Monthly Archives: July 2012

What does “full custody” of a child mean under Texas law?

All too often, people throw around phrases about child custody and mean very different things by those phrases.

“I want full custody of my child.”

What, exactly, does that mean?  Fortunately, in Texas child custody disputes, we have much more precise language than simply “full custody” or “joint custody”.

For starters, we have to make a distinction between two concepts:  conservatorship and possession.

Conservatorship refers to the rights of one person to make decisions on behalf of another due to a legal incapacity.  Under Texas law, when we speak of conservatorship, we are usually referring to the right of an adult (the conservator) to make decisions on behalf of a child.  Children, of course, do not have the right to legally make decisions on their own behalf until they reach the age of majority or are otherwise emancipated.  By default, parents have the right to act as conservators for their children.  What happens, however, when those parents split up or divorce?

Generally, under Texas law, it is presumed to be in a child’s best interests that parents of that child be named Joint Managing Conservators.  In short, this means that the parents, to some degree, share in the responsibility of making decisions on behalf of their children for matters such as the education, medical care and management of the child’s finances.  The vast majority of child custody orders name the parents as Joint Managing Conservators.

The alternative to Joint Managing Conservatorship is called Sole Managing Conservatorship.  When a parent is named as a Sole Managing Conservator, it means that parent has the sole right to make decisions on behalf of the child.  The other parent would be named a Possessory Conservator, which means that they make no decisions concerning the child.  Instead, a Possessory Conservator generally only has rights to possession of the child pursuant to a possession order and the right to receive information about the child’s wellbeing.  It is uncommon for a parent to be named a Possessory Conservator instead of a Managing Conservator.  Generally, the burden of overcoming the presumption of Joint Managing Conservatorship being in the child’s best interest is a difficult hurdle to overcome.  Often, parents who have been named Possessory Conservators have demonstrated a substantial lack of good judgment in some fashion.

When a parent says they want “full custody”, do they mean that they want Sole Managing Conservatorship?  Sometimes.  In other instances, they may mean that they want to deny the other parent any form of possession.

Possession and access of a child refers to the superior right to have physical possession of the child.  Obviously if two parents of a child have split up or divorced, they cannot reasonably have possession of a child at the same time.  Instead, some form of order must be entered in order to determine who will have possession of the child, and when that possession will occur.

Is it possible for a parent to be denied any access to a child whatsoever?  It is extraordinarily rare.  The circumstances which would give rise to a court denying any and all access of a parent to a child are usually the same circumstances which would give rise to potential termination of a person’s parental rights.  Because parental rights in Texas are considered to be a fundamental right, it takes an extraordinary set of circumstances to arrive at this point.  For example, if a parent abandons a child without the intent to return, that may give rise to a denial of a right to possession.  Other instances may include physical or sexual abuse of a child, placing the child in physical danger, or causing the death of another child or of the child’s other parent.  Obviously, all of these are very extreme situations.  This, however, demonstrates how difficult it is to completely deny a parent possession of a child.

Other measures may be taken in order to protect a child from a parent that has more moderate problems, such as alcoholism, a problem with drug abuse or  a mental health issue that is not easily controlled through therapy or medication.  For instance, the times and conditions of possession may be restricted.  Supervised visitation is often used in instances where the parent may pose a danger to the child’s physical or emotional wellbeing if left alone with the child.

When a parent says they want “full custody”, that leaves the door open to a myriad of interpretations.  By examining that parent’s concerns and getting to the root of the issue, we can generally suggest and advocate for conditions and restrictions that can protect the child and provide the parent with the peace of mind they desire.

If you have further questions about child custody issues, please contact our Houston child custody attorney, Bobby L. Warren, at 713-579-9702.

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How to Prepare for a Divorce in Texas

While going through a divorce in Texas is never a completely seamless process, there are a few steps you can take in order to make the process a bit easier.

Much of the preparation for a divorce is centered on collecting documents and preparing yourself financially.  First, you should attempt to gather as many of the following documents as possible:

  • Income tax returns for the last five years
  • Income reporting statements (W-2, 1099, K-1, etc.) for both you and your spouse for the last five years
  • Paycheck stubs for both you and your spouse for the last three months
  • The three most recent statements for all debts owed by either you or your spouse
  • The most recent statement for any retirement funds (401k, IRA, etc.) owned by either you or your spouse
  • Any Social Security Administration statements for you or your spouse
  • Any deeds and closing files for any real estate owned by you or your spouse
  • Any titles for any vehicles owned by you or your spouse
  • Any appraisals of any property owned by you or your spouse

While this list is not exhaustive, it is a good starting point for evaluating the various marital estates involved in your divorce.  If you cannot obtain copies of these documents prior to filing your divorce in Texas, that is fine as well.  Most of these documents can be obtained from your spouse or from third parties once the divorce proceeding have been initiated in a Texas court.

