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

At times in my family law practice, a family member will call me seeking a reference for another area of law such as DWI or criminal defense. I do not practice in those areas of law myself so I typically refer them out to another attorney.  My next door neighbors are Houston DWI lawyers and criminal defense specialists which have members on staff that are board certified in those areas. The Grant Scheiner Law Firm, PC is a great source if you are looking for assistance in those areas.  Link: Grant Scheiner Law Firm, PC

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Texas voters overwhelmingly approved a constitutional amendment prohibiting marriage between individuals of the same sex, and about 43 other states also prohibit same sex marriage. However, nine other states recognize civil unions, and in 2004 Massachusetts approved provisions allowing same sex marriage.

The questions are (1) if same sex partners can marry or enter into civil unions in certain states, how can these marriages and unions be undone; and, (2) what is the impact if the parties relocate to other states? These are not easy questions to answer, as an April 15, 2008 article in The Houston Chronicle noted.

Same sex couples married in Massachusetts are finding that other states will not permit them to seek dissolution. Additionally, couples who later relocated to another state find that if they do not meet the domicile and residency requirements under the Massachusetts family code, the state will not permit dissolution suits to move forward. While this may seem to be an unnecessary road block, the state has a legitimate interest in denying relief to parties who are not domiciled in the state. There are also constitutional considerations – the court can only adjudicate a matter if it has jurisdiction over the parties and issues. According to sources at The Houston Chronicle, to establish domicile in Massachusetts one must reside there for at least 12 months.  

Though same sex marriage and civil unions are hot topics, they recognized by a minority of US jurisdictions. With a highly mobile society, many of couples will find themselves relocating from the states where they entered into the marriage or union, and perhaps seeking assistance under the law to terminate the relationship. It is just a matter of time and parties making a constitutional argument. At some point laws of the various states (Texas included) must address issues of division of property, conservatorship and custody in same sex marriages/unions.

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Effective January 1, 2008, Texas judges will have another tool to combat domestic violence. That tool is a powerful one – the denial of bail to an accused if he/she violates a protective order or is charged as a repeat domestic violence offender (misdemeanor and felony). 

Texas Representative Joe Straus, III of San Antonio authored House Bill 3692, which was approved as a state constitutional amendment by 84% of Texas voters in November 2007.  

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The Houston Area Women’s Center (HAWC) has provided services to women and children in crisis since 1977. Included among the many services the center provides are: 24/7 hotline for domestic violence and sexual assault; 125 bed shelter; counseling; educational outreach; advocacy; and youth services. Assistance is available in both English and Spanish.

If you need assistance, the hotline numbers are as follows:

Domestic Violence - 713-528-2121

Sexual Assault – 713-528-7273

For more information on the Houston Area Women’s Center, visit their web site at www.hawc.org. 

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Recent news stories about the safety of children's toys and other products prompted me to make this blog post.  US toy manufacturers have had to recall popular children's toys contaminated with lead paint, and more recently, certain baby cribs were recalled. 

A good source of information is the Consumer Product Safety Commission.  www.cpsc.gov

For more information, refer to the story from Saturday, September 22, 2007 in The Houston Chronicle, which can be found at www.chron.com/disp/story.mpl/ap/business/5155882.html

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Research conducted in 2000 by The Bureau of Justice Statistics indicates young adults between the ages of 16 to 24 experience the highest rate of intimate partner violence. Prior to 2001, individuals who were victims of dating violence had little, if any remedy under the law. If the victim and perpetrator had not been married, lived together (informal marriage), or had a child together, the victim was not eligible to seek a protective order.

Realizing the lack of protection for this segment of the population, the Texas legislature responded by adding provisions to the Texas Family Code defining dating violence and providing remedies at law. Section 71.0021 defines dating violence. To qualify for protection under the statute, one must have been in a dating relationship with the alleged perpetrator. A dating relationship means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. Factors that determine the existence of a dating relationship include: (1) length of the relationship; (2) nature of the relationship; and, (3) the frequency and type of interaction between the persons involved in the relationship.

A mere casual acquaintanceship or ordinary fraternization in a business or social context does not qualify as a “dating relationship” under the family code. 

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Though some U.S. states and foreign nations recognize civil unions between same sex couples, Texas is not one of those jurisdictions. In fact, Article I Section 32 of the Texas Constitution prohibits same sex marriages. 

Despite this provision in the Texas constitution, same sex couples form family units and require legal protection just as heterosexual couples. Unfortunately, the Texas Family Code sections dealing with marriage, separate property, community property, spousal support and divorce have no application to same sex couples. Therefore, it is important for same sex couples to create their own protections by expressing their intentions, agreements and expectations in a written contract.  

