Custody

What is the law on terminating parental rights in Texas?

September 19, 2013 | by Guest and Gray Law Firm

The involuntary termination of parental rights implicates fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). To terminate parental rights, the trier of fact must find, by clear and convincing evidence, that the parent has committed one of the acts prohibited under section 161.001(1) of the Texas Family Code and that termination of parental rights is in the child’s best

interest. TEX. FAM.CODE ANN. § 161.001(1), (2) (West Supp. 2012); In re E.N.C., 384 S.W.3d

796, 803 (Tex. 2012).

Can my Facebook page be used against me in a divorce?

September 10, 2013 | by Guest and Gray Law Firm

Yes, But Guest & Gray, P.C. Can Help:

You’re in the midst of a contested divorce and you are keeping all of your friends, relatives, and the world update on Facebook. You post pictures, updates as to the status of your case, and post how you feel about your soon-to-be-ex. This should be your personal diary and is there for you to vent. Right? Wrong. Guest & Gray, P.C. handles numerous divorces on a daily basis. More recently, we are seeing the issue of our clients falling into the Facebook trap. Do not be discouraged; our office has the experience to assist you not only through your divorce but to ensure that you take the steps yourself so as to not hinder positive results.

If you post anything that is defamatory/derogatory/harassing, etc. against the other party or their attorney, the Court would definitely frown upon that. More importantly, that gives the other party ammunition to file a contempt motion against you. Dallas County, Rockwall County, and Kaufman County all have standing orders in every divorce action that specifically state what you and the other party are to do and not do while your case is pending. Dallas County standing orders state you are ordered to refrain from the following:

What happens if I fail a drug test in a child custody case?

September 3, 2013 | by Guest and Gray Law Firm

If there is an allegation that either you or the other parent is abusing an illegal controlled substance, then a drug test can be requested. Typically, the testing will occur with Forensic DNA & Drug Testing facility in Dallas and if requested by either party, then the court will order both parties to participate and pay for their respective drug tests. However, sometimes, the court will only order the one party accused of using an illegal substance to take the drug test and order that the requesting party pay for the drug test with the caveat that if the testing party has a positive result, then they must reimburse the requesting party the drug testing fee.

If you fail a drug test, or if the other party fails a drug test, there are consequences in a child custody case. The court could order that the failing party have little to no visitation with the child and if any visitation, then it will be supervised. Sometimes, the judges will ask if there is a family member who could do the supervision of the visits with the child. If there are not, then the extreme form of supervised visits is either Family Court Services if in Dallas County or other court-approved supervision facility. Also, if there is a history of abuse of an illegal controlled substance, then the court could order that you participate in a rehabilitation program before the failing party has any access to the child. In fact, there could be several steps that the court puts in place for the failing party to complete before they have any visitation with the child. Again, most courts will order supervised visitation with the child but it could be very limited to a number of hours per month.

Courts have also started putting injunctions in place to the effect that a party is to not consume an illegal controlled substance within a certain period of time (example 72 hours) before possession or access to the child begins. This is also something that can be requested by either party. Additionally, in final orders, it can be ordered that you submit to random drug testing at any time in the future if requested by the other party and they pay the testing fee.

Tips for a Successful Family Law Mediation

September 3, 2013 | by Guest and Gray Law Firm

Congratulations, you have made it to mediation stage in your family law case. For many, this is the step to final orders in your case. That is, if you have a successful mediation. There are a few things that you and your attorney can do to ensure this is the case for you.

(1) Many mediators send out a mediation packet to the attorneys/parties once the mediation is scheduled. This mediation packet should be taken seriously and completed to your utmost ability. It gives the mediator information about you, the other party, and the issues at hand as well as your stance on those issues. Some mediators go into more depth than others. The more that is addressed right off the bat, the better.

(2) If your case is a divorce with property issues, make sure you have at least a sworn inventory and appraisement from both sides so that you can make sure all of the property is addressed. To be more organized, you could make a spreadsheet of assets and debts, with a column for the ones you would like and the ones you would like for your spouse to have, as well as a column to check off whether or not the asset/debt is addressed in the mediation settlement agreement.

Can the court order me to pay attorney’s fees in a suit affecting the parent-child relationship?

August 30, 2013 | by Guest and Gray Law Firm

The court in your family law case has received a request to order you to pay attorney’s fees for the other party. Is the court allowed to do that? And if they are allowed, what kind of evidence is required to prove the amount? The Dallas Court of Appeals explored this issue in a recent decision and stated that reasonable attorney’s fees may be awarded. The Court also discussed the factors that it considers when calculating attorney’s fees.

