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You’ve been through a divorce or a suit affecting the parent-child relationship, and the other party was ordered to pay child support by the Court, the terms of which were all located within the Court’s final orders. With all orders of child support, the orders state how much the obligor (responsible parent) is supposed to pay, how often they have to pay, and to whom they make the payment (in most if not all cases, the state disbursement unit). However, it’s been several months, or even years, and the other party has failed to comply with the child support order. You need financial help in raising your child; but you’ve reminded the other parent time and time again about this, and they still refuse to help you. So, you contact your attorney at Guest & Gray, P.C. who informs you that there is a solution–motion for enforcement.

Within this motion for enforcement, you will plead the dates that the child support payments were due, the amount that was due, and the amount that was paid. So, for instance, if the obligor was ordered to pay $200.00 on the first day of each month, and they just didn’t make a payment at all, then the amount paid would be $0.00. And, if they did make a payment of some amount, you can list that. But, the reality is that they were ordered to pay a certain amount, and that amount needed to be paid in full.

Because the obligor has failed to make their child support payments, then they are now in what is called arrearages for child support. This means that they have an outstanding balance. In pleading for an enforcement of the child support order, you will plead the total amount that the obligor is currently in arrearages. You will ask that the Court confirm this amount when you have your hearing and order that the obligor be responsible for that full amount.

Within the remedies that can be requested, the most popular is that of contempt. That is, you can request that the Court order that the obligor be confined in jail or pay a fine in addition to the remedy of paying you the child support arrearages that he/she owes. You can also request that the Court enter a money judgment against the Respondent or obligor, impose a child support lien against Respondent’s property, order withholding from Respondent’s paycheck, and/or award your attorney’s fees. You and your attorney must be specific in the remedy that you are seeking, because unless it’s requested within your motion, then a judge can’t award it. So, be sure to ask for what you want.

With respect to attorney’s fees, sometimes in family law cases this can be hit or miss. It is generally determined on a case-by-case basis and can also depend upon the Court that your case is in. However, the Texas Family Code carves out a special niche for enforcement of child support cases. That is, Texas Family Code Section 157.167(a) states that if you prove that the Respondent has failed to make his/her child support payments, then the Court shall order the Respondent to pay your attorney fees and any costs associated with the suit. Another caveat is that if the Court finds that the Respondent is in arrearages for $20,000.00 or more in child support, then the Court must award attorney’s fees and costs unless the Court finds that Respondent is (1) involuntarily unemployed or is disabled; or (2) lacks the financial resources to pay the attorney’s fees and costs.

When a Court orders a person to pay child support, it does so because not only is it required by Texas law, but also because of a moral code to ensure that the children’s essential needs are met. So, if you are facing this situation, there is a remedy to make the other parent step up and comply with their obligation and with the Court orders. You just have to take the first step and bring it to the Court’s attention.

You are divorced and in the final decree, your ex-spouse was ordered to take care of a particular piece of property. It could be that they were ordered to take a piece of property and pay for it, pay a debt, ordered to hand over a piece of property to you upon divorce, etc. However, your ex-spouse has failed to comply with these orders and you are fed up with asking them to do so time and time again without any result. So, you contact your attorney at Guest & Gray, P.C. in Kaufman County who informs you that a motion for enforcement can be filed on your behalf. In a nutshell, and quite simply, this is asking the Court to force the other party to do what they were originally ordered to do, because they never did it.

When dealing with an enforcement issue, the primary concern would be looking at the final orders and what particular provision you are seeking to enforce. This is crucial because the order language must be specific in order to be enforceable. If not, then you (within the final orders) are given the option of requesting a clarification from the Court via a motion to clarify. Basically, you would be telling the Court, I know you ordered my ex-spouse to do something, but we are unsure as to what the specifics were in that order or what the Court had in mind with that order. This request for a clarification can be joined with your motion for enforcement.

