Houston Divorce Lawyer & Attorney : Cavers Law Firm : Texas Family Mediation & Adoption Lawyer

One of the largest challenges for families is locating affordable, quality health insurance.

Recently, Houston Mayor Bill White, launched a web site HoustonHealthChoice.com to assist individuals, families, and small business in locating just that.

When families are in the transitional process of divorce, and children are involved, the family court will require that the parents provide health insurance for the minor children.

I am hopeful that Mayor White's web site will offer a useful tool for families who earn too much to qualify for CHIP but who cannot afford to buy a private policy. For more information on Mayor White's health insurance web site, see the article from The Houston Chronicle from Wednesday, April 30, 2008.

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During the divorce process, many of my clients are concerned about having to obtain their own health insurance if they will no longer be able to have coverage through their spouse’s employer. If your spouse provides health insurance for you, it will be important to find out the terms of the COBRA coverage which may be available to you. However, if you are in the position of having to obtain your own health insurance, a web site sponsored by the Texas Department of Insurance can be helpful in assisting you make consumer health care decisions. For more information call (800) 252-3439, or visit: TexasHealthOptions.com

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Federal law allows states to collect income tax refund checks from parents who are behind in their child support. If you and your spouse filed a joint federal tax return, and all or part of refund was intercepted to pay for your spouse’s past-due child support, you may be an injured spouse and may be eligible to file an Injured Spouse Claim with the I.R.S. You can make an injured spouse claim if you are not legally obligated to pay the past-due child support, and if you made and reported income and payments, such as federal income tax withheld from your wages or estimated tax payments. During the tax year, if you were a resident of Texas, a community property state, you are eligible to file for an Injured Spouse Claim even if you did not report any income and payments on your tax return. You can make an Injured Spouse Claim by filing IRS Form 8379. For each year that you meet the conditions of an injured spouse, you can file IRS Form 8379 with your joint tax return or amended joint tax return, or you can file it afterwards by itself.

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A parent or conservator may petition the court to order reasonable periods of electronic communication during the time when the child is not with that parent or conservator. Effective September 1, 2007, the Texas Legislature added Section 153.015 (“Electronic Communication with Child by Conservator”) to the Texas Family Code, which allows the court discretion to supplement a conservator’s possession and access to a child by ordering contact via telephone, e-mail, instant messaging or webcam. When considering whether to award electronic communication, the court will examine what is in the best interest of the child, whether electronic equipment necessary to facilitate the electronic communication is reasonably available to all parties, and any other factor the court considers appropriate. Section 153.015 of the Texas Family Code applies to a Suit Affecting the Parent-Child Relationship filed before, on, or after September 1, 2007.

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When parents are divorcing it’s not uncommon for communication to become tense. The most common mistake I see people make is to use their children as “messengers” for topics such as child support, unpaid bills, school activities, and when and how pick-up and drop-off will be accomplished. We’ve all heard the phrase “Don’t shoot the messenger!” Think about this and imagine how your child feels. 

If you and your spouse are not yet at the place where you can have a civil conversation, but must still communicate, try using e-mail. That provides you both with a communication tool that can be used at a safe distance without the tension of face-to-face or over the phone awkwardness. However, be nice in those e-mails and assume they could be the next court exhibit. 

If e-mail is still too hot to handle, another option is software found at www.ourfamilywizard.com. This site allows parents to manage children’s issues, school activities, calendars, and expenses. The site offers a tour and a range of plans. If you’re at your wit’s end, this might be a tool that can help you.

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One question that I am frequently asked is whether or not an ex-husband or ex-wife can "garnish" a new spouse's wages or assets for back child support.  The answer is NO!  If the obligor parent remarries, his/her new spouse is not liable for current or back child support payments.  In fact, the courts cannot consider the wages of a new spouse in calculating child support.

There is, however, one caveat.  If you and your spouse file taxes jointly and you expect an IRS refund check, the Texas Office of the Attorney General is entitled to divert your spouse's portion of the refund to satisfy a child support arrearage.  If you think this might be a problem for you and your spouse, speak to your tax advisor about filing separately. 

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When involved in a suit affecting the parent child relationship, Texas law requires that children have health care coverage. Health insurance coverage continues to rise at an alarming rate, so it is important to know what the law considers to be reasonable. 

In September 2007, the Texas legislature amended the family code to define reasonable cost as follows: “…the cost of health insurance coverage for a child that does not exceed 9% of the responsible parent’s annual resources.” Tex. Fam. Code Section 154.181 (e). 

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One of the recurring questions I receive from clients deals with child support and visitation, and it goes something like this – “I pay child support but the other parent doesn’t let me see my son/daughter. Do I still have to pay child support?” The answer is always, yes.

While it seems unjust to be denied access to your child despite the fact that you pay child support, that is not a basis to withhold support.  First, visitation and child support are mutually exclusive issues, and second, withholding support only hurts the child. 

