify for the loan. In cases like these, it might be easier to sell the car or the house, split the money and move on. That way, you're guaranteed not to have credit damages caused by a vengeful ex-spouse.

"Remember that when you're getting divorced from your spouse, you're also divorcing yourself from emotional attachment to assets," Ulzheimer said.

You would also be wise to opt out of receiving pre-screened offers for credit or insurance. A spiteful ex-wife or ex-husband may be tempted to apply for a loan in your name just to ruin your credit. Go to the consumer credit reporting industry's official Web site for details: www.optoutprescreen.com/.

Texas Stalking Law

Occasionally, someone involved in a Texas Divorce or other Texas Family Law process has issues that require criminal law enforcement. A spouse, a former spouse, or father or mother may be stalked by the opposing party in Texas Family Law case.

A stalker is someone who tries to control his or her victim through behavior or threats intended to intimidate and terrify. A stalker can be an unknown person, an acquaintance or a former intimate partner. A stalker's state of mind can range from obsessive love to obsessive hatred. A stalker may follow a victim off an on for a period of days, weeks or even years. A stalking victim feels reasonable fear of damage to property, bodily injury or death to self, family or household member.

Texas Stalking Law: Section 42.072 Penal Code
Penalty: 3rd Degree Felony
Punishment: Two to 10 years in prison and fine up to $10,000; if there is a prior conviction for stalking, the penalty is upgraded to a 2nd degree felony and two to 20 years in prison and a possible fine of up to $10,000.

The stalker has the intent or knowledge that his/her actions will instill fear of death or bodily injury to the victim or a member of the victim's family or household. Threats can be explicit (e.g.- stating that he or she is going to kill the victim) or implied (e.g.- veiled threats, hurting a family pet). Threats have to be aimed at a specific person; they cannot be general threats. Threats may be conveyed by the stalker or by someone acting on behalf of the stalker.

To be convicted, the stalking conduct has to occur on more than one occasion and be directed toward the victim and/or the victim's family or household members. The act may include threatening contact by mail or phone or causing damage to the victim's property.

If you think that you are being stalked:

• Notify the local law enforcement and prosecutor's offices. All stalking incidents should be immediately reported to the police. Request that each incident be documented. Request a copy of the report from your local law enforcement agency. Give police any written correspondence from the stalker.

• If you are involved in a divorce, or case involving a child, and are being stalked, call an experienced Texas Family Law Attorney about obtaining a protective order. If you are related to the stalker by blood or marriage, if you ever lived together, if you have a child in common, or if you have or used to have a relationship of a romantic or intimate nature with the offender, you should get a protective order.

• Keep a diary. Obtain names and addresses of witnesses. Complete records are essential to obtaining a protective order and successful prosecution in stalking cases. Write a description of each incident.

• Record telephone conversations. Tell the stalker to stop calling and hang up. Screen your calls. Write down the time and date the stalker calls. Keep recorded messages and give them to law enforcement and your attorney.

• Keep all correspondence, including e-mails. Make a copy of anything you receive from the stalker. If it is a letter, touch it as little as possible and place it in a plastic bag will preserve fingerprints.

• Tell everyone. Give friends, co-workers and neighbors a description of the stalker. Ask them to document each time they see the stalker.

Remember that stalking is a crime in Texas. Do not dismiss any threat, whether written or verbal. Call the police and consult a lawyer.

Collecting Texas Child Support Years Later

Many parents in arrears for child support wrongly believe that their obligation to repay their debt ends once the child turns 18. However, some custodial parents are turning to private child support collection agencies to recoup back payments that can be decades old. In the case of Lina and Sam Bragg, divorced since 1976, one collection agency is seeking to garnish payments from Mr. Bragg’s Social Security to recover more $49,000 in unpaid child support. Shern-Min Chow, KVUE-TV 11/08/2007
Read Article: KVUE-TV

Harris County To Build New Family Law Center

Harris County voters yesterday approved a $70 million dollar bond to construct a new family law center for Harris County, Texas. The facility will be located in the downtown Houston court complex.

The bond issue passed by a very narrow margin. 50.6% for and 49.4% against.

According to Family District Judge Bonnie Hellums, the building might be open in January 2011.
The new building will be built on the block north of the present one. It will require razing the "Coffee Pot" building which Harris County vacated, and also the teardown of the Lomas & Nettleston parking garage.


