Tell Me Why: Order Granting Grandparent Access Must Include Specific Findings

On March 21, 2017, the Dallas Court of Appeals reversed and remanded an order appointing paternal grandmother a joint managing conservator with the child’s mother, In The Interest of J.R.W, A Child.

For a person to bring a lawsuit, they must have standing to do so, meaning that they have a connection to the matter and a stake in the outcome. Statutes set forth the requirements for a person to have standing in regard to a claim, and for grandparents, standing regarding conservatorship (custody) or possession or access to their grandchildren is set out in the Texas Family Code.

In this case, grandmother intervened into a suit affecting the parent-child relationship filed after the parents who had never married had separated. The child’s mother challenged grandmother’s standing to intervene in the suit, which was a threshold issue. The court of appeals found that grandmother had standing under Texas Family Code §153.432 to request possession or access to the child, and had filed the required affidavit (and a later an amended affidavit) with supporting facts that the denial of her request would significantly impair the child’s physical health or emotional well-being.

If the court determines the facts in the affidavit if true are not sufficient to grant the relief requested, then the court shall deny the relief and dismiss the grandparent’s suit. The mother complained that some of the facts in the affidavit did not exist at the time grandmother filed, but occurred afterward. The court held that grandmother’s affidavit was not required to stand or fall only on facts existing at the time she filed; since she was not basing her standing on the family code section that she had actual care, control, or possession of the child for a least six months not more than 90 days before filing.

The mother then complained that the order failed to contain specific findings by the trial court required under Texas Family Code §153.433 when a grandparent is granted possession and access over a parent’s objections. §153.433 as amended now follows the U. S. Supreme Court decision in Troxel v. Granville that there is a presumption that a parent acts in his child’s best interest. Because of this presumption, the trial court must include specific findings in its order granting grandparent possession and access; those findings cannot be implied or deemed by looking at the record as a whole. For this reason, the case was reversed and remanded back to the trial court for further proceedings consistent with the opinion.

So, although grandmother not only survived the challenge to bring the suit but also was ultimately named a joint managing conservator, the judgment was reversed for not containing the mandatory findings as to why this relief was granted; illustrating the strict statutory requirements that must be met in grandparent access actions.

Spring Break is History; Here Comes Summer

The Texas Family Code standard possession order (SPO) is the schedule followed by most divorced parents in this state. Since it is designed to be the presumed minimum schedule, it is very detailed and contains many notice provisions that apply to both parents. One of those important notice provisions is coming up on April 1st.

A parent awarded possession and access to the children as a possessory conservator who resides 100 miles or less apart from the primary residence of the child may by April 1st of each year specify his summer possession by written notice to the managing conservator as follows:

• 30 days:
• between the day after school dismisses for summer vacation and seven days before school resumes at the end of summer vacation
• to be exercised in no more than two separate periods of at least seven consecutive days

If a parent does not give the notice by April 1, then their summer possession will be from 6 p.m. on July 1 through 6 p.m. on July 31.

A parent awarded possession and access to the children as a possessory conservator who resides over 100 miles from the primary residence of the child may by April 1st of each year specify his summer possession by written notice to the managing conservator as follows:

• 42 days:
• between the day after school dismisses for summer vacation and seven days before school resumes at the end of summer vacation
• to be exercised in no more than two separate periods of at least seven consecutive days

If a parent residing over 100 miles does not give the notice by April 1, then their summer possession will be from 6 p.m. on June 15 through 6 p.m. on July 27.

Written notice is defined in the SPO to include electronic mail (email) or facsimile, and is deemed timely made if received or postmarked before or at the time the notice is due. Note: the SPO does not include text or other electronic messaging as a way to give notice.

So don’t be an April Fool; provide notice of your summer possession by April 1st, and most of all enjoy that time with your children.

What are “Grandparents’ Rights”?

Extremely limited under federal and Texas law, as recently confirmed in the Dallas Court of Appeals decision In The Interest of K.R.P.C., A Child.

In 2000, the United States Supreme Court spoke on this issue in Troxel v. Granville, finding that the due process clause of the Fourteenth Amendment to the United States Constitution protected the fundamental right of parents to make decisions concerning the care, custody, and control of their children. Accordingly, statutes can permit a court to order visitation by a grandparent against a parent’s wishes only in the most limited of circumstances.

In Texas, those circumstances are set out in the Texas Family Code. A grandparent seeking court-ordered access must include an affidavit with his request setting forth facts alleging that denial of the access to the grandchild would significantly impair the child’s physical health or emotional well-being. The court must deny the relief and dismiss the suit unless the court determines that the facts in the affidavit would support the requested relief. Assuming that the grandparent can get past that hurdle and actually have a hearing on his request, there are additional requirements to be met before the court can order the grandparent access.

In the Troxel case, the court noted that a state cannot infringe on a parent’s right to make child rearing decisions simply because a state judge believes that a “better” decision could be made.