In order to prepare yourself financially for a divorce, you should ensure you have sufficient funds to pay for attorney’s fees.  It is very difficult to judge exactly how much your divorce may cost, particularly at the very beginning.  If you anticipate a fight from your spouse from the very beginning, you should be prepared to have between $5,000 and $10,000 before filing for divorce.  This is particularly true if you have children.  If you anticipate reaching an agreement early on, $2,000 to $3,000 should be sufficient.  Also, don’t assume that you will not need more funds later on.  Begin making plans now for the possible need to pay more attorney’s fees later on.  Many of our Texas divorce clients find that having a very frank discussion about your finances with family and close friends can often lead to the financial assistance you need in order to make it through this very tough time.

Also, if you maintain a joint bank account with your spouse, open up a new checking account early on.  If you receive your paychecks from your employer by direct deposit, find out what process is required in order to redirect your paychecks to a different account.  Ensure that by the time you file for divorce in a Texas court, your paychecks are going to the new account to which your spouse has no access.

A critical mistake some parties make early on in divorces in Texas is leaving their spouse with absolutely no funds in joint bank accounts.  Generally, you should only take from the account what you will need in order to meet your immediate financial needs, including renting a new home and paying a retainer to your attorney.  Courts do not look kindly upon parties who take all of the money and run.

If you have questions about how you can properly prepare for a divorce in Texas, just give our Houston divorce attorney, Bobby L. Warren, a call at 713-579-9702.

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The Heavy Costs of the “Bulldog” Divorce Lawyer

Prospective clients often ask me what sort of lawyer I am:  a high conflict lawyer or a reconciling lawyer.  Of course, they don’t use those terms.  Many times, they ask if I am “aggressive” or “a bulldog”.  Ultimately, what they really want to know is whether I’m going to give them the emotional satisfaction of running their spouse through the proverbial ringer.

Such a stance, however, comes at a cost, both financially and emotionally.  An overly aggressive attorney in a Texas divorce or child custody matter can make it difficult to work out agreements or avoid the need for court appearances.  As attorneys are required to appear in court more often and to do more work to achieve a desired result, the client often finds the cost of their divorce also growing exponentially.

Can a client’s goals be accomplished without resorting to overtly aggressive tactics?  The answer is almost always, “yes.”  On a rare occasion, I come across other attorneys who are being unreasonably aggressive or may overestimate the strength of their client’s case.  Sometimes some aggression in response may help bring such a person in a Texas divorce to the negotiating table when the relative weakness of their case is exposed.  Often times, however, clients find that there is a substantial benefit to working with the other side, collecting information in an efficient and cost-effective manner and making realistic demands of the other side.  In the end, their case takes far less time and the amount spent on attorney’s fees is much lower.

More importantly, however, taking an aggressive stance in a divorce when it is not called for can leave an emotional toll on the parties involved, as well as their children.  Spouses in a divorce often forget that their children can sense when there is conflict between their parents.  This can cause children to perform poorly in school, misbehave or develop social issues which may impact them for many years.  Resolving Texas divorces and Texas child custody conflicts quickly and amicably can minimize the emotional impact on children and the parties involved.

If you are seeking a Houston divorce attorney or Houston child custody attorney who takes a reasoned and balanced approach to such cases, give our attorney, Bobby L. Warren, a call at 713-579-9702.

An Unusual Claim of Hidden Assets in a Divorce

Fridays are always a good time for blog posts with a bit of humor.  I previously discussed the importance of having an inventory in a Texas divorce in order to catalog assets, and some of the techniques Texas attorneys may use to find hidden assets when they aren’t voluntarily disclosed.  I’m not sure I would be prepared for this particular omission from an inventory, however.

A wealthy hedge-fund boss is suing his poker-pro ex-wife for a reason that would be like a stiletto to the heart of any pump-crazy New York gal — her shoe collection.