The building will be a "one stop shop" for most all family law services. Currently many of the services are spread across downtown. The building will house Family Law Intake, Children's Protective Services, the Domestic Relations Office, the Attorney General, and the Houston Bar Association's Volunteer Lawyer Program.

There will be rooms for children to give videotaped testimony via closed circuited television.

With one floor left as a shell, the building should be adequate for the county's family law needs for 15-20 years, Judge Hellums said. She noted the huge caseload carried by the Harris County Family District Courts and predicted it will only increase.

The volatile nature of many family law cases is reflected in safety plans for the new building. Today, to pursue a complaint, Houston area domestic violence victims must go to several agencies in different offices, often by bus, Judge Hellums said. The new building will have offices for assistant district attorneys, law enforcement officers, doctors and the Houston Area Women's Center.

When protective orders are being argued and negotiated, there will be separate rooms for the litigants, which should reduce tensions. There will be rooms for supervised visitation and monitoring exchanges between custodial and non-custodial parents. Judges will have secure parking in a level below the building reported Judge Hellums.

The New Harris County Family Law Center will also have a drug lab. Litigants suspected of abusing drugs-an issue in many cases- are currently sent to a lab three blocks away. To avoid the drug test, some litigants claim to get lost and arrive shaved (to avoid giving hair follicle samples). This possibility will be eliminated.

Judge Hellums is particularly interested in ensuring there is a designated Family Drug Court, which she currently presides over.

For more information about the new Harris County Family Law Center, go to http://www.hcfamiliesfirst.org/

Sources: Houston Chronicle; Hearsay (Harris County District Clerk Publication).

New Family Law Services Center on Ballot

On November 6, proposition 5 will be a bond issue on the Harris County Ballot.

The $70 million bond would be for ethe construction of a new, comprehensive Family Services Center. Today, Harris County families must have their family law matters taken care of in an overcroweded and outdated (shagadelic seventies) building in downtown Houston where 22 famil law judges, associate judges and masters manage the fastest grwowing and most complex docket in the county.

The proposed Family Services Center would provide Harris County families with a safe environment where family law and similar services would be provided. The new building would include not only vastly improved and updated famil law courts, bu also facilities fo rthe many support services needed by county residents.

For more information on Proposition 5, visit the Harris County Families First Web site, www.hcfamiliesfirst.org. Source: Houston Bar Bulletin.
"A trainwreck" can legitimately be
used to describe the current facilities
for Harris County family courts.

Cheaters Pay The Toll

Here is a new way to catch a cheating spouse: toll booth records.

According to the Associated Press, electronic toll collection systems are emerging as a powerful means of proving infidelity. Agencies in seven of the twelve states surveyed indicated that they would provide electronic toll information in response to court orders in criminal and civil cases, including divorces. Even if the state agency refuses to provide the information, it can frequently be obtained from the other spouse through the normal discovery process.

Texas is not among the states that use “EZ Pass” system, but attorneys can try to subpoena the records of the Texas Department of Transportation to the Electronic toll collection records (Texas E-Pass) kept by the department.

Source: “Toll Records Trip Up Philanderers” by Chris Newmarker, published at Yahoo! News.

Important Texas Custody Cases- Long v. Long

Long v. Long, 144 SW 3d 64 (Tex. App- El Paso, 2004, no pet.)

Holding: Standards of review, best interest factors in conservatorship proceedings

Issue: Whether court abused its discretion by modifying the divorce decree and awarding father the exclusive right to determine the primary residence of the children.

Facts: Mother and Father were appointed joint managing conservators (JMC) of their two daughters in a divorce decree that was signed on June 2, 2000, with mother having the right to determine domicile. One August 31, 2001, father filed a petition seeking modification, asking that he be awarded the exlusive right to establish the primary residence of the children, or in the alternative, sole managing conservatorship (SMC).

The trial court found that modification was in the best interest of the girls and continued the parties' JMC. However, father was awarded the exclusive right to establish the primary residence of the girls without regard to geographic locatin. Mother filed a motion for new trial which was denied by the trial court, and subsequently filed a notice of appeal.

Discussion: Once it has been determined that the abuse-of-discretion standard applies, an appellate court engages in a two-pronged inquiry: (1) whether the trial court had suffricient information on which to exercise its discretion; and (2) whether the trial court erred in its application of discretion..the traditional sufficiency review comes into play with regard to the first question; however the inquiry does not end there. The appellate court then proceeds to determine whether, based on the elicited evidence, the trial court made a reasonable decision..stated inversely, the appellate court must conclude the trial court's decision was neither arbitrary nor unreasonable.