Also, the language within the final orders is important because when preparing your motion for enforcement, you have to identify the violated provision. That is, Texas Family Code Section 157.002(a)(1) states that the motion to enforce must “identify the provision of the order allegedly violated and sought to be enforced.” Therefore, a motion for enforcement serves as a tool to point out to the judge his/her orders in the final decree, the allegations that the party ordered to act has failed to do so, and then requests a remedy on your behalf due to the responsible party’s failure to comply.

With respect to remedies, there are a few to choose from. You can either request that the Court order the party to deliver a piece of property to you, award real estate, or award a money judgment and attorney’s fees. With respect to the last remedy, this is requested when the order can no longer be performed such as you already took care of it or the property doesn’t exist anymore. You are requesting that the Court award you an amount of money for damages of either costs you incurred or the value of the property that no longer exists. Once you obtain a money judgment, you will need to enforce it against the other party.

Once a motion for enforcement is drafted, it will then be filed with the clerk’s office and the Respondent (your ex-spouse) will be served with your motion and citation. This will allow them some time to answer your petition, hire an attorney, or both. At the time of filing, you can also seek to have a hearing placed on the docket which will be a hearing before the judge, not a jury trial.

Knowing your rights when the other party won’t comply with what the Court orders is essential. It is frustrating to know that even when a Court orders someone to do something, they may not do it. But, it is good to know that there are remedies for noncompliance. Courts issue orders for a reason, and they expect the parties to comply with them. But, you have to take that step and bring this to the Court’s attention.

Imagine this scenario: you are at work or at home waiting on your child to get home from school, and someone contacts you and identifies themselves as a CPS social worker and they want to speak with you regarding your child and some recent allegations. You are confused and concerned. Unfortunately, many parents face this every day.

In fact, Child Protective Services (CPS) has two different avenues of becoming involved when there are allegations of child abuse (typically classified as sexual, emotional, or physical), neglect (defined as lack of supervision, lack of medical or emotional care, etc), or if CPS suspects that there is alcohol or drug abuse occurring within your home. The two different avenues of involvement are as follows:

EITHER:

(1) You receive notice from CPS that there is an allegation of child abuse within your home. The CPS worker who has been assigned to your case will contact you and will begin the investigation. The CPS worker can even go around you and first visit your children at school or daycare and can discuss the allegations with them and determine if there are any real and apparent issues that are consistent with the initial report. Then, the CPS worker can choose to come to your home and interview you there. The CPS investigator is looking for evidence of abuse or neglect or for evidence that abuse or neglect may occur within the foreseeable future. More specifically, the caseworker is looking for an immediate risk of serious harm.

At the close of its initial investigation, which must be conducted within 30 days of the report, a conclusion will be made by the CPS worker whether the allegations are true. If at the conclusion of the initial investigation the allegations are deemed as being true, then CPS can seek to remove your child or they can seek to make further plans for your family to ensure that the children are protected. This might entail what CPS terms as the Safety & Evaluation Plan and can include such recommendations like parents will attend counseling, the CPS worker will make random home visits, the children are not to be around a certain person, etc. This may not result in a court case at all.

Also, it’s important to note that you may become involved in a custody dispute after the CPS investigation is initiated. Maybe the other parent is seeking to modify the custody orders that were initially rendered by the Court, and CPS’ involvement now plays a huge role. Your attorney at Guest & Gray, P.C. will be able to discuss this with you and let you know what to expect.

OR:

(2) CPS decides to take administrative action when it receives a report of alleged child abuse or neglect and removes the child from the home or places limitations on your visitation during the pendency of the investigation.

At this point, you have a very short time frame between having your child or children removed from your home and from when you will be in front of the judge. Once your child is removed, you will receive a written report and petition from CPS. The petition will name CPS as the petitioner and you as the respondent and will list out the allegations of why you shouldn’t have custody of your child. You will need to be sure of when your court date is, because as mentioned, it will come up quickly.