Daniel Shak claims Beth Shak never told him about her stockpile of 1,200 pairs of designer shoes when they divorced three years ago.

The finance titan, who had shared a Fifth Avenue pad with Beth, claims that she hid the collection from him — possibly in a “secret room” — and that its value may entitle him to hundreds of thousands of dollars more in their divorce settlement.

While it may seem petty to argue over a bunch of shoes, the husband in this odd scenario estimates the shoe collection to be worth approximately $1 million.  That’s a lot of very expensive shoes.

No matter whether we’re talking about designer shoes or stock in a designer shoe company, it is important to protect yourself as much as possible from such omissions.  An inventory gives you a great starting point in a Texas divorce in order to ensure that both spouses are making a full disclosure as to all of their assets.  In the event a spouse fails to disclose certain assets in an inventory, Texas law allows the innocent spouse to ask for a division of that asset.  In some cases, a Texas court can determine whether the failure to disclose the asset was willful, thereby allowing the court to award a disproportionate share of that asset to the innocent spouse.  Without an inventory, however, it becomes much more difficult to prove a failure to disclose, much less a willful failure to disclose.

If you’re concerned about whether you have full disclosure of assets in your divorce, contact our Houston divorce attorney, Bobby L. Warren, at 713-579-9702.

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Interference with Child Custody in Texas: Civil or Criminal Matter?

Although we often think of interference with child custody to be purely a civil matter, as one Texas state lawmaker found out recently, it’s both:

State Rep. Armando “Mando” Martinez was indicted in a bitter, child custody dispute with an ex-wife who once filed to run against him for office.

Martinez, D-Weslaco, surrendered to law enforcement authorities Friday on an interfering with child custody charge and was then released on a personal recognizance bond, his attorney, Fernando Mancias, confirmed Monday. Martinez has been embroiled in an extensive child custody battle with his ex-wife, Jessica Reyes, over a visitation schedule for their son, Kuentin.

Clients often ask me whether they can call the police if the other parent somehow violates the child custody order by not turning their child over to them.  The problem with the question is that there is a difference between what the law says and how it’s enforced.  Generally, most law enforcement officers do have the power to enforce a Texas child custody order.  Many law enforcement officers, however, are reluctant to get involved in such disputes.  The universal line my clients hear from the officer is, “This is a civil matter.  Talk to your attorney.”  We usually then plan on filing a motion to enforce the order.

This news story, however, illustrates an instance where criminal charges can be used:

Although the Weslaco police officers responded to the initial complaint, the Hidalgo County District Attorney’s Office took over the case.

District Attorney Rene Guerra said he presented the case to a grand jury after Reyes approached him about numerous complaints she’s made over noncompliance with visitation rights. Guerra said Martinez was not allowing visitation on the dates that were assigned by the court order.

But he said prosecutors pursued the issue — rather than sorting it out in family court — because of a lack of progress on the case. Court records indicate an extensive legal battle between Reyes and Martinez, spanning several cases and eight years.

“A lot of the judges are not doing their job,” Guerra said. “There’s too many people saying too many things in the courtroom, and sometimes judges don’t want to decide.”

The candid nature of the district attorney’s assessment of the family courts here is very surprising.  I doubt we have reached this point in Harris County, but the lesson to be learned here is that criminal charges are a tool that can be used.  Whether it is used or not often depends largely on the priorities of law enforcement and prosecutors.  In the meantime, however, a good Texas child custody attorney can assist you in resolving your child custody disputes through civil tools, such as motions for enforcement.

If you have a Texas child custody dispute, contact our Houston child custody attorney, Bobby L. Warren, at 713-579-9702.

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Cost Saving Tips for Your Texas Divorce

Preparing to file for divorce in Texas, but concerned about the cost?  Based on our firm’s experience in dealing with divorces over the years, we have noticed a trend in steps that clients can take in order to substantially reduce their costs in a Texas divorce.