Tax Case: Failure to File Form May Subvert Divorce Agreement Regarding Child Tax Deduction

In many Texas divorces and Texas Suits Affecting the Parent-Child Relationship, an agreement is made between the parties regarding which party will have the right to claim a child as a dependent for tax deduction purposes. To make this agreement enforceable, the parties should execute an IRS form 8332. This form allocates the tax dependency in one or more years regardless of who would normally be able to take the deduction. A recent U.S. Tax Court case shows that failure to file this IRS form with your taxes may mean the IRS will deny the deduction even if you have an agreement with your former spouse.

In Chamberlain v. Commissioner, the U.S. Tax Court ruled that the former husband (taxpayer) was not entitled to the dependent deduction for one of his children because he didn't attach a valid IRS Form 8332 (Release of Claim to Exemption for Child of Divorced or Separated Parents) to his 2003 Federal tax return (the child credit was also denied because it is premised on being entitled to the dependent deduction for the child). The Tax Court concluded that the attachment of a Post-It note referencing the initial (1995) Form 8332 didn't satisfy the statutory requirement of attaching a valid written declaration.

The taxpayer's former wife executed a Form 8332 in which she relinquished the dependency deduction for one of their two children beginning in 1995 and for all future years. The taxpayer claimed that he attached the original Form 8332 to his 1995 return, but that a subsequent fire destroyed all of his copies. The IRS was unable to provide a copy because their 1995 tax return information had been destroyed (pursuant to IRS document destruction policies).

This result may seem harsh, but as the Court indicated, "Although we are sympathetic with [taxpayer's] plight, we are bound by the wording of the statute as enacted and accompanying regulations when consistent therewith. "

Source: Family Law Taxation

Separation and Child Custody in Texas Divorce Cases

In Texas divorce cases where there may be a custody battle, the parties need to be very cautious about moving out of the marital home.

Moving out of the family home without your children, even if temporarily, puts your chances of getting primary conservatorship at risk. This is because few Texas judges want to uproot children and move them to a different location if it can be avoided.

Parties should make formal arrangments with their spouses about what conditions for access and possession will be granted. Normally in Texas divorce cases, this means entering temporary orders with the Court prior to moving from the home.

Texas Child Support Amount Increased By New Law

The Texas Family Code sets a cap on amount of income the courts can base child support amounts on. For many years, the cap was set at $6,000 of the child support payer's net income. Beyond this amount, the person seeking child support had to prove that the child or children had special needs to justify a higher support amount.

Governor Perry recently signed House Bill 448 into law and raised the cap on net resources subject to the child support formula from $6,000 of monthly net resources to $7,500 of monthly net resources.

The act also ensures that increases for inflation will occur automatically. The law provides that the maximum dollar amount will be adjusted for inflation every six years. The Title IV-D agency shall compute the adjusted amount based on the percentage change during the preceding six-year period in the consumer price index, as rounded to the nearest $50 increment, and publish the adjusted amount in the Texas Register before September 1 of the year in which the adjustment takes effect.

The act also includes language with regard to taking expenses for health insurance coverage for the obligor's child into account in determining child support. If the obligor has more than one child covered under the same health insurance coverage, the court is directed to divide the total cost to the obligor for the insurance by the total number of minor dependents, including the child, covered under the plan.

HB 448 can be viewed at 80(R) HB 448 - Enrolled version - Bill Text

Psychological Evaluations in Texas Child Custody Cases

Occasionally, the Texas family law attorney will need to consider the use of psychological testing and assessment in child custody cases.

One of the first things a Texas family law attorney must do in reviewing a psychological test is to consider the credentials of the tester. Although many other persons may involve themselves in assessment type activity (counselors, therapists, gurus), by law the only people who can call what they do "psychological testing" are licensed psychologists and psychiatrists.

There are five primary sources of authority for psychological testing in Texas custody cases. these are:

(1) Ethical Principals of Psychologists and Code of Conduct;

(2) Standards for Educational and Psychological Testing;

(3) Specialty Guidelines for Forensic Psychologists;

(4) Guidelines for Child Custody Evaluations in Divorce Proceedings;

(5) Rights and Responsibilities of Test Takers: Guidelines and Expectations.