The Dallas Court of Appeals following the Troxel ruling and the requirements of the Texas Family Code affirmed the trial court’s judgment dismissing the grandfather’s request for access. The court also noted that grandfather, who represented himself, should be held to the same standard as a licensed attorney in regard to complying with the applicable laws and rules of procedure. To hold otherwise, would give an unfair advantage to parties who choose to represent themselves.

No Harm, No Foul in Appeal of Divorce Case

Today, in Kramer v. Kastleman, the Texas Supreme Court clarified the application of the acceptance-of-benefits doctrine to an appeal of a divorce case, an issue it has not taken up since its decision 67 years ago in Carle v. Carle. Simply put, the doctrine means a party cannot have it both ways—appeal the court ruling while accepting the benefits of it—and if it was found that a party had done so, his appeal could be dismissed with no review of the merits.

While there were exceptions to the doctrine, such as economic necessity, the Court noted in Kastleman that the exceptions had not been uniformly applied by the various courts of appeals in Texas. Some courts applied a strict approach and summarily dismissed a party’s appeal, while others took a more enlightened approach in reviewing and applying the exceptions.

The Court also noted that this doctrine is particularly problematic in divorce cases where a party may be accepting benefits in property in which he or she already had an interest as part of the marital estate. In these instances, the application of the doctrine as a hard-and-fast rule is contrary to its origins in equity—fairness. It is also contrary to this state’s policy favoring adjudication on the merits of a claim rather than on a technicality.

The Court concluded that equity does not favor a Catch-22, putting a party in the position of choosing to give up control of community property or give up their appeal. Merely using community property awarded in the decree is not enough to preclude an appeal without a showing that the other party has been prejudiced by the use of the property.

The bottom line for divorcing parties in Texas is that now, in weighing the factors as to whether to appeal a divorce decree, using property awarded to them in the decree is no longer an automatic foul resulting in dismissal.

Is Family Law Going to the Dogs?

And cats? And goldfish? In Alaska, the divorce laws were recently amended to provide that courts can consider the well-being of the animal in making an award of custody of the pet. The law is one of the first in the country to do so and is being hailed as groundbreaking.

In Texas, pets are still considered to be property, Strickland v. Medlen, and are treated as such in a divorce. However, under the Texas Family Code, a protective order can include a provision prohibiting a person found to have committed family violence from harming, threatening, or interfering with the care, custody, or control of a pet, companion animal, or assistance animal in the care of a person, family, or household member protected by the order.

This protective language has been incorporated into the Dallas County Standing Order Regarding Children, Pets, Property and Conduct of The Parties which applies in all family law cases filed there. Other counties in Texas have also included this language in their “standing orders”.

In addition to prenups, postnups, and no nups, parties can enter into “pet nups” to specifically provide for the rights and responsibilities they will each have in regard to their pet in the event they are no longer living under the same roof.

With society’s changing attitude that pets are not property but family, this is an emerging area of family law and other states, including Texas, may follow Alaska’s lead in this area.

Who’s your Daddy in the new age of reproduction?

Texas Family Code §160.702Today, in the case of In The Interest of PS, A Child, the Fort Worth Court of Appeals provided an answer to that question. In this case, a child was born as a result of a sperm donation to the mother from a male friend. However, the donation was not made through a licensed physician but directly to the mother who successfully inseminated herself with the donation.

Initially, mother and her friend agreed that he would be part of the child’s life, but when mother’s position on that changed, he sought to have the parent-child relationship legally established between him and the child. The mother maintained he could not be legally established as a parent because he was a “donor” per Texas Family Code §160.102(6) which is defined as an individual who provides sperm to a licensed physician for use in assisted reproduction. Texas Family Code §160.702 provides that a donor is not a parent of a child conceived as a result of assisted reproduction.

The court held that in this case that the definition of “donor” was not met as the donation was not made through a licensed physician as required under the family code. The trial court’s order establishing the parent-child relationship with the father was affirmed, including naming him joint managing conservator with the mother, awarding him possession periods with the child, and ordering that he pay child support.

Medical advances and evolving social attitudes have opened new avenues as to how children can be conceived; allowing people the opportunity to fulfill their dream of having a child when they might not otherwise have been able to do so. However, this case highlights the importance of fully understanding the status of the participants under Texas law before choosing a course of action to make that dream come true.

What Does Being Civil Have To Do With Family Law?

Everything! September 9th is being recognized as The Day of Civility and Professionalism by the Dallas Bar Association with a series of events. For more information, click here.

What is civility? As discussed in the link, it is nothing more than professional courtesy, respectful demeanor, or simply good manners. Things we should all do in our daily interactions, but also things which we all need to be reminded of from time to time.

In family law, this duty of civility to opposing counsel can sometimes be misunderstood by clients. Family law matters by their nature are intensely personal to those involved as they deal with the disruption of personal relationships. Understandably, clients may be experiencing a variety of feelings toward the other party such as anger, disappointment, and betrayal. Sometimes these feelings spill over to anyone associated with the other party, including his attorney, resulting in an “us” and “them” mindset.