If the custodial parent is denying access to the child, you may seek to enforce your existing court orders allowing possession and access to your child, or you may file suit to request possession and access, known as a SAPCR (Suit Affecting the Parent-Child Relationship). 

Remember, it is also unlawful for a custodial parent to deny possession and access based on the other parent owing back child support. 

 

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Recently the media went wild with stories about the availability of retail DNA paternity tests from Sorenson Genomicis and Identigene. Like pregnancy tests and cholesterol tests, a DNA tests can now be completed in the privacy of one’s own home. For more information on the product, see http://www.businesswire.com/portal/site/google/index.jsp?ndmViewId=news_view&newsId=20071126005139&newsLang=en. 

The at home kit costs about $30.00, plus there is an additional lab fee of $119.00 that must be submitted with the samples. However, before you run to a Houston-area drug store, be aware of two important facts. First, the tests are presently sold in only West Coast and Midwestern stores. Second (and most importantly) the results of an at-home DNA tests are most likely inadmissible in court to prove or disprove allegations of parentage. This is due to sample collection procedures and chain of custody issues.

Nevertheless, availability of at-home testing is another modern convenience which allows consumers to obtain parentage answers in the privacy of their own home through non-invasive procedures. 

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Many employees have access to pre-tax savings devices called Medical Savings Plans or Medical Savings Accounts. Through such plans, an enrolled employee participant may designate a portion of his/her pre-tax income to be deposited in an account designated for health care. One of the benefits is lowering the employee’s taxable income.  Another benefit is saving for large ticket items such as annual deductibles, surgeries, braces, or other medical services which may not be covered by an insurance carrier.

I used to dislike such plans because withdrawing funds for reimbursement was too burdensome and paper-work intensive for the tax benefit. However, I have heard that many medical savings plans are much more user friendly these days, offering access to the deposited funds through a debit card.  

For older children who take themselves to dental appointments or to the orthodontist, this may be a great vehicle for paying and tracking the child’s medical expenses. 

For more information on such plans, speak to your human resources department or your CPA to learn more about the tax benefits. 

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Besides just sending the other parent receipts for your child’s medical expenses, you should consider writing a brief cover letter to explain what you are sending. This does not have to be typed or fancy. 

A sample letter could be as follows:

*Date*

VIA USPS First Class Mail

VIA USPS Certified Mail, Return Receipt Requested - *certified mail number*

Dear *Parent*:

Enclosed please find receipts for *child’s* medical expenses for the month of *month and year.* My total out-of-pocket expense was *$*. Your portion (*%*) is *$*. 

Please let me know if you have any questions. 

Regards,

*Your name*

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One of the many points of contention for divorced parents is the children’s medical expenses. However, with a little advance planning and organization, much of this controversy can be avoided. 

Whether you are the primary custodian or the non-primary custodian, the starting place is your final decree of divorce. Your decree should include a section that spells out the provisions for health care. Within that section should be precise language stating how co-payments, out of network services, and uninsured medical expenses are to be handled between the parents. Your decree may differ, but usually, the parents split the cost of any medical co-payments, prescription drugs, and uninsured medical bills. 

After reviewing your decree to understand the rules, the next step is to keep good records. If you take the child to the doctor, always request a receipt that clearly shows the cost for the office visit or service, the amount of the co-pay remitted (if any), and the amount to be submitted to the insurance carrier. If you are the parent who took the child to the doctor, then keep a copy of your canceled check or credit card statement to show payment was made. 

An area where I see many of my own clients go off track is notification of the other parent. Do not rely on just verbal notification to obtain reimbursement, and above all do not make your children the messenger that one parent owes the other. Also, do not keep a backlog of these bills and/or send them on a sporadic basis. Instead, provide copies of the billing statements, prescription receipts, etc. to the other parent on at least a monthly basis so he/she knows what was provided and how much he/she must pay. If you anticipate difficulty in getting reimbursed for medical expenses, then it is critical to send copies of all documentation via USPS First Class Mail and via USPS Certified Mail, Return Receipt Requested. If the other parent does not pick up certified mail, and if the regular mail was not returned to sender for a bad address, then the presumption is that the parent received the bills. This is very important evidence should you need to file an enforcement action against the other parent.

To reiterate, the keys are:  (1) knowing the rules established in your divorce decree, (2) keeping good records, (3) communicating effectively, and (4) maintaining proof of those communications.    

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The public’s perception of lawyers has historically been low, and evidence of that can be found by reading Shakespeare’s Henry VI (Part 2). The famous passage reads “The first thing we do, let’s kill all the lawyers…” Modern day drama (both TV and movies) helps to perpetuate the role of the attorney as a less than scrupulous member of society. However, my view is that the individual determines how he/she operates as a professional. In fact, I go over the Texas Lawyer’s Creed with each of my clients before we begin working together. 

The creed is broken into three parts – (1) Lawyer to Client; (2) Lawyer to Lawyer; and, (3) Lawyer to Judge. This post focuses on how the lawyer should interact with his/her client.