A Texas family law attorney should review the extent to which the psychologist followed these sources.

Recently there have been more and more criticisms of the use of psychological testing. Faced with increased use of Daubert challenges, the courts have begun to limit or even bar psychological testimony. Some judges even routinely deny any request for child custody evaluations being done in the first place. However, this Daubert age backlash to the former judicial practice of blindly following the recommendations of mental health professionals pushes the pendulum too far in the other direction. Psychological tests are still completely valid and useful in Texas custody evaluations as long as they are used contextually.

Texas Parenting Plan Law Amended

The 2005 law on Parenting Plans in Texas Family Law has recently changed in response to grumbling among Texas family law attorneys about some of the practical aspects of the law.

No longer any need to file a "temporary parenting plan".

Texas House Bill 555 (HB 555) eliminates the requirement that couples develop temporary parenting plans and prohibits a court from such a requirement by local rule.

The requirement of preparing a temporary parenting plan prior to a temporary order hearing, was widely ignored by attorneys and judges who saw writ ting out a detailed "proposed temporary parenting plan", as a waste of time and money. The bill also eliminates the possibility that the court adopt a parenting plan simply because the other side failed to file one.

Texas Family Code Sec. 153.602 will now read:
"A temporary order in a suit affecting the parent-child relationship rendered in accordance with Section 105.001 is not required to include a temporary parenting plan. The court may not require the submission of a temporary parenting plan in any case or by local rule or practice."

Mediation or other ADR No Longer Mandatory

H.B. 555 also eliminates the requirement that a parent must attend alternative dispute resolution to resolve any future disagreements about the parenting plan prior to being able to seek relief from the court. Many attorneys (including this author) believed that this requirement put an unnecessary hurtle for gaining access to court if a parent needed enforcement or modification. And although this does not reverse the general encouragement of the courts (and this author) for the use of ADR prior to resorting to litigation, it eliminates that the parties MUST attend ADR before getting access to the court.

ATTENTION ALL DRAFTERS OF TEXAS DIVORCE OR SAPCR ORDERS: HB 555 eliminates the requirement of the old 153.603 (a)(4) that a final parenting plan must "provide for a dispute resolution process or other voluntary dispute resolution procedures, before court action, unless precluded or limited by Section 153.0071."

The enrolled version of the law can be viewed by clicking here: "Enrolled Version of HB 555"

Dividing Marital Property In a Texas Divorce- Goodwill

Goodwill is the intangible, but valuable good reputation that a business builds up over the years. In a Texas divorce in which one of the community assets is a business or partnership, the value of the business goodwill should be considered as an asset that deserves consideration in the property division in the Texas divorce.

Goodwill in Texas is only considered an "asset" if it can be separated from a particular person. If the business is a solo practice such as the professional business of a doctor, lawyer or accountant, the goodwill must exist separate from the individual. Nail v. Nail, 486 SW2d 761.

In situations such as a law practice, the court will not recognize the existence of goodwill unless the person asserting the goodwill presents some evidence that it exists apart from the professional. Hirsh v. Hirsh 770 SW2d 924.

Texas courts have held that where one person does not do all the work themselves, a business could have goodwill apart from the person. Finch v. Finch 825 S.W. 2d 218.

Goodwill that exists separate and apart from a professional's personal skills, ability and and reputation is divisible on divorce. Rathmell v. Morrison, 732 SW2d 6.

An attorney trying to prove the existence of business goodwill in a Texas divorce has a difficult task, and will likely have to rely on the expert opinion of a professional business appraiser. And in most instances, there is no practical way to divide goodwill. Seeking an offset from other property is the viable solution. If no such property exists, a money judgement and.or lien against the some tangible asset may be the only other alternative.

Dividing Marital Property In a Texas Divorce- Club Memberships

Courts cannot divest a spouse from membership in an organization such as country clubs and other groups and award it to the other spouse. Cluck v. Cluck, 647 SW2d 338:

“Since the membership stock has a contingent redeemable value of $1,000.00, the trial court could and did take into consideration this as an asset of the community in dividing the community estate of the parties. However, we are of the opinion that the trial court had no authority to divest the appellee of membership in the club. We view the stock certificate as merely an indicia of the right to membership analogous to a membership card in any voluntary association, and personal only to the appellant. Courts have been reluctant to interfere with the internal management of a voluntary association.”

However, the courts can value the memberships and reapportion the division of the estate to take the value of memberships into account.