Monthly Archives: May 2013

Top 10 Texas Child Custody Myths

It’s shocking how much misinformation is floating around among those looking for help with their Texas child custody cases.  The scary part about it is that I get calls to my Houston office with the same “myths” being repeated over and over.  Obviously, it’s coming from somewhere, and I often find out from those that call my office that they get their information from the Internet.  In an effort to combat some of these myths, I thought I’d share some of the more prominent ones.

10)  The Court will prohibit my spouse from seeing our children because they smoke marijuana (or drink heavily, use pain medications, etc.)

That’s probably not true.  Courts are extremely reluctant to keep children entirely away from their parents, and a few mistakes in life usually aren’t enough to convince a court to take such a drastic step.  At best, the Court will likely issue an injunction prohibiting any party (you or your spouse) from using any substances for which they do not have a prescription within a certain period of time before periods of possession of the children are to begin, and for the duration of that period of possession.  The Court might even order a party to seek professional help for the substance abuse.

If, however, there is a history of the child being placed in danger due to the substance abuse, the Court might go so far as ordering supervised visits until the parent is cleaned up.  That, however, is a fairly drastic step for the Court to take.

9)  The Court will not award me custody of my children because I don’t work and my spouse makes substantially more money than I do.

Actually, if anything, the circumstances leading to that disparity in earning power might actually work in your favor.  Too often we hear from people who are stay at home moms or dads, while the other parent works.  This results in the stay at home parent becoming entirely dependent on their spouse for income.  In the event of a divorce, however, the Court’s primary concern regarding the children will be ensuring that they remain in a nurturing and supportive environment, preferably one that closely resembles what they have been accustomed to.  That usually means that the stay at home parent will be in the best position to provide that environment because they have been filling that role already.

So, how exactly is the stay at home parent supposed to support those children?  Well, for one, that’s what child support payments are for.  Obviously, most child support payments aren’t sufficient to cover all expenses, so the stay at home parent will likely need to find some work.  The fact, however, that one parent has been the primary caregiver for the children during the marriage, however, is a major factor for most Courts determining who should be the primary caregiver in a child custody dispute in Texas.

8)  The other parent of my children doesn’t work, so the Court isn’t going to award any child support.

That’s dead wrong.  How is this unemployed parent making ends meet?  Obviously they find ways to eat, keep a roof over their head and provide for other basic needs, right?  The Court is going to require them to find some means of doing the same for their children.  The child support may not be all that much – maybe $200 or $300 per month – but the Court will generally not allow a parent to simply shirk any financial responsibility for their children.

7)  Since the other parent of my children hasn’t shown up to exercise their possession in over a year, I don’t have let them take my child with them if they suddenly show up to exercise possession in our court order.

Wrong again.  Unless and until you obtain a modification of the child custody order you have in place, you are required to follow that order.  Unless the court order provides explicit conditions that require the other parent to exercise possession in order to continue to receive rights to periods of possession (the vast majority of orders do not contact such provisions), a parent can technically choose when and if they wish to exercise possession as they wish, so long as the court’s order gives them the right to that possession.

Therefore, it’s always a good idea to be proactive in the event a parent simply stops showing up.  Seek a reduction in their possession immediately to avoid the sudden shock of a child being forced to spend an entire weekend alone with a parent they haven’t seen in over a year and might not even really remember.  Waiting until the parent shows up on your doorstep one day is far too late to seek a change in the court orders.

6) The Court will likely just award us custody split exactly evenly.

Probably not.  Most Courts hold firm to the concept that a child needs one place they call home.  This is especially true of school aged children.  Courts will often award possession to one party based on a standard possession order or something similar (for a better description of what constitutes a standard possession order, click here to view a calendar issued by the Office of the Attorney General).

Splitting possession time of children (for example, one week on, one week off) generally causes too much chaos in a child’s routines and has a greater likelihood of contributing to behavioral problems and academic problems.  If you believe that the standard possession order isn’t quite in the child’s best interest, you’re better off making gradual changes to that standard order rather than starting from scratch.

