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.

Getting Married In Nepal on Valentine's Day

On Valentine's Day, I got a call in my office that really touched my romantic heart.

Its a classic story.  Boy meets Girl, Boy and Girl fall in love and want to marry, Boy and Girl get bogged down with legal red tape. 

Apparently this Texas resident had fallen in love and he was calling me all the way from Kathmandu to ask me how he could get married to his Nepali sweetheart . Awww!


I had to admit to him that my knowledge of Nepali marriage law was a little rusty.  But here is what I found:

The Texas Resident should obtain the following:

• a copy of his valid passport with his Nepali visa;
• Complete an "Unmarried Certificate" or a "No Objection Letter" from the U.S. embassy in Kathmandu.  You have to make an appointment online for this.
• a passport sized photo of yourself;
• proof that you have stayed at least 15 days in the district in Nepal where you want to get married.  This can be in the form of:
• a letter from the hotel that the person is staying in the hotel for that period;
• a letter from the municipality that you are living there

For the Nepalese Girl should obtain the following:

• a recommendation form from the Municipality she lives in that she is unmarried;
• a photo attached to the form (in what size the form requires);
• an Original Citizenship Certificate

In addition the couple must:

• proof that both have obtained the minimum age in accordance with the local law or written consent of the guardian
• have two witnesses present for each of them

Naturally none of this addresses the inevitable problems of visas and immigration but it is a start.

I wish this young couple lots of luck and love.

Hey Cupid:  you owe me one!

Six Factors Texas Family Courts Should Consider When Relocating A Child

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

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

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

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

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

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

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

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

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

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

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

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

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

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

           

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

           

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

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

Other Possible Factors

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Liens and Forclosures: An Underutilized Child Support Enforcement Tool?

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

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

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

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

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

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

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

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

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

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

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

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

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

Probably not.

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

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

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

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

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