So if the client’s attorney says a cordial hello or exchanges pleasantries with opposing counsel at the courthouse or a deposition, the client may perceive that if his attorney is being nice to one of “them,” then he is not one of “us.” From there, they may jump to the conclusion that ‘my lawyer isn’t really fighting for me because the only way my attorney can be truly advocating for me is if he has adopted all of my feelings toward the other party and his attorney and acts them out in the course of the case.’

Nothing could be further from the truth! As family law attorneys, we certainly empathize with the emotions that our clients are feeling, but in order to be effective advocates for them, we must remain objective in our analysis of the facts and the law. That is why doctors don’t operate on their own family members, for example. Having an emotional investment in a situation can cloud a person’s professional judgment. So if your attorney greets opposing counsel with a cheerful hello, remember it doesn’t mean they aren’t doing their job for you—but instead, that they are doing it in a professional manner.

Tagged / No Tags: Behind on child support? Then no vehicle registration renewal in Texas

Man driving carPart of the responsibilities of the Office of the Texas Attorney General (AG) is the collection and enforcement of child support payments. To carry out that mission, the AG can implement policies to aid in the collection of past due support. For example, driver’s licenses or other state-issued licenses can be suspended if a person is behind on support payments.

The newest addition to these collection tools will go into effect with the renewal of vehicle registrations beginning in December of this year. If a person is six months or more behind in child support payments, they will not be able to renew their vehicle registration until the past due child support is addressed. The entire past due amount does not necessarily have to be paid in order to lift the renewal ban if a satisfactory payment plan is set up. The AG has set up a dedicated phone line for these situations. It should be noted that this policy applies to the renewal of existing registrations, but not to applications for the registration of new vehicles.

Although the policy does not go into effect until December, the impact may be felt as soon as this month as registration renewal notices are sent out three months in advance.

The policy will most certainly have its supporters and its critics. It is not the role of this blog to advocate policy one way or the other, but simply to provide information regarding family law in Texas. The more this policy change is shared, the better-informed parents can be and avoid an unpleasant surprise when registration renewal time rolls around.

When is the 5th weekend of the month, anyway? (One is coming up next month)

The Texas Family Code standard possession order contains a schedule of weekend possession on the 1st, 3rd, and 5th weekends of the month. But when does the weekend start? Per Texas Family Code § 153.312 weekends begin on Fridays. Why is this important? Isn’t that obvious? Let’s look at September and October of this year and see.

When there is 5th Friday of the month as there will be next month; Friday, September 30th is the beginning of the 5th weekend in September; even though the next day, Saturday, is the 1st day of October. So for the purposes of the standard possession order, that weekend is not the 1st weekend in October, but the 5th weekend in September, even though Friday is the only day in September in that weekend.

5th weekends of the month are not routine and occur on average 2-3 times in any given calendar year; just often enough to cause confusion by a quick glance at the 1st “calendar” weekend of a month, instead of looking at the calendar month in which the Friday of the weekend falls.

Also, when there is a 5th weekend in a month, the next weekend will be the 1st weekend of the following month since it will begin with the 1st Friday of that month. In our example, Friday, October 7th will be the beginning of the 1st weekend in October.

This means that a parent with possession times under the standard possession order will have the children two weekends in a row: the 5th weekend of the month and the 1st weekend of the next month.

While determining the 1st, 3rd, and 5th weekends of a month under the standard possession order may not be as obvious as one would think, being aware of the effect of those 5th Fridays should help with weekend planning for parents and children alike.

The ABCs of Back to School for Divorced or Divorcing Parents

School bells will soon be ringing in Texas leading to anticipation for students and parents. For divorced or divorcing parents, the Texas Family Code references school repeatedly in regard to both parenting rights and parenting time.

The Texas standard possession order references weekends, holidays, and pick up and return times for possession in terms of when school dismisses or resumes. The family code also provides that parents at all times have the right to be informed and to confer with the other parent regarding the children’s educational decisions, to consult with school officials, to attend school activities, and to be named as an emergency contact for their children.

With that in mind, here are some ABCs for back to school:

Advance Planning: Access the school calendar online and enter on your own calendar the dates and times of school holidays, early dismissal days, etc. This will help avoid confusion and stress on both the parent and the children in regard to pick up and return for parenting time.

Be Involved: As discussed above, the Texas Family Code ensures that parents can be involved in their children’s education, but it is up to the parent to do so. Most school districts now have online portals for accessing information regarding the children’s grades and activities. Some include the opportunity for online communication with the teacher. In addition, there are other opportunities to be involved, such as Meet the Teacher Day, Parent-Teacher conferences, Donuts with Dad, PTA/PTO, etc.

Cooperation: Even with all the planning in the world, expect the unexpected. For example, a child may get sick and need to be picked up from school—and a parent may have to reach out to the other parent to pick up the child. Communication and cooperation between the parents is essential to the shared goal of giving their children the best educational experience possible.

Here’s to a happy, healthy, and successful 2016-2017 school year!