Potentially, there are 8 hearings that are involved in these cases which are: emergency hearing, adversarial hearing, initial permanency planning team meeting, status hearing, initial permanency hearing, additional permanency planning team meetings, permanency hearing, and final hearing.

First, the emergency hearing is held within 1 business day of CPS’ filing of its petition and it can be ex parte, which means that the Court can hold this hearing without you. At this hearing, CPS’ attorney has the opportunity to present the allegations and issues to the judge and the judge will determine whether or not to keep the children in CPS’ care until the adversarial hearing.

Second, the adversarial hearing is held no later than the 14th day after the child or children are removed from your home. At this hearing, the Court will determine whether the removal of your child was proper. If the Court concludes that the removal was proper, the Court will also put temporary orders into place while the case is pending to ensure the safety of the child. At this point, your child could remain in CPS’ care, or the child can be placed with a family member, friend, or other person whom the Court finds suitable. This hearing is incredibly important for you as the parent or guardian of the child because, first of all, you’re there. So, the Court gives you the opportunity (and most importantly, your attorney) to explain the situation from your perspective. In particular, you will no longer having the Court solely consider CPS’ perspective at this point, because up until now, this is the Court’s only source of information. This is your child, so come prepared for the judge to know the real circumstances.

Third, if your case gets this far, you’ll have the permanency planning team meetings which are initially held within 30 to 45 days from the removal of your child from your home. It’s important to note that while this isn’t an actual court hearing, this is a crucial step in your case as all of the parties will be present. In fact, you should bring all of your supportive family members who are also concerned for your child’s safety. Here, what CPS terms as the “service plan” will be established which is what everyone can agree on as best for the child.

Fourth, after the service plan is established, a status hearing is held. Time frame for this is at least within 60 days of the child being placed in CPS’ care temporarily. At this hearing, the Court discusses the service plan with you and makes sure you understand what it is and what you must do to comply.

The next and fifth step is the permanency hearing. Unfortunately, there may be multiple, but we know that there’s at least one in the CPS process. There, the Court will go over the service plan and it will have been a while so the Court will be able to determine who is complying and who isn’t and determine whether any changes need to be made to the Plan. Also, the Court could determine at this time that your child would be returned to you until final hearing or continue with either CPS having the child or another guardian. Here, the final hearing date will be announced by the judge. As stated, if the Court determines that other permanency hearings are necessary, then those dates will be announced as well.

Lastly, you will have the final hearing or trial. Here, all the parties are allowed to present testimony and evidence that go to your child’s best interest. After this is presented, the Court will make a determination on who will have custody of your child or, how the Court terms it, who will be conservator of your child. The conservator may be you, a person who’s been named guardian of your child during the pendency of the case, or it could be CPS.

Regardless of how CPS becomes involved in your family, it is essential that you contact your attorney at Guest & Gray to ensure that your parental rights are protected. In fact, the quicker that you act, the more you ensure that your rights are protected and you ensure that your attorney is there to guide you through the process. That is, a CPS case can be quite difficult and there are several issues that may arise during its pendency. It can be a convoluted process that people frequently become discouraged over. As you’ve seen through this brief summary of the steps, it can be turn into a long, drawn out process. However, your attorney may be able to stop the process at a particular point in proving that the allegations are false or that removal of your child was unnecessary. The key is to be informed and contact your attorney at any indication that CPS is investigating your family.

If you are a parent involved in a divorce with your children or in a suit affecting the parent-child relationship, you have to be careful in terms of deciding what conservatorship you ask for, or even agree to. In particular, let’s say that the other parent has a lot of personal issues and you would prefer that they not be in your child’s life because it would not in the child’s best interests. You contact your attorney at Guest & Gray, P.C. in Kaufman County who informs you that there are two choices–either request that the Court deny the parent access to the child; or, request that the parent’s access be limited. You want the other parent to be completely denied possession. However, your attorney advises that this may not be the best choice.

