Category: Parent-Child Relationship

Will Dwight Howard Save on Child Support If He Signs With The Houston Rockets?

It’s not every day that you see a sports headline on a family law blog.  For those of you who are not basketball fans, Dwight Howard is one of the top basketball players in the National Basketball Association (NBA).  While he played last season for the Los Angeles Lakers, he is now an unrestricted free agent and is currently being courted by a number of NBA teams, including the Houston Rockets.

Yesterday, a local Houston rapper by the name of “Slim Thug” sent, among others, the following message to Dwight Howard on Twitter:

The “20%” remark is a reference to the fact that the child support guidelines in Texas require a child support obligor (the person paying child support) to pay 20% of their monthly net resources in child support for one child.  The percentage goes up by 5% for each child thereafter, up to 6 children.

As strange of a method of recruiting a basketball player as it may seem, I immediately realized that “Slim Thug” makes a dangerous attorney.  While it sounds great, unfortunately for Dwight Howard, he’s absolutely incorrect.

I’m not entirely sure where Dwight Howard’s children live, but if he’s paying child support, the children don’t live with him.  The reason that is important is because in most states, if not all, jurisdiction to set child support is typically determined by the residency of the children.  Unless the children are also moving to Texas to be closer with Dwight Howard, his decision to come play basketball for the Houston Rockets will have little to no impact on how his child support is calculated.

The lesson?  If you want to know how your child support will be affected by a move to Texas, talk to an attorney licensed in Texas.  Don’t rely on guys who call themselves “Slim Thug” on Twitter.

Written by Comments Off on Will Dwight Howard Save on Child Support If He Signs With The Houston Rockets? Posted in Child Support

Texas Child Support Cap To Be Raised September 1, 2013

When calculating the amount of child support that a parent must pay in a Texas child custody case, a Court is generally limited in the amount of a parent’s income that may be considered in the calculation without evidence that the child requires additional support.  Prior to 2007, the Court could only consider up to $6,000 of the parent’s “net resources” (calculated by deducting from gross monthly income certain amounts for income taxes, payroll taxes and the child’s health insurance premiums).

With the passage of legislation in 2007, Texas Courts are now allowed to consider up to $7,500 of a parent’s net resources in calculating child support.  Also, a system was put into place which would allow for the automatic readjustment of the cap every six years based on the rate of inflation.  The first such adjustment is due this year.

I recently received notice that the Texas Office of the Attorney General will be publishing an increate of the cap on net resources from $7,500 to $8,550, effective as of September 1, 2013.  For those receiving child support from someone whose net resources are at least $8,550, this could mean the possibility of seeking an increase in child support in excess of $200 per month.

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.

Using Social Media in Texas Family Law Cases

I recently wrapped up a long and drawn out motion for enforcement of a child support obligation in which the father was claiming that he suffered from various medical conditions and was limited in his ability to work long hours.

What that father did not know was that I searched his name on Facebook to determine whether he had a Facebook page.  Indeed, he did.  Worse yet (for him at least), substantial portions of that Facebook page were visible to the public, including me.  That meant that I could view what was happening on his Facebook page without the need to request to add him as a friend.

It didn’t end there.  Based on information my client provided me, as well as based on the father’s Facebook posts, I was able to find the Facebook page of his new girlfriend.  Much like the father, the father’s girlfriend left much of her Facebook page visible to the public and I was able to obtain photos of the father and the father’s girlfriend out and about at various clubs and events throughout Houston.

When the father reiterated that he has been told by doctors to take it easy and not work too much, he was shocked when I showed him the photographs and proceeded to ask him questions which would allow me to introduce the photographs into evidence.  Needless to say, the judge was less than pleased with this father who wasn’t being completely honest about his situation.

The lesson here is that social media is continuing to be a powerful tool in all areas of family law litigation, including child support enforcement.  As you are preparing for your divorce, what do you currently have posted on your Facebook page or on your Twitter account that your spouse can see?  What can you do about it?