When a suit affects the parent-child relationship, courts have the discretion to award attorney’s fees to a party. Suits affecting the parent-child relationship include matters like child support, possession, and conservatorship or custody. Awards of attorney’s fees can be challenged on appeal. The appeals court will analyze the award based on the “abuse of discretion” standard. This lenient standard is difficult to overcome because the appeals court can look at many factors, any or all of which can show that the trial court was not arbitrary. Most of the time, these factors will support the original award or attorney’s fees and the award will be upheld.

Factors to consider in determining the reasonableness of attorney’s fees are: (1) the time and labor required based on the novelty and difficulty of the questions involved and the skill required to perform the legal service properly; (2) the likelihood that the acceptance of the particular employment will keep the lawyer from taking other cases and employment; (3) the fee customarily charged in the local area for similar legal services; (4) the amount of money involved in the case and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship between the client and lawyer; (7) the experience, reputation, and ability of the lawyer performing the services; and (8) whether the fee is a set fee or if it is contingent on results obtained or if before the legal services have been rendered there is uncertainty about the ability to collect.

Can the court change or modify a mediated settlement agreement in a family case?

August 30, 2013 | by Guest and Gray Law Firm

When you seek to modify a mediated settlement agreement that is an original determination of parent-child relationship matters, does a trial court have to enter an order that meets the terms of the mediated agreement? The Dallas Court of Appeals considered this issue in a recent decision and found that because modification suits apply a different set of rules than the rules that apply to original agreements about the child-parent relationship, a modification of child support suit may result in a ruling that does not comply with the terms of the agreement produced by mediation between the parties.

A mediated settlement agreement reflects the agreement of the parties about the child-parent relationship, including matters like child support, possession, and conservatorship. Child custody is called conservatorship in Texas. Texas courts and laws put a heavy emphasis on mediation and encourage alternative dispute resolution in a lot of situations. Mediation is supposed to encourage problem-solving and cooperation as well as reduce the financial burden on families and the court system. Many courts actually require mediation before allowing litigation to begin. Because of this emphasis, courts are likely to respect mediated settlement agreements unless a compelling reason exists that indicates that the court should ignore the agreement. Sometimes, statutes provide that required compelling reason.

In this recent case, the parties’ mediated settlement agreement was the original determination of conservatorship, possession, and access to the children. An original determination arises under § 153 of the Texas Family Code. As long as the mediated agreement met the rules of § 153, the court would enforce the agreement as written if a suit was brought seeking enforcement of the agreement. However, one of the parties sought a modification of child support suit. This type of suit is brought under § 156 of the Texas Family Code. This section requires different policy concerns than § 153, namely the need for stability for the child and the necessity of preventing constant litigation in family law cases. Because the policy concerns are different, the law has a different standard the court must use when applying the law. The Texas Family Code’s § 156 legal burden requires the court to determine if there has been a “material and substantial change” in the circumstances of the parties as well as to consider whether the requested modification is in the best interests of the child. So, when there is both a “material and substantial change” in circumstances and the modification sought is in the best interests of the child, the court only has to consider these facts and is not bound to enter an order that strictly complies with the mediated settlement agreement.

I have been served with divorce papers, what should I do next?

August 29, 2013 | by Guest and Gray Law Firm

The reality is that most people get served with divorce papers and stick their heads in the sand because they are in denial. You cannot let this happen to you. If you fail to file a response, hire an attorney, or show up to the hearing, then you are facing a default judgment against you which results in your spouse getting everything that they want and a final decree being entered that could completely rock your world (sometimes more so than the divorce itself).

You need to set up a consult with a family law attorney and eventually hire an attorney who can represent you in this matter. So many clients come to me after they have been a part of a pro se divorce (they were not represented by legal counsel) and they want me to fix what they have screwed up. Once you hire me, we will either file a counterpetition (if there are certain specific things you want to ask for as a part of the divorce such as a disproportionate share of the community estate, have your separate property confirmed, temporary spousal support, etc.) or file a general denial. More than likely, if you have been served, you were not only served with the original petition for divorce but you were also served with a notice of hearing that you need to prepare for. You will need to make sure you have any of your necessary witness’ information for your attorney and any evidence that you want admitted to refute either your spouse’s claims or support yours.

As a family law attorney, I know how shocking and overwhelming it can be when served with divorce papers. Contact Guest & Gray, P.C. to help you make the best decision in this legal battle. Our family law team is ready to help.

How the Courts are Affecting the Parent-Child Relationship: Recent Opinions on the Safest Choice Between Denying vs. Limiting a Parent’s Access to the Child

March 23, 2012 | by Guest and Gray Law Firm

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.

How the Courts are Affecting the Parent-Child Relationship: Recent Opinions on Possession and Access to Child

March 21, 2012 | by Guest and Gray Law Firm

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.

How the Courts are Affecting the Parent-Child Relationship: Recent Opinion on Modifying Custody in Orders Less than Year Old

March 19, 2012 | by Guest and Gray Law Firm

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.