                A lawyer owes to a client allegiance, learning, skill, and industry. A lawyer shall employ all appropriate means to protect and advance the client’s legitimate rights, claims, and objectives. A lawyer shall not be deterred by any real or imagined fear of judicial disfavor or public unpopularity, nor be influenced by mere self-interest.

1.       I will advise my client of the contents of this creed when undertaking representation.

2.       I will endeavor to achieve my client’s lawful objectives in legal transactions and in litigation as quickly and economically as possible.

3.       I will be loyal and committed to my client’s lawful objectives, but I will not permit that loyalty and commitment to interfere with my duty to provide objective and independent advice.

4.       I will advise my client that civility and courtesy are expected and are not a sign of weakness.

5.       I will advise my client of proper and expected behavior.

6.       I will treat adverse parties and witnesses with fairness and due consideration. A client has no right to demand that I abuse anyone or indulge in any offensive conduct.

7.       I will advise my client that we will not pursue conduct which is intended primarily to harass or drain the financial resources of the opposing party.

8.       I will advise my client that we will not pursue tactics which are intended primarily for delay.

9.       I will advise my client that we will not pursue any course of action which is without merit.

10.   I will advise my client that I reserve the right to determine whether to grant accommodations to opposing counsel in all matters that do not adversely affect my client’s lawful objectives. A client has no right to instruct me to refuse reasonable requests made by other counsel.

11.   I will advise my client regarding the availability of mediation, arbitration, and other alternative methods of resolving and setting disputes.

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On November 6th, Harris County citizens have the opportunity to vote on many important issues.  One that I wish to bring to your attention is Proposition No. 5, regarding a bond to fund construction of a new family law courthouse. 

Trey Yates, Chair of the Houston Bar Association Family Law Section  wrote an outstanding summary of the issue to the members of the Houston Bar Association, which I include below.  I urge you to vote on November 6th. 

            On November 6, the citizens of this county will have the opportunity to vote on several bond proposals, one of which concerns the funding of a new Harris County Family Law Center. I urge you to support the passage of the Harris County bond issue, Proposition No. 5.

            The approval of this bond will ensure that Harris County families are no longer forced to resolve family law issues in an overcrowded, outdated and unsafe facility. Virtually every person in this city has been or will be affected, directly or indirectly, by a family dispute resolved in our Family Law court system. The current Harris County Family Law building was completed in 1969 and originally housed three family law courts. Today the same building has nine family district courts each with an elected family law Judge, an associate Judge and a court staff; plus four additional courts each containing judges who handle attorney general child support cases plus a court staff. These judges serve approximately 120,000 litigants per year (1 ½ times the number of Harris County civil courthouse filings and 10,000 more cases per year than the criminal courts). A review of various options determined that remodeling the facility would not be cost-effective due to the inefficient design of the current facility.

            Today, attorneys and their clients must discuss complex and confidential case issues in crowded hallways without any privacy, and anyone can access nearly any current or past family case file. Victims of family violence are forced to stand unprotected and in close vicinity to the perpetrators of the violence. In a full courtroom, the victims are seated across a small aisle from their perpetrators, with one bailiff to control a crowded courtroom. Children, while testifying, must face their parents in an adversarial environment.

            A new facility would provide the citizens of this county with an updated, state of the art building which will offer the necessary services under one roof, impossible in the current structure. The new facility would have separate entrances for domestic violence victims; improved security; conference rooms to ensure privacy; immediate testing facilities for drug and alcohol testing; separate rooms to allow video testimony by children in a less intimidating environment; and offices for the Harris County Domestic Relations office which offers free court ordered mediations as well as investigations and preparation of social studies in contested custody matters; along with other support facilities. Although these services are currently available to families, they are in separate facilities, making access difficult and more expensive. The new facility will bring these services under one roof, allowing for an efficient and cost effective utilization of services.                                

            Voting “FOR” the Harris County bond issue Proposition 5 on November 6, 2007 will ensure that the current, outdated and sub-par facility is replaced by a new Harris County Family Law Center which is cost-efficient and safer. As with the other Harris County bond issues, there will be no tax increase associated with this bond issue. I urge your support of Proposition 5.

Sincerely,

Sam M. (Trey) Yates, III

Chair, Houston Bar Association Family Law Section

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Recently I learned that it’s standard operating procedure for banks to retain customer account records for only seven years. Some clients have child support obligations that run up to 18 years, so the moral of this story is not to rely on the bank for proof that you paid child support. Be a geek and wear both a belt and suspenders!   

It’s rare to get a bank statement with your actual canceled checks anymore, but most banks at least provide scanned images. Hold onto these records in your safe deposit box or place where you keep important documents until after your final child support payment is made and an account audit shows a zero balance.

Just this month a client who religiously paid child support (directly to his ex-wife rather than the registry), was served with an enforcement action after his child graduated high school. After pouring through years of canceled checks and statements, we ended up proving the majority of the payments were made. But, it put the client in a bad position to scramble for old documents on short notice. 

