Category: Child Custody Disputes

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.