This is because of a recent opinion in Fish v. Lebrie, where the Austin Court of Appeals established that when a parent’s access to the child is completely denied, that is essentially the same as terminating parental rights. Therefore, if a parent’s access is going to be denied, then it must rise to what the Court termed as “extreme circumstances” that would justify keeping the parent from the child. However, the court left it unclear as to what this would mean; but yet also suggested that a parent’s access could be drastically limited and not terminated, and that would be okay.

The court might have been unwilling to draw a bright line rule in that particular case because the mother presented evidence that the father emotionally and physically abused the child. But, the father had the child’s psychologist testify that this wasn’t true.

Even though that case involved conflicting evidence, it seems that it would be safe just to limit the other parent’s access to the child rather than completely deny access. That way, one would avoid the issue presented in the Lebrie case. This is because a parent’s right to their child is considered constitutional and one of the most protected rights. However, note that this recent appellate opinion doesn’t make denying a parent’s access to the child an impossible task.

Based upon this, you will need to ensure that the facts of your case do not present the dilemma faced in the Lebrie case and be cautious when seeking to deny the other parent possession of or access to the child.

You’re in the midst of a divorce or suit affecting the parent-child relationship and you’re discussing the rights and duties that each parent will have with respect to the child or children. In particular, you are discussing additional ways to have “visitation” with your child outside of the standard possession periods that you will have. For instance, what about “electronic” communication when the child is in the other parent’s care? So, you contact your attorney at Guest & Gray, P.C. to inquire about this additional right to your child.

In some instances when one parent won’t see the child as often or if the parents reside more than 100 miles apart, courts can include electronic communication provisions when it is appropriate. This means that you can email or, with the advancements of technology, Skype with your children now when they are with the primary parent.

However, the 14th District Houston Court of Appeals recently held that orders that allow you to do so must be specific in order to be enforceable. In fact, that Court held that if there is an electronic communication provision within the final orders, it must comply with Texas Family Code §153.015(c) which lists out 3 requirements for the named conservators.

While all three requirements must be listed in the final orders, in particular, this court focused on the second requirement which states that “each conservator subject to the court’s order shall notify the other conservator with the e-mail address and other electronic communication access information of the child.” That, the Court held, is a mandatory provision which must be included in any trial court’s final orders when it comes to electronic communication.

Therefore, if you’ve been granted this special access to the child, it’s the conservators’ responsibilities to notify each other when the child’s information changes–per statute and Court orders, you must do so.

It has been a few months since you’ve finalized your divorce or suit affecting the parent-child relationship and you either realize that you’re not happy with what was ordered, or the other parent hasn’t been complying with the orders. In particular, let’s say you do not like the conservatorship ordered, and it has been less than a year.

You contact your attorney at Guest & Gray who informs you that we can file a petition to modify. However, there is a specific requirement with these types of pleadings. Your attorney must attach an affidavit on your behalf which is signed and notarized and this affidavit must set out the facts and establish that either (1) the present environment endangers the child’s physical health or impairs the child’s emotional development or (2) the primary conservator agrees to the modification and the modification is in the best interests of the child.

The key is that the affidavit must be sworn to (signed by affiant) and notarized. If it’s not, it’s fatally flawed and the petition can be thrown out. However, the the other side must catch this flaw. This is based on the recent opinion in Serafn v. Seal by the Austin Court of Appeals wherein the Court set a deadline for when this affidavit is considered fatally flawed–designating when an issue with the affidavit must be brought to the court’s attention. The Court held that you must object in the very beginning if you notice an issue with the affidavit. If you don’t, and you wait until appeal of the case, according to the Austin Court of Appeals, you will have waived your complaint of the defective affidavit. So, two lessons here–first make sure that your affidavit is in compliance with the rules. And two, if you’re the Respondent in the matter, be timely in your objections.

You are in the midst of a contested custody proceeding, whether it is with your present spouse or another relative to the child. You are concerned with allowing the judge to decide who your child should live with. You don’t think it would be the best for your child. So, you contact your attorney at Guest & Gray in Kaufman County who informs you of your options. If you don’t want the Court to decide, there’s always the option of a jury of your peers.