The other moral to the story is not to make child support payments directly to the custodial parent. 

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One way clients get off track with child support is by making informal payments to the custodial parent, rather than making payments through the local child support registry, or the Texas State Disbursement Unit (SDU). 

It is hard to say “No” when the custodial parent requests or demands child support money on the spot (often in the presence of the child) to buy him/her a new pair of soccer cleats, a cheerleading uniform, etc. However, to keep yourself on track with the SDU, just say NO – unless you’re okay with never getting credit for the payment.

When the obligor pays cash directly to the custodial parent, there is no method for that payment to be accounted for by the SDU – even if the custodial parent provides you with a receipt. For all practical purposes, it’s as if that payment never occurred. 

Later on, if the custodial parent seeks enforcement of child support through the Office of the Attorney General or through a private attorney, there is no proof the obligor made those cash payments. When I explain this to clients, they feel cheated and upset, often citing the “do right” law. Unfortunately, these clients don’t appreciate the formalities of evidence and the legal system. What is acceptable in the every day world fails to meet legal standards in court, and that’s what counts in child support enforcement actions. 

If the custodial parent needs extra cash for child related expenses that crop up, it’s best to make an extra payment through the local registry or SDU. That way, the parent’s child support account is promptly credited with the money, and there is an official record of the payment. 

Of course, there are times when child related expenses can’t wait. Just beware that if you pay child support outside the SDU, be prepared not to receive any official credit for it in court. 

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When a family court sets child support, the parties’ and their attorneys are responsible for establishing an account with either the local child support registry or Texas Child Support State Disbursement Unit (SDU) in San Antonio, Texas. A central purpose is to provide a neutral third party to monitor the obligor’s payments and report arrearages to the Office of the Attorney General. While many of my clients groan about paying child support through the SDU (or through wage withholding) rather than directly paying the custodial parent, I remind them that the account eliminates future disputes between the parents, if used properly. 

Child support registries and the SDU are run by humans, and as we know, humans are subject to making mistakes. Whether you are the child support obligor or obligee, I highly encourage you to request an audit of your child support account at least every two years. This is as important as checking the accuracy of your credit report on a regular basis. 

If an error is made in the account, it is far better to clear it up sooner rather than later. Little is as frustrating as pouring over pages of child support history and trying to reconcile obligations, credits, missed payments, and interest charges. 

Another quick check is to review your pay stub deductions. If you are the obligor parent, verify that your employer is deducting the correct amount from each check. If the employer is not deducting enough, it is ultimately the obligor’s responsibility to make sure the proper amount is paid. 

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In the Houston area the Harris County Child Support Registry, Office of the Attorney General, and Harris County Domestic Relations Office enacted the FOCAS Program.  FOCAS stands for Focus on Collections and Services.  A main objective of the FOCAS program is to monitor the collection of child support obligations from the non-custodial parent and to contact him/her if he/she falls behind in child support payments. 

The FOCAS program's services also include locating the non-custodial parent, enforcing existing child support orders, enforcing medical support orders, and even collecting child support through the interception of IRS tax refunds. 

For more information on FOCAS, visit www.hcdistrictclerk.com/Child_Support/focas.aspx

 

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My office receives at least 5-6 telephone calls or e-mails each week from individuals with serious family law problems who cannot afford to retain an attorney.  I commit myself to taking on at least 3 pro-bono cases each calendar year in the family law and/or probate because I believe attorneys should give back to their community, and for the personal satisfaction I feel in helping someone who would otherwise have gone without legal help.  Many of my colleagues take on pro bono cases, but unfortunately, we cannot assume pro bono cases for everyone who contacts us.

Fortunately, there are other sources of assistance for individuals needing legal assistance.  One such organization is the Houston Volunteer Lawyers Program (HVLP).  HVLP takes cases involving bankruptcy, consumer law, family law, property, tax, wills and probate, and HIV/AIDS issues. 

The HVLP office is located at 712 Main Street, Suite 2700, Houston, TX 77002.  Their phone number is (713) 228-0735. 

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Whether you are the party paying child support (the obligor) or the party receiving child support (the obligee), there are times when you will need to obtain information on your account, such as a history of payments, or if there is an amount in arrears. 

To contact the Harris County local child support registry, you may visit the ground floor of Family Law Center located at 1115 Congress, Houston, TX 77002 between the hours of 8:00 a.m. and 4:00 p.m. Monday through Friday, contact them by phone at 713-755-607, or visit the web site at www.hcdistrictclerk.com/FAQ/faq.aspx#CS

I highly recommend visiting the web site before making a trip downtown.  You may be able to take care of your issue(s) on-line.  If you must go to the office, the web site will give you an idea of what information and/or documents you should take with you before going to the Family Law Center. 

