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!

Texas Supreme Court holds payments outside the child-support registry may be considered in determining child-support arrearage amount

Child Support Hearing DocThe Supreme Court addressed a matter of vital concern for many parents in the state of Texas—whether payments other than to a child-support registry will count toward discharging a court-ordered child-support obligation. The Court held that on the facts of this case, in a child-support enforcement proceeding, payments made directly to a child’s school, rather than to the court-ordered registry, will count in the determination of arrearages. This critical family law issue yielded four separate opinions—the majority, a concurrence, and two dissents. What follows will focus on the key takeaways from the majority ruling. But there will be much discussion of all the opinions among the family law bar.

Ochsner v. Ochsner
Supreme Court of Texas, No. 14-0638 (June 24, 2016)
Justice Willett (Opinion): Justice Guzman (Concurring); Justice Johnson (Dissent); Justice Boyd (Dissent)

Read more…

A new addition to the Carrington Coleman family

Family Law at Carrington Coleman—no, your eyes are not playing tricks on you! In fact, I am wrapping up my first year as part of the family wealth group at the firm. Why family law? Because at one time or other most of us will be impacted by a family law matter—either directly as our own matter or that of a family member or close friend. Being attuned to the needs of its clients, Carrington Coleman recognizes the value of having the resources within the firm to address family law issues.

I am honored to be part of the Carrington Coleman team and to be entrusted with the representation of the firm’s clients in the most personal of areas that impact them literally where they live—issues such as where and how they and their children will move forward after life changing events. With twenty-five years as a family law specialist certified by the Texas Board of Legal Specialization, I have dedicated myself to advocating for clients who find themselves at a crossroads in their lives. For more detail on my family law experience, please see my firm profile.

In my decades of family law practice, I have learned that an understanding of the fundamentals of the law is only the first building block in the effective representation of family law clients. That foundation must be built upon with the additional skill set of enhanced communication skills—in both talking with and perhaps even more importantly, listening to clients. In addition, I bring insight as to how the history, nuances, and dynamics of the relationship between the parties can be an integral part of the case. And of course, common sense and problem solving skills must always be included in the mix. I never forget that just as no two families are alike; no two family law matters are alike.

So, with the first year behind us, it was time to roll out the Carrington Coleman family law blog—Home Court. Please stay tuned –in future blogs, I will discuss family law in Texas, the facts not the myths, from established principles going back to the Texas Constitution to the latest court decisions and new legislation. I will also include “ripped from the headlines” breaking news in family law. Family law is one of the fastest changing areas in the law and I promise to keep you up to date with those changes and also to look past the horizon to emerging trends.

Carrington Coleman– book smart, street smart, business smart—and now family law smart!