A parent is entitled to a jury trial on this issue of conservatorship and the jury’s verdict can’t be changed by the court. And, the 1st District Houston Court of Appeals in In Re Kathleen Elizabeth Reiter held that when a parent requests a jury trial, a court must grant the jury trial and this can’t be bypassed by the other party. Therefore, if you request a jury trial but aren’t granted one, your attorney will gladly bring this case to the court’s attention.

Additionally, the Austin Court of Appeals supported this right to jury trial in Winters v. Winters. There, the Court held that even where a parent had committed an act of family violence against the other parent, while this may mean that you can argue that the parent can’t be appointed joint managing conservator, that doesn’t mean that if they request a jury trial, they’re not entitled to one. Therefore, just because a parent committed an act of family violence, that doesn’t prevent them from seeking a jury trial on the issue of conservatorship.

Thus, it is important that you are aware of all of your rights in a custody suit. As well, it’s important to know the strength and meaning of those rights.

You are unhappy with how custody and possession turned out for a child in your life, and you’re not the parent. But, you want to do something about it because you were part of the original proceeding, and you feel as though the circumstances (facts and evidence) have substantially changed since the judge rendered his/her opinion. And, you feel as though if the judge was updated on the new facts, then that decision could be changed. Maybe the child’s conservators haven’t been complying with the judge’s orders or they’ve started doing things that you believe are harmful to the child such as using controlled substances. However, you are concerned about how to even go about getting this process started. So, you contact your attorney at Guest & Gray in Kaufman County.

Your attorney advises that a nonparent can file a petition to modify the parent-child relationship if that nonparent was a party affected by the previous order that they are seeking to modify. In fact, the 14th District Houston Court of Appeals in In the Interest of S.A.M., P.R.M., and S.A.M., Minor Children produced a clear ruling for this type of standing and it broke it down into two analyses–what is a party and what does it mean to be affected.

The court held that a party, quite simply, is a nonparent who was actually a party to the prior original suit. That is, if the nonparent was an intervenor and the court never struck this designation. Or, if a nonparent filed the original proceeding or was a respondent.

Furthermore, a party is affected if they are granted rights and duties in the final orders. Meaning, if a nonparty is given a certain right to the child like to pick them up from school or have certain visitation, and that nonparty is also supposed to notify the other parties of any change of address.

The Court held that if both of these components are established, then that would be a party affected by prior orders. Therefore, there is a lesson to be learned here–for parties wanting to keep nonparents out of the picture, do not include them in the original orders because if anything, they could establish standing through this avenue. Or, if you are a nonparent, try to find a way through negotiations to be included in the final orders.

A motion to modify the parent-child relationship has been filed. You, even though you are not a parent of the child, would like to participate in this hearing and ask that the judge allow you either custody of the child or at least some visitation with the child. You contact your attorney at Guest & Gray, P.C. and discuss the issues with them.

In order to intervene and become a part of the court proceedings, you must establish standing. There are different ways to do so. A recent appellate opinion discussed the actual care, control and possession form of standing.

That is, a nonparent seeking to intervene in an already pending modification suit, as part of the standing requirements, must establish that they had actual care, control and possession of the child for at least 6 months and that couldn’t have ended more than 90 days before the petition to modify was filed. The question becomes what constitutes actual care, control and possession. In particular, what does “actual” mean for these types of court proceedings. While it may seem simple, this concept is quite convoluted.

In Smith v. Hawkins, the Houston 1st District Court of Appeals interpreted this to mean that a nonparent didn’t need to establish “exclusive” care, control, and possession in order to establish standing. In this particular case, the intervenor was an aunt of the child who lived with the child and the child’s grandmother. In the first proceeding, the child’s grandmother was named sole managing conservator of the child and the child’s parents were named possessory conservators. A few years later, the dad sought to modify this. During the time before the petition to modify was filed, the aunt lived with the child and grandmother and established at trial that she had provided for the child financially by paying for all of the child’s necessities, health insurance, and she paid for the mortgage on the home they lived in. She also spent so much time with the child that the child starting seeing her as the child’s mother.