First, it’s important that you do not delete anything.  Doing so could be considered spoliation of evidence and could be used against you in a trial or hearing.  Instead, the first step is to stop posting to your Facebook account, or at least don’t post anything you wouldn’t want the judge in your case to see.

The next step should be to deactivate your account, particularly if you have already posted things you don’t want a judge to see.  It won’t delete any of the data, and it won’t stop your spouse from requesting that data through the discovery process, but it will at least keep intrepid opposing attorneys from simply stumbling upon your page with a simple Facebook search.  You can always reactivate the Facebook page later when your case is finished.

We may not be able to reverse the pervasiveness of social media today, but when you’re preparing for a divorce, child custody dispute or child support enforcement, at least you can minimize the impact it could possibly have on your case.

 

What is a Standard Possession Order?

Most of my new clients are often confused at first when we refer to a “standard possession order”?  What is it, exactly?  What makes it “standard”?

As the Texas legislature has further developed the Texas Family Code, they attempted to create a default possession order that courts would be obliged to implement unless there was evidence that a different schedule would be in the best interests of a child.  Hence, the standard possession order was born.

In essence, under Texas law, the standard possession order is deemed to be the minimum amount of time of possession for a non-primary conservator (the parent who doesn’t determine the residence of the child) which is in the best interests of the child.  In other words, absent some evidence to the contrary, once a court determines who a child is living with on a regular basis, the court must award the other parent, at a minimum, the custody schedule contained in the standard possession order.

That does not mean, of course, that the court cannot hear evidence that less access and possession would be in the child’s best interest.  If a parent shows an inability to care for a child for an extended period of time for whatever reason, a court could choose to curtail that time.  On the other hand, if a parent presents evidence that more time with the non-primary conservator would be in the child’s best interests, time above and beyond a standard possession order may be awarded.

So what sort of schedule is implemented in a Texas standard possession order?  Initially, we should examine the weekend possession.  Under a standard possession order, a conservator is awarded access and possession on the weekends following the first, third and fifth Friday of each month.  If you look at a calendar and focus solely on the Fridays on that calendar, you will see either four or five Fridays.  If a month has four Friday’s, the conservator with a standard possession order would have the child on the weekends following that first and third Friday.  Generally, about four months out of every year have a fifth Friday (2016 is one of those odd ducks containing five months with a fifth Friday), allowing the non-primary conservator an extra weekend.  You should note that this creates a situation where the fifth Friday is immediately followed by the first Friday of the following month.  This does provide a conservator under a standard possession order back-to-back weekends of access and possession of the child.

In addition, the non-primary conservator will generally have time on Thursday evenings throughout the school year.  Why only during the school year?  This restriction is put in place in order to avoid the conflicts that these Thursday periods of possession would inevitably have with various holiday periods of possession, as we will investigate further below.

For holidays and school vacations, the schedule usually varies depending on whether it is an even or odd year.  Parents generally alternate Spring Break and Thanksgiving vacation by even and odd years.  Christmas vacations is split in half (with the exchange occurring at Noon on December 28), with parents getting either the first or second half of the vacation depending on whether it is an even or odd year.  Finally, the non-primary conservator will generally get 30 days with the child in the summer, either to be taken all at once or divided up into two periods of possession, with some restrictions.

Finally, it should be noted that a slightly different schedule applies for conservators who reside more than 100 miles from one another.

Keep in mind that this is not an exhaustive look at the standard possession order – this is merely a primer on the concept of a standard possession order.  If you have questions about implementing a standard possession order, or perhaps modifying your own possession order, feel free to contact our Houston child custody attorney, Bobby L. Warren, at 713-579-9702.

Creative Use of Texas Temporary Orders

In my experience, temporary orders are one of the more underutilized tools available to parties going through a divorce in Texas or perhaps struggling with a child custody dispute in Texas.