  • Sit down and have a mature, thoughtful conversation with your spouse about dividing assets, access and possession of the kids, and child support – For many, this can be a very difficult task.  For others, this is a natural step that must be taken before visiting with their Texas divorce attorney.  In either case, the more issues upon which you and your spouse agree upon when you file for divorce, the less costly that divorce is likely to become.  The stark reality is that the attorneys involved in a divorce generally do not dictate the total cost of the divorce – the spouses involved in the divorce ultimately decide how costly the divorce will become.  When a client comes to our office and provides us with a complete picture of what they and their spouse have agreed upon, they usually spend less than a few thousand dollars.  This is true even when their assets are complex and of high value.  On the other hand, those who come to our office with no agreement and no prospects for an agreement can spend tens of thousands of dollars on a divorce with a relatively modest community estate at stake.
  • As soon as possible, begin collecting important documents which evidence the assets each of you own and when those assets were acquired.  Such documents will include the file you received when closing on your home, titles to vehicles, motorcycles, or boats, and certificates for stocks and bonds.  For bank accounts, ensure you have statements going back at least a year.  Most banks provide access to such statements for free online.  As soon as possible, go online and download each of those statements in Adobe Portable Document Format (PDF).  The same should be done for quarterly statements for any retirement funds you own, including 401(k), 403(b), IRA’s or pensions.  You should be prepared to turn these documents over to your attorney as early in the process as possible.  Attorneys in Texas divorces often need to refer to these documents in order to assist you in determining whether the assets are separate property or community property.  In addition, the value of the assets are often at issue, and these documents can assist in determining the value of each.  Finally, you should also ensure you have income tax returns for the last five years and paycheck stubs for at least the last six pay periods.  These documents can become important in divorces in Texas when child support or spousal maintenance are at issue.
  • When you speak with your attorney, determine what technology that attorney utilizes to communicate with clients and manage their cases.  For example, in our office e-mail is a very cost effective means of communicating with clients.  Although it may take you quite some time to type out an e-mail, it may only take your attorney minutes to read it and comprehend the information you need to provide to him or her.  Yet, you may have saved money by not taking that attorney’s time on the phone to explain the situation.  Also, our office uses an online case management system in order to communicate with clients, share documents and keep track of hearings, meetings and other events.  By taking full advantage of these systems while in the midst of a divorce in Texas, you will likely save money by saving time for your attorney.  For example, we encourage clients to scan and upload documents to our secure online case management system.  If the clients simply handed us hard copies of the documents, we would need to scan and upload those documents ourselves.  Find out from your attorney how you can save them time by utilizing these resources.

By following these tips and reducing the amount of time your attorney must focus on your case, you can dramatically reduce your costs in a Texas divorce. For more information on how our office can help you obtain a divorce in a cost effective manner, call our Houston divorce attorney, Bobby L. Warren, at 713-579-9702.

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The Impact on Health Insurance of Texas Divorces

Whether you are in the middle of a highly contentious divorce or about to initiate an uncontested divorce, it is important to weigh the impacts that the divorce may have on insurance coverage for you, your spouse and your children.

A frequent question clients pose concerns whether their spouse can cancel health insurance before the divorce is filed or while it is pending.  While health insurance policies vary between employers, there is nothing under Texas law which automatically protects you from such actions.  Instead, the best step which you can take to prevent any possible cancellation of health insurance benefits is to obtain a temporary restraining order from the court in which you’re filing your divorce.  Such temporary restraining orders (TRO’s) are a common part of the divorce process in Texas.  In fact, some courts (such as the 387th Judicial District Court of Fort Bend County, Texas) have standing restraining orders which prohibit such cancellations by spouses involved in divorces in their courts.

Ultimately, however, if you rely upon your spouse for health insurance, you will eventually need to look into options available to you after the divorce is finalized.  One such option are your rights to continue coverage under the Consolidates Omnibus Budget Reconciliation Act of 1985 (commonly known as “COBRA”).  Yes, this is the same law you commonly invoke to keep your health insurance benefits when you switch jobs or become unemployed.  Such rights vary depending on whether state law applies to your policy or the federal law concerning health insurance, but you should be able to keep your spouse’s health insurance coverage for yourself for anywhere from 18 to 36 months.  Keep in mind, however, that this can be costly in some circumstances, so you may want to compare this coverage against what is available from an independent health insurance agent.

As for health insurance coverage for children, the party who is ordered to pay child support will also be the person financially responsible for health insurance for the children.  If that parent has coverage available through work, that may be the best option.  Otherwise, the other parent can carry health insurance and the non-carrying parent will be required to pay the actual cost of the monthly premium as additional child support.

In any event, health insurance coverage is one of the most important elements of planning for a post-divorce world.  If you have any questions or concerns about your particular situation, contact our Houston divorce attorney, Bobby L. Warren, at 713-579-9702.

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