Based upon this evidence, the court appointed the aunt and the grandmother joint managing conservators of the child, establishing that if a nonparent is seeking custody of a child, they can do so and be appointed joint with another non parent or even parent. Even though the grandmother was still in the child’s life, lived with the child, and was a caregiver for the child, the aunt was also part of the picture. And for this Court, this was enough to establish care, control, and possession of the child.

However, not all appellate courts have this same view. Again, going back to whether this is an original petition or a petition for modification, it all depends on the parental presumption. Meaning, with original petitions, there is a parental presumption that nonparents must overcome which makes the burdens much higher. In fact, the Corpus Christi Court of Appeals found in Gray v. Shook that a parent must directly do something to the child which causes significant physical or emotional harm to the child. Meaning, some specific, identifiable behavior or conduct of the parent which directly results in physical or emotional harm to the child. This is the more strict interpretation of what it takes for the nonparent to overcome the parental presumption in custody cases. However, remember that before you can even get to point in the case where you are allowed to argue your case, you must establish nonparent standing.

The issue of nonparent standing in original petitions is a contested issue among the courts right now. In particular, the Texas Supreme Court will soon be considering the issue of what it means for actual care, control, and possession to establish standing for a nonparent in original petitions. This is due to two recent conflicting opinions on this issue.

The first was by the Beaumont Court of Appeals which held that a grandmother who had lived with a child and the mother for 6 years could not establish standing to seek conservatorship, because the mother was still in the residence with the child and hadn’t given up all of her parental rights to the grandmother.

That is in direct contrast with a recent Dallas Court of Appeals opinion where the Court held that a grandmother who had possession of the child considered the equivalent of standard possession was enough to establish care, control, and possession for standing. This opinion is on review right now and thus, the Texas Supreme Court will hopefully step in and resolve the issue. It will be important and interesting to find out the Court’s decision on this matter and to see whether it will provide a bright line rule for this inconsistent grey area of the law.

You are an aunt, uncle, grandparent, stepparent, or someone with a third party relationship to a child. And, you are interested in seeking custody of the child because you have established a strong and lasting bond with this child. However, in seeking such, you realize that you do not have an easy road ahead of you. That is when you contact your attorney at Guest & Gray in Kaufman County.

Your attorney advises you that in an original proceeding to establish the parent-child relationship, there is a parental presumption when it comes to conservatorship–parents should be appointed as conservators unless there’s reason to the contrary. However, the 14th District Houston Court of Appeals in In the Interest of R.T.K. made the distinction that in modification proceedings, this parental presumption doesn’t exist. Thus, in modification suits, conservatorship is ultimately determined upon the best interests of the child.

Despite this, in both original and modification proceedings, if you can produce evidence that appointment of a parent as conservator would significantly impair the child’s physical health or emotional development, then that would be sufficient to appoint a non-parent as conservator.

In the R.T.K. case, it was a stepmother vs. mother and the stepmother eventually prevailed based upon the facts and evidence presented. This case supports those nonparents who have practically raised the child and who have provided stability to the child’s life. From a court’s standpoint, this would of course support child’s emotional and physical development.

However, expanding upon this, when looking at the nonparent vs. the parent, the Fort Worth Court of Appeals made it clear in In the Interest of K.R.B. that it is measured by the parent’s “present unfitness”. This means that if the parent’s past is rocky, but they’ve since been rehabilitated, then that weighs in favor of them being appointed conservator of the child. For instance, in that case, the mother was addicted to meth and had a criminal history. However, at the time of trial, the mother had undergone rehabilitation treatment and as part of her probation, produced several negative drug tests.

Therefore, the lesson being from this particular case that if a nonparent wants to maintain or secure conservatorship of the child, then they must act based upon the parent’s present unfitness.