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Prior to the Supreme Court of Texas Opinion in In the Interest of H.S., on June 15, 2018, many family law attorneys would have told you that in order for a non-parent to have standing under Texas Family Code § 102.003(a)(9), the person would have had to have had “exclusive” care, control, and possession, of a child for six months. That is, the person would have had to have care, control, and possession of the child without any help or interruption from the legal parent. This would mean that the child would be living with the non-parent and the non-parent would be making all decisions for the child. The court made clear in In the Interest of H.S., that section 102.003(a)(9) is broader than that and that there is no “exclusive” requirement.

Texas Family Code § 102.003(a)(9) and Standing

 
To fully understand section 102.003(a)(9) you have to first understand what standing is. Standing is basically the ability of a person to get in front of a judge in a case and request an order. If someone does not have standing, they don’t get to bring their case to court at all. It is very difficult for a non-parent to bring a case regarding a child under the Texas Family Code because of a United States Supreme Court Case and a strong parental presumption policy in Texas. Section 102.003(a)(9) of the Texas Family Code gives a non-parent a way to have standing. It says that a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition can have standing.

A question we get asked frequently is whether a client or potential client can get “joint custody” of a child. The term “joint custody” is NOT a term that has legal significance under the Texas Family Code. The language in the family code that does use the word “joint” is “joint managing conservator,” and that doesn’t mean what most people think it means. This blog post is going to explain the difference in the two terms.

What is Joint Custody?

            In Texas, we don’t use the term “custody” to describe the time parents spend with their children. We use “possession and access” to describe what most people think of when they use the word custody. When people use the term joint custody they typically are speaking of a 50/50 possession and access schedule. For more information on what that may look like and what that means look here: What Does 50/50 Custody Mean. The long and short of that blog post is that there is no 50/50 possession and access schedule listed in the Texas Family Code and that there are multiple “equal” possession schedules that courts use.

There is no way that anyone can give you an exact timeline of how long your divorce will take. Each case is different. However, there are a few things that can be known for sure and this blog post is going to go through some of the things to keep in mind when trying to figure out how long your divorce is going to take.

1. There is a Mandatory Waiting Period

 
In Texas, divorces cannot be finalized before 60 days have elapsed since the date of filing. This is almost always the case, unless a judge waives the waiting period. Typically, judges think the 60-day waiting period is a good thing and they do not waive this requirement. However, under a few extreme circumstances, such as deployment or an imminent birth that is not of the marriage, judges have been known to waive the waiting period.

There are a lot of changes that happen because of a divorce. One that may not be at the top of people’s minds when going through a divorce is the impact their divorce is going to have on their property when they pass away. Divorce can change the way property is treated with respect to certain deeds, life insurance policies, wills, and other estate planning documents.

What Impact Does a Divorce Have on a Will?

In general, Texas law takes into account that people don’t want to leave things to their ex-spouse after a divorce. Without express language that says otherwise written into a will, anything left to a spouse will be treated as if the spouse is essentially dead at the time the will is probated under Texas law. This means that anything that was meant to go to an ex-spouse will now go to whoever is next in line. This could mean that an alternate beneficiary was designated and the property will go to that next person listed or it could mean that the property now will pass as if no will was drafted because no alternate beneficiaries were named.

Many people are familiar with the standard possession schedule that is written in the Texas Family Code. It basically involves first, third, and fifth weekend possession with rotating holidays and extra time during the summer. Less people are familiar with section 153.015 of the family code that provides a way for judges to order electronic communication with a child as a way to supplement the time a parent has to spend away from their child under a possession order.

What does section 153.015 say?

The court may award a party reasonable periods of electronic communication with a child upon request of the party.  In determining whether to award electronic communication, the court will consider whether electronic communication is in the best interest of the child, whether equipment necessary to facilitate the electronic communication (phone/ipad/computer) is reasonably available to all parties subject to the order, and any other factor the court considers appropriate.

Can you Modify a Judgment that is Currently Being Appealed in a Family Law Case?

 
What is an appeal?

Generally, in legal actions an appeal is an action you take when you think the judge you are in front of got it wrong. For the most part there must be a final order for a judgment to be appealable. Usually, an appeal means that the lower court holds off on taking any further action while a higher court reviews the case and reviews that everything was done correctly. Family law cases are unique for a lot of reasons, one of them being that they have a continuous nature when children are involved. When children are involved courts have what is called continuing, exclusive jurisdiction after a case involving a child is in their court. This makes the issue of appealing a case involving a child more complicated than a normal civil case in which the final judgment is going to be final and the last word that a judge has to say on the matter.

How does the default possession schedule work in the family code for winter break?

As school is letting out for the holidays families under new possession orders may be wondering how exactly December and January are going to work for them. The Texas Family Code presumes that a certain holiday possession schedule is in the best interest of children in section 153.314. This possession is something that has not always been the default in Texas so it may not sound exactly like what people are used to doing for