5)  I don’t need child support from him (or her).  If my spouse and I agree, there’s no need for payment of child support.

It really depends on which court you’re in, but I wouldn’t bet on it.  Remember that the child support isn’t for you.  It’s for your child.  If you really don’t need the money, put it into a college savings account for your child so they have something to help with tuition and books when they go to college.  Or, you might want to consider putting it into a savings account as a sort of “rainy day fund”.  You may not need the money now, but who can say that will be the case in the future?

4)  When my child turns 12, they get to decide with whom they want to live.

Not quite.  While it is true that a Court is required to take into account the wishes of a child aged 12 or older in determining which parent primarily takes care of the child, it is not the sole factor.  In fact, the Court is actually allowed take into account the wishes of a child aged less than 12 years, but is not required to do so.  Just because a 12 year old or teenager believes that living with their mother (or father) is better for them doesn’t necessarily make it so.  The Court still has the obligation to review other evidence and make a decision based on all relevant factors.

Generally, the judge will sit down with the child in chambers (sometimes with or sometimes without the attorneys present) and will talk with the child about their present situation, how everything is going with school, friends and extracurricular activities.  They will ask the child about how they like living with each parent and which one they most want to live with (and why).  At the end, the judge may use the conversation more to determine other issues than simply the child’s wishes.

3)  The Court is going to give me custody if I can just tell them how bad the other parent is.

There’s an old saying down at the courthouse that goes something like this: “10’s don’t marry 2’s.”  In other words, people who are perfectly well adjusted, have sound judgment and are in the best position to raise kids don’t go off and marry the scum of the earth.  Your strategy to denigrate the other parent and tell the Court just how bad they are might reflect on you as well as the parent of your child.  It may be tempting to use the opportunity to trash and embarrass the other parent, but it’s rarely a wise strategy.

It’s better to emphasize the qualities and circumstances that place you in a better position to take care of the children.  Sure, you can mention the foibles of the other parent, but you have to be tactful on how you do it.  It is imperative to always approach it from the perspective that you’re only looking out for the best interests of the children.  It pains you to raise such a delicate subject, and you dearly care for the other parent, but the issues must be raised in order to protect the children.  If you can take that approach when dealing with negative aspects of the other parent (but only after emphasizing your positives), the Court will give your concerns greater weight.

2)  The Court will surely order that the other parent not take my children around anyone they are dating.

As cliche as it sounds, this is the 21st century.  Courts see and hear things every day that would make your head spin.  The idea that someone ending a relationship  or marriage that produced children will find themselves dating again, sooner or later, is a common reality.  In fact, those parents may very well find themselves getting married (again).  If they do, your children will end up living with that step-parent at some point.  Do you really want the first time they meet this person to be at the wedding?

Courts will take some precautions.  It’s not unheard of for a Court to order parents not to allow someone with whom they are in a dating relationship to spend the night when the children are home.  That, however, is about the extent that Courts will go without further evidence that the new boyfriend or girlfriend is bad news.  Moreover, that “bad news” needs to be more than some misdemeanor they were convicted of 10 years ago.  Each Court is going to consider the best interests of the children on a case-by-case basis, but my general assessment is based on years of direct experience with my own cases as well as watching many more at the courthouse.

Also, keep in mind that there is another saying down at the courthouse (Judges love sayings): “What’s good for the goose is good for the gander.”  If you’re going to ask for some substantial impediment to your ex dating again, would you be comfortable enduring that same impediment?  If not, don’t even think about asking for such restrictions, because if you succeed, you might find yourself under the same conditions.

1)  Winning is the most important thing.

No, it’s not.  The best interests of your children are the paramount concern of the Court, and it should be yours too.  Before you can truly internalize that philosophy, you must be honest with yourself.  Do you, in fact, work very long hours and work and travel frequently, making it difficult for you to be the primary caregiver of your children?  Admitting that the other parent is in a better position to take care of your children on a regular basis doesn’t make you a bad parent or a bad person in general.  In fact, it means you’re putting your children’s interests before your own.