In essence, temporary orders are exactly what they sound like – orders made by a Texas court on a temporary basis in order to provide some stability and predictability while a case is still pending.  When I say that such orders are “underutilized”, I don’t necessarily mean that parties don’t seek them when they should.  Instead, I mean that people don’t fully appreciate all of the options available in temporary orders.  While there are the obvious provisions concerning conservatorship, access and possession, as well as child support, there are other provisions available for use in temporary orders.

For example, temporary orders can often be used in order to cause a divorce or child custody matter to move along more quickly than it would without such orders.  In Harris County, Texas, depending on the family court you’re assigned to, it often takes several months after your filing date to receive a trial date. That trial date will likely be scheduled anywhere from 3-6 months out.  As any Houston divorce attorney will tell you, that trial date will likely be reset for another 90 to 120 days unless the parties have reached a settlement.  “Why?” you may ask.  Due to the substantial volume of cases in Harris County family courts, divorce and child custody disputes generally become backlogged, with the older cases taken up for trial before the newer ones.  The courts hope that by setting a trial date sooner, the parties will be encouraged to settle sooner.  If they do not, the court simply resets the trial date once its two week trial docket is full of the older cases.

How, then, can you as a litigant in this process, move the case along more quickly?  By proposing and entering into temporary orders with the other party, you can agree to be ordered to mediation well before the trial date.  Obviously, you will want to collect information you need in order to evaluate the marital property, as well as identify and value community assets.  Temporary orders can assist you with that task as well by establishing temporary orders which require the parties to exchange a sworn inventory and appraisement within a specified period of time (60 days is customary).  By requiring an early exchange of inventories, coupled with mediation shortly thereafter, you substantially increase the chances of settling a divorce case within a few months instead of waiting nearly a year to be called to trial.

In addition to inventories, parties can agree to exchange other documentation as part of temporary orders.  One very common set of documents ordered produced as part of temporary orders are income tax returns and paycheck stubs.  These are essential to establishing the amount of child support to be paid by the non-possessory conservator.

Finally, temporary orders can also be used to order the sale of certain assets before a divorce is final.  Most commonly, this means the sale of the marital residence.  Too often we purchase homes assuming the best case scenario – the continuation of a happy, healthy marriage.  When this plan doesn’t go as intended, my clients often find themselves with a home they cannot pay for themselves.  Selling the home is a frequent solution to this problem.  I have often drafted temporary orders which provide for the orderly and fair sale of the marital residence, with the proceeds divided up between the parties in a fair and equitable manner.

If you’re wondering whether seeking temporary orders are appropriate for your particular case, give our Houston divorce attorney, Bobby L. Warren, a call at 713-579-9702.

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.

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.

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.

Quantity vs. Quality of Time in Child Custody

How many times have you heard someone in a child custody dispute remark about how one parent received more time than the other parent?  Rarely do you see a child custody order in Texas which contains equal time for both parents.Texas Child Custody Law

Is the quantity of time, however, the real value we should take away from a child custody schedule?  If the mother of a child gets that child during the week, what does that mostly entail?  It’s going to consist of getting that child ready for school in the morning, dropping them off at school, being away from them for the better part of the day while they’re in school, then getting them to do their homework, followed by dinner, then getting them in bed just to do it all over again in the morning.

Dad, on the other hand, gets the kids at least half of the weekends of the month (in Texas, if there are five Fridays in the month, it’s 3 out of the 5 weekends).  What is Dad doing on those weekends?  Spending quality time with the kids, going to the zoo or the park, maybe catching a Houston Astros or Houston Texans game.

I don’t want to completely minimize the value of having your children around during the week, but are parents who are subject to a standard possession order in Texas losing sight of the value of that order when they focus on the quantity of time instead of the quality of time?

When parents raising children in split households begin focusing on what they do have instead of what they don’t have, quality co-parenting is a far easier task.