The answer is found in contract law. Same sex couples may tailor their individual solutions through the formation of an enforceable contract. Such contracts are generally referred to as domestic partnership agreements. A domestic partnership agreement is as unique as the couple it serves, but the agreement should at least address the following: (1) identify the parties to the agreement; (2) identify the property at issue and ownership of that property; (3) contemplate the potential for dissolution of the relationship through a break up; (4) contemplate the death of either party; and, (5) dispute resolution options such as mediation, arbitration, collaborative law, and litigation, if necessary. 

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Unfortunately, family violence is a reality in our society. It afflicts men, women, and children regardless of age, race, and socio-economic status. Often victims are too afraid or ashamed to ask for help. I encourage persons who are victims of domestic violence to seek help as soon as possible. 

Often the abuser controls financial resources, so the victim feels helpless to seek assistance. In that vein, I direct persons to the Texas on-line protective order kit. 

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During the divorce process, parents often find themselves at odds over numerous issues. Unfortunately, many children find themselves in the middle of a war zone. This is precisely why standard injunctions included temporary orders specifically forbid the parents from making disparaging remarks about the other parent in the presence of the children, or within earshot of the children. 

Courts and family law judges are sensitive to the best interest of the children, which does not include the exposure to derogatory statements about either parent, or other family members. Judges tend to be very protective of children during this process, and if the court finds evidence of deliberate efforts by either parent to alienate the children from the other parent, there can be serious consequences up to and including jail time. Court orders have teeth, and family judges have been known to bite when parents are behaving badly. 

Examples of deliberate parental alienation include: preventing the children from spending time with the other parent; urging the children to disrespect the other parent; making comments in front of or near the children that would cause the children to lose respect for the other parent; name calling; instigating arguments in front of the children; and subtle behaviors such as throwing away an otherwise appropriate gift the parent gives a child. 

Tensions run high during divorce, and these tensions can continue even after the divorce is final. If you have children, learning to co-parent with your Ex is crucial to the well-being of your children. Even if Mom and Dad no longer live together, they never take off their team jerseys as parents. 

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A parent absconding with a child is a frightening thing when it occurs in your own country. However, when a parent abducts a child taking him/her to a foreign country, or wrongfully retains the child in a foreign country, the physical distance is only one of the complexities. 

In 1980, the US and other nations implemented the Hague Convention on the Civil Aspects of International Child Abduction. One of the main purposes is to protect children from the harmful effects of their wrongful removal or retention in a foreign country. In 1988 Congress adopted provisions to implement the protections of the Hague Convention under the International Child Abduction Remedies Act (ICARA). 

If you suspect that your child has been wrongfully removed from your custody and taken to a foreign country, the first things to do after calling law enforcement, are determine whether the country is a member of the Hague Convention, and work with your attorney to report the abduction or wrongful retention to the State Department’s Office of Children’s Issues. You and your attorney would submit an application for assistance under the Hague Convention. Form DS-3013. 

Another preliminary step involves filing a petition for relief in a state and/or federal court with jurisdiction over the child custody action. The legal issue will not be what is in the child’s best interest, but which jurisdiction should hear the matter. For example, which jurisdiction should hear the custody matter – the courts from where the child was taken, of the courts where the child is currently located? There are at least three elements that the petitioning parent must demonstrate: (1) the child was abducted from his/her country of habitual residence; (2) the petitioning parent had custody of the child at the time the child was wrongly removed and/or retained; and, (3) the petitioning parent was exercising his/her custodial rights at the time the child was removed. See 42 U.S.C. § 11603 (e) (2) (A) (West 1998). 

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According to data from the United States Department of State, since the late 1970's approximately 16,000 children have either been abducted from the United States or prevented by one of their parents from returning to the United States.travel.state.gov/family/abduction/abduction_580.html  The advent of the Internet, e-mail, and a global economy have made international marriages more common.  Therefore, it is likely that international child custody conflicts will increase in the future.

Once a child is taken from the United States, there is a series of complicated procedures that must be undertaken to regain possession of the child.  A great deal also depends on whether the country where the child was taken is a member of The Hague Convention.travel.state.gov/family/abduction/hague_issues/hague_issues_1487.html  Therefore, an ounce of prevention is worth a pound of cure.

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It is not uncommon for grandparents to play an active role parenting and caring for their grandchildren.  This may happen when an adult child returns home after being on his/her own, when an adult child gets divorced, or for a variety of reasons wherein the child's parent cannot be around. 

The significant legal question is when may a biological or adoptive grandparent obtain court-ordered access to his/her grandchild.

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