That being said, you should never hesitate to protect your rights.  Even if you cannot be the primary caregiver of your children, you do need an attorney who will be able to successfully navigate the process of a Texas child custody dispute and obtain for you the best possible result that protects your children’s interests as well.

Why did the Court Award Temporary Support to Your Spouse?

All too often, when I get calls from potential clients seeking a divorce, they refer to their assets in personal terms.

“That’s my car.  I purchased it with my money.”

Of course, after having a bit of a discussion with the potential client, they soon learn that when it comes to marital property laws in Texas, there is rarely such a thing as “your car” or “your money”.  Instead, once you’re married, nearly everything you acquire belongs to the community estate.  That community estate belongs to both you and your spouse.  While you may have a right to manage your earnings how you wish, you do not have a sole property right to them.

So when one person is the primary income earner for a household, they often find themselves paying for some of their spouse’s expenses while their divorce is pending.  Sometimes they may even find that the court has ordered them to make cash payments to the other spouse for certain expenses, including attorney’s fees.

Without such provisions, stay at home moms (or dads) would find themselves unable to afford to file for divorce or obtain legal representation if their spouse decided to file for divorce.  Sure, they would receive part of the community property at the end of the process when the marital estate is divided, but that doesn’t help them while the divorce is proceeding.  Instead, this provides the spouse who otherwise would have little to no access to community funds an opportunity to make ends meet and to hire an attorney.

There is, of course, a limit to this.  Courts in Texas have found that spouses are only entitled to enough temporary spousal support to meet their reasonable necessary expenses.  It is not intended to maintain a particular lifestyle, no matter how accustomed to it they have become.  It’s also irrelevant if the other spouse could afford to maintain that high level lifestyle.  The court is going to look at all sources of income (including child support) available to the spouse seeking support, as well as the reasonable necessary expenses.  If there is a shortfall, the court should only order the payment of an amount to make up the difference – nothing more, nothing less.

It is important, therefore, to hire an attorney who will scrupulously examine financial information statements submitted for hearings on such temporary orders to ensure that the expenses claimed are, in fact, reasonable and necessary.  Without a critical eye, a party might include expenses that are not at all necessary, which could pose a substantial financial burden on the spouse ordered to pay support.  On the other hand, unless a spouse asking for support is careful to put together a financial statement that is reasonable and fair, and includes all necessary expenses, they may find that they do not receive the full amount of support that they need in order to make ends meet.

Do Texas Divorce Decrees Really Include “Morality Clauses”?

While reading the news yesterday morning, I came across an article in the Washington Post about the struggles that a woman in Collin County, Texas was having with her divorce decree:

A judge has ruled that a North Texas lesbian couple can’t live together because of a morality clause in one of the women’s divorce papers.

The clause is common in divorce cases in Texas and other states. It prevents a divorced parent from having a romantic partner spend the night while children are in the home. If the couple marries, they can get out from under the legal provision — but that is not an option for gay couples in Texas, where such marriages aren’t recognized.

In my experience, there is quite a bit confusion over how a morality clause works.  Generally, what we refer to as a “morality clause” is essentially a prohibition placed in a Texas divorce decree which prohibits the parent of a child from allowing another unrelated person with whom they are in a romantic relationship from being in the same household as the child between certain overnight hours, such as from 10:00 a.m. to 6:00 p.m.

Keep in mind that few divorces are decided by judges – most couples in Texas settle their divorces by agreement.  Most morality clauses aren’t imposed upon divorcing couples by Texas judges.  Instead, they are agreed upon by the parties either through informal settlement discussions or through an alternative dispute resolution process, such as mediation.

Why would someone agree to such a clause?  For some couples with young children, there is a concern that a parent who begins to date again may want to have their new significant other spend the night while the children are present, exposing their children to elements of the relationship that the other parent may have concerns about.  Such clauses are less common where children are older at the time of the divorce.  In fact, many couples negotiate an expiration of the “morality clause” once the youngest child reaches a certain age.  The key here is that the parents are working together to determine what is best for their own children, rather than having the restriction imposed upon them by a judge.