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"Shopping" for an attorney to represent you in a legal matter can be a daunting task.  The Yellow Pages are chalked full of advertisements, which often leaves the person seeking an attorney at a loss for where to start.  Sometimes, my office receives calls and the caller does not really know what type of legal problem he/she has or what kind of lawyer he/she needs. 

Beyond throwing darts or selection through "Eenie Meenie Minie Moe," try contacting the Houston Lawyer Referral Service for guidance. 

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Parents interested in learning more about parenting coordinators may wish to review a recent article by Rachel Emma Silverman of The Wall Street Journal entitled A Referee for Mom and Dad. 

The article discusses the scope of a parenting coordinator's responsibilities, as well as how their participation in family cases may be a benefit or a burden. 

To learn more visit:  online.wsj.com/article/SB119016372021831914.html

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If you’re a divorced or divorcing parent you know that the Standard Possession Order addresses the “major” holidays such as Thanksgiving, Christmas, and both Mother’s and Father’s Day. However, the Standard Possession Order is blueprint from which parents and their attorneys may build a custom plan for the family. Remember, long after the ink is dried on the divorce orders, you, your child, and ex spouse have to live with the order – so take the time to ask for the things important to you. 

If you have young children and you enjoy watching them dress up for Halloween and participate in carnivals or school activities, ask your attorney to include this in your parenting plan. Parents can either share responsibilities for Halloween, or trade-off Halloween just as divorced parents do with Thanksgiving (i.e., primary conservator to has child for Halloween in even numbered years, while possessory conservator has child in odd numbered years). 

Over the years, many parents have asked me to add special provisions to the Standard Possession Order, such as Halloween, Easter, and special holidays for other religious groups. 

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A recent post in the Oklahoma Family Law Blog presented by Dan Nunely, deserves consideration by Texas parents going through divorce. 

In her article The Devastation of Divorce, Trish Berg states that children of divorce suffer a myriad of losses when their parents divorce. Ms. Berg points out that it’s difficult to understand the impact divorce has on the children's lives until we examine the losses they suffer in this process. She lists the following five main losses children experience during divorce:

1. Loss of Dad - When parents divorce, typically the dad leaves the home, and may not be present much in the lives of the children. This causes an emotional vacuum for the children, and they may feel rejected, alone, and unloved, no matter how much the single parent loves them.

2. Loss of Money – When dad leaves, so does a lot of the money. Economic resource are, at best, cut in half, at worst, single parent families live in poverty.

3. Loss of Security – Kids of divorce often move to a new, smaller home, in a new town, with a new school. They now have to visit their dad. If mom and dad then begin dating, an entirely new stress is added to their lives. Their sense of stability and security is shaken as their world has forever changed.

4. Loss of Harmony – Many kids whose parents divorce feel caught in the middle. The fighting may have stopped, but now Mom may talk negatively about dad, and dad may gripe about mom, all in front of the kids. Parents may play games with visitation, and hold the children as emotional ransom. This loss of harmony causes tremendous chaos and stress for kids.

5. Loss of Simplicity – Life for children of divorce can get very complicated. They have to schedule everything they do, and remember what weekends they are visiting dad so they don’t play in a soccer league with games then. They have to split heir holiday time - Christmas Eve with dad, Christmas morning with mom. And when life events hit, they have to worry about mom and dad being in the same place. Who will come to my eighth grade graduation? Will they see each other? Will they fight? Family life is now complex and chaotic, and that will last for the rest of their lives.

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On weekends, I like to write about the lighter side of parenting issues.  While doing some pre-holiday toy research for my 20-month-old nephew, I began to ponder what parents do when their child's favorite toy has been recalled.  I conjured up many nightmare scenarios, but found an excellent set of suggestions through Parenting Magazine. 

If the toy recall drama should affect your household, I hope you find these tips helpful.

www.parenting.com/parenting/article/0,19840,1653070,00.html

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Each fall the University of Houston Law Center hosts a public workshop called "The People's Law School."  This is an excellent forum wherein the non-lawyer can learn about legal proceedings and procedures that affect him/her on a personal level.  Historically, the most popular classes have been family law and consumer law. 

If you cannot afford an attorney, or if you feel you can handle a family proceeding yourself with a little guidance, then I highly recommend taking advantage of this educational opportunity from one of the country's top law schools.

If you missed this year's presenation, keep this in mind for next fall.  Visit the People's Law School at  www.law.uh.edu/peopleslaw/. 

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These days we live in a more mobile society, and issues such as moving and relocation are ever increasing in the family law realm. A helpful article from Kid’s Health was recently posted by the Missouri Family Law Blog, which I post here for your review and consideration.

Sooner or later, many families face the prospect of moving. Disruptive as moving can be for parents, the experience can be even more traumatic for kids, who may not be a part of the decision to move and may not understand it.

Kids may need some time and special attention during the transition. You can take steps to make the entire process less stressful for everyone.

Making the Decision to Move

Many kids thrive on familiarity and routine. So as you consider a move, weigh the benefits of that change against the comfort that established surroundings, school, and social life give your child.

If your family has recently dealt with a major life change, such as divorce or death, you may want to postpone a move, if possible, to give your child time to adjust.

The decision to move may be out of your hands, perhaps due to a job transfer or financial issues. Even if you're not happy about the move, try to maintain a positive attitude about it. During times of transition, a parent's moods and attitudes can greatly affect kids, who may be looking for reassurance.

Discussing the Move With Your Child

No matter what the circumstances, the most important way you can prepare your child is to talk about it early and often.

Try to give your child as much information about the move as soon as possible. Answer questions completely and truthfully, and be receptive to both positive and negative reactions. Even if the move means an improvement in family life, kids don't always understand that and may be focused on the frightening aspects of the change.

Involving kids in the planning as much as possible makes them feel like participants in the house-hunting process or the search for a new school. This can make the change feel less like it's being forced on them.

If you're moving across town, try to take your child to visit the new house (or see it being built) and explore the new neighborhood.

For distant moves, provide as much information as you can about the new home, city, and state (or country). Learn where your child will be able to participate in favorite activities. See if a relative, friend, or even a real estate agent can take pictures of the new house and new school for your child.

Moving With Babies, Toddlers, and Preschoolers

Kids younger than 6 may be the easiest to move, as they have a limited capacity to understand the changes involved. Still, your guidance is crucial.

Here are ways to ease the transition for young kids:

• Keep explanations clear and simple.
• Use a story to explain the move, or use toy trucks and furniture to act it out.
• When you pack your toddler's toys in boxes, make sure to explain that you aren't throwing them away.
• If your new home is nearby and vacant, go there to visit before the move and take a few toys over each time.
• Hold off on getting rid of your child's old bedroom furniture, which may provide a sense of comfort in the new house.
• Avoid making other big changes during the move, like toilet training or advancing a toddler to a bed from a crib. 
• Arrange for your toddler or preschooler to stay with a babysitter on moving day.

Continue Reading...

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Many of my blog topics talk about Houston resources for family law. However, I wish to turn my attention to areas North of Houston in Montgomery County, such as Conroe and Magnolia.   

A good resource for divorcing parents is The Montgomery County Family Outreach Center. The center is located at 812 West Dallas, Suite 150, Conroe, Texas 77301. The center offers the basic parenting class required by Texas family courts, along with other classes such as parenting in blended-families, anger management, and parenting exceptional children. 

For more information on the services available, visit http://resourcesforparents.org/contact.html

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One of the quickest ways to anger a family law judge is to bring a child into the courtroom without express permission. I’ve seen it happen at the Harris County Family Law Center on several occasions, and the result is always the same. The party who brought the child to court receives a stern “talking-to” from the bench. Though family law often revolves around children and children’s issues, the rule of thumb is to NEVER bring a child to court or into the court room unless expressly instructed to do so by the judge or your attorney. 

There are many good reasons for this. First, children who are school aged should be attending school – not missing school to attend court. Second, divorce and other family matters involve high conflict, which is better left for the adults and not for children to experience at court. Third, court is an intimidating place even for adults. Imagine how a child would feel coming to a strange place where people he/she does not know will make decisions about the most personal parts of the his/her life.  Finally, the subjects discussed in family court are sometimes rated PG-13, R, and at times X! Such topics (and language) are not appropriate for children of any age.

Obviously, there are exceptions to the general rule of thumb, such as when the judge wishes to interview the child in chambers, or during a final hearing in an adoption case. These are times when the judge wants input from the child, and the court staff makes special arrangements to ensure the child will have a good experience in court. 

The Houston-area family law judges are not mean people. They are charged with protecting the best interests of children in family cases, and to carry out this duty, the policies about bringing children to court must be strict. Rely on your attorney to provide direction on this. If you are a pro se litigant, then call the court clerk or coordinator to ask about the court’s policies concerning the presence of children. 

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An important question I ask of all clients is whether they have a secure e-mail address and a "safe place" to receive mail from my office.  When spouses are in the beginning phases of the divorce process, accidentally alerting the other spouse to divorce plans can have a negative impact ranging from tipping one's hand early too early or up to and including domestic violence in extreme cases.

If you plan to correspond with your attorney via e-mail, make absolutely sure that your spouse cannot access your e-mail account.  You might consider changing your password or opening a new e-mail account. 

In terms of "snail mail," you might consider renting a PO Box through a United States Post Office location or a private company such as the UPS Store, or Mailboxes, etc.  This is an inexpensive way to make sure your confidential communications with your attorney are not compromised.

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Last week, the Family Law Prof Blog posted an interesting update on the status of same sex couple adoption in Maine.  I pass this on for those interested in the topic.

The Maine Supreme Judicial Court ruled unanimously today that state law does not preclude unmarried couples from jointly petitioning to adopt a child.  The case involved a lesbian couple who had petitioned to adopt a 10-year-old girl and her 6-year-old brother, for whom the couple had been foster parents since 2001.

The court decided the case solely as a matter of statutory construction, reasoning that if it read the statute to prohibit joint petitions by unmarried persons, the statute would still clearly allow successive petitions by unmarried persons, leading to the same end result.  "With this in mind, construing section 9-301 as prohibiting a joint petition by unmarried persons elevates form over substance to an illogical degree."  In terms of reading the statute to effectuate the purposes of adoption law, the court noted that joint petitions serve the best interests of children in a variety of ways, by insuring continuity of care should one parent die, by enabling access to  broader range of benefits from two parents rather than one, and "Most importantly, a joint adoption affords the adopted children the love, nurturing, and support of not one, but two parents."

Adoption of MA  (Maine Supreme Court August 30, 2007)
Opinion online (last visited August 30, 2007 bgf)

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This is a worthwhile post recently seen on the Georgia Family Law Blog.

Ruben Francia has an article posted on Your Child - Your Divorce which looks at the best appropriate divorce parenting practices for school-age children. It is well-worth a full read.

Here is his list of some divorce parenting practices that are best for your child:

· Explain what is happening over and over again. Children this age are confused easily. In simple terms, explain where your child will live, with whom, where the departing parent will live, and who will provide care when both parents are unavailable.

· Encourage your child to talk about how he/she feels. Be sensitive to children’s fears. Let your child know that he or she can openly talk to you about the ups and downs of your separation or divorce.

· Read books together about children and divorce. Use books to help your child talk about feelings.

· Answer all questions about the changes, and keep lines of communication open. Make sure your child feels like he or she can ask you questions and get answers about why the divorce happened and what to expect.

· Plan special time together. Set aside special time to spend with your child but be careful not to make promises you may not be able to keep.

· Repeatedly tell children that they are not responsible for the divorce. Children need to be reassured that the breakup wasn’t their fault.

· Reassure children of how their needs will be met and of who will take care of them.

· Reassure children that everything will be ok, just different. Children are invariably frightened and confused by divorce. It’s a threat to their security. Provide extra hugs and kisses and tell your child that you and other adults will always be near to love and protect

· Talk to your child’s day-care provider about the divorce. She will better understand your child’s possible regressive behaviors and will likely offer extra support.

· Talk to your child’s teachers or school counselors about the divorce. They may then better understand possible learning or behavioral problems and will likely offer extra support.

· Keep daily routines intact. Children feel more secure when there is a standard routine. Stick with bedtimes, no matter at which home the children are. Have some consistent chores. Have some time committed to the child, which is treated as sacred.

· Respect, but monitor, your child’s privacy.

· Discourage reconciliation fantasies. Avoid dinners, outings, or holiday celebrations with your ex-spouse; they only fuel your child’s fantasies. Instead, emphasize the finality of divorce

· Be sensitive to children signs of depression and fear. Seek professional help if depression is prolonged or intense.

· Help non-custodial parent stay involve. Let non-custodial parent maintain a regular presence such as a phone call several times each week, messages sent on video or audiotapes.

· Plan a schedule of time for children to spend with their other parent. Be supportive of children’s ongoing relationship with the other parent. Remember that children generally fare best when they have the emotional support and ongoing involvement of both parents.

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Now that we're past Labor Day, Houston area students are back in school, which can provide some additional stress for co-parenting in a divorced household.  The Houston Chronicle has introduced a new blog to keep parents in touch with what's going on in area schools.  For more information, visit blogs.chron.com/schoolzone/2007/08/introducing_parents_cheat_shee.html.

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The Federal Office of Child Support Enforcement provides an excellent informational web site to assist parents and child conservators locate parents who have failed to meet their child support obligations. With the advent of the information age and data sharing among states and the federal government, tracking down child support evaders has gotten more efficient. For more information, see http://www.acf.hhs.gov/programs/cse/newhire/  

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In Texas public policy dictates that children should have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child and provide a safe, stable and non-violent environment for the child. Further, it is the policy of this state to encourage parents to share in the rights and duties of raising their children – even after the parents have separated or dissolved their marriage. 

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Section 101.016 of the Texas Family Code defines “Joint Managing Conservatorship” as the sharing of the rights and duties of a parent by two parties, ordinarily parents, even if the exclusive right to make certain decisions may be awarded to one party.

Under Texas law it is presumed that the best interests of a child is served if the parents are appointed Joint Managing Conservators (JMCs) so long as doing so would not significantly impair the child’s physical health or emotional well-being. For instance, if a court finds that one of the spouses has a history of domestic violence, then the JMC presumption would be rebutted.

Even though Texas courts generally award joint managing conservatorship, one parent over the other is usually given the primary right to designate the child’s residence based on a geographic restriction, such as Harris County and the surrounding contiguous counties. 

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Due to new rules requring persons traveling from the US to Mexico, Canada, the Caribbean and South America to have a passport, child support registries across the country have seen an uptick in collections.  According to a recent article published in the New York Times, the US State Department will deny a passport to a parent who owes $2,500 or more in unpaid child support.  When a child support obligor needs to travel for business or pleasure, it's amazing how quickly the obligor can come up with the money.  For more information, see the New York Times article at http://www.nytimes.com/aponline/us/AP-Passports-Child-Support.html?ex=1187841600&en=34cd324319326e6a&ei=5070&emc=eta1. 

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With the war in Iraq and the diversity of the US armed forces, many parents have gone off to combat zones, which creates complexities in parenting for mothers and fathers alike. In 2003 Congress adopted the Servicemembers Civil Relief Act (SRCRA), replacing the Soldiers’ and Sailors’ Civil Relief Act of 1940. 

The SRCRA limits a court’s jurisdiction to grant a default judgment, offers remedies for the servicemember when he/she is confronted with a suit or judgment, and may impose a stay on legal proceedings while the servicemember is on active duty.  

To learn more about protections under the SRCRA, visit http://www.uscg.mil/legal/la/topics/sscra/about_the_sscra.htm

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To compare child support obligations in all 50 states, Guam and Canada, visit the following web site:  http://www.supportguidelines.com/main.html. 

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Family law cases by nature are emotionally charged, and as a result, the parties are emotional. Despite the overwhelming urge a party may have for vindication, revenge or proving every point, there are basic rules of behavior that the parties must observe while in the court room. 

The parties should not:

• speak while court is in session unless questioned by his/her attorney, opposing counsel, or the judge; and,
• engage in arguments with the opposing party, opposing counsel, or the court inside the courtroom. 

The parties should:

• control his/her facial expressions and body language in court;
• dress professionally while attending court;
• answer only the question asked and not include any other information not responsive to the question; and,   
• stop talking when an objection is raised.

It is crucial for the parties to demonstrate restraint and good judgment in court. Rolling the eyes, putting hands on hips, heavy sighs, or other mannerisms do not go unnoticed by the judge or jurors. 

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Establishing a positive working relationship with your attorney is very important in all cases, but especially so in family law where the stakes are high and personal. Most clients hire an attorney because they do not have the legal expertise necessary to represent their interests. Though the client has the final call as to the objectives of representation, whether the case settles, and whether the case goes to trial, it is the attorney who determines the methods for achieving the client’s stated objectives.

For example, the attorney has the final say on what evidence is introduced (or not introduced), the legal arguments to make, trial tactics, what witnesses to call, and the examination of witnesses. 

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After the ad litem is appointed by the court, he/she is required by statute to: (1) interview the child in a developmentally appropriate manner if the child is four years old or older; (2) interview each person who has significant knowledge of the child’s history and condition; (3) investigate the facts of the case to the extent the attorney ad litem deems appropriate; (4) obtain and review copies of relevant records pertaining to the child; (5) participate in the litigation as the other attorneys do; (6) take any action consistent with the child’s interests that considers necessary to expedite the proceedings; and, (7) encourage settlement and the use of dispute resolution. 

Additional duties of the ad litem include eliciting the child’s goals of representation, advising the child, provide guidance to the child, and represent the child’s expressed objectives if the ad litem determines that the child is competent. 

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In divorce cases where the parents cannot come to an agreement over custody issues, the court often appoints an attorney to represent the child. When parents are in turmoil, sometimes they are unable to put aside personal differences.  The court appoints an ad litem to provide legal services to the child, and the ad litem has the duties of undivided loyalty, confidentiality, and competent representation. 

An ad litem attorney usually charges the same or similar hourly rates as the attorney for each parent. When the court must appoint an ad litem, the parties are required to pay the costs for this representation. In the Houston area, the cost for this attorney could be anywhere from $1,500 to $5,000 depending on the complexity of the custody case. In very limited circumstances, ad litem attorneys are available through volunteer organizations. 

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I spend many work days at the Harris County Family Law Center in Houston, Texas. Even though few things shock me, I am continually irritated by what litigants and even some attorneys wear to court! A court of law, along with the judge, jurors, court personnel, attorneys, and other litigants, are entitled to respect; part of showing respect for the court is dressing appropriately. This does not mean a person has to be rich or spend lots of money. My grandmother always told me “As long as you’re clean and dressed in your Sunday best, you should never be ashamed to go anywhere.” This common sense approach will go a long way to making a good presentation to the court.  

What one wears makes a statement about who he/she is. Remember that a judge and/or jury will make very important decisions about the life of a family law litigant. One can never go wrong wearing professional business attire such as a suit. If a suit is not in the wardrobe, then consider a collared shirt, slacks, skirt, or nice dress. Things one should NEVER wear to court include, but are not limited to: jeans, mini skirts, shorts, tube tops, halter tops, t-shirts, sweat pants, hats, and flip flops. 

A wise attorney once told me that criminals have a constitutional right to wear nice clothes to court, so shouldn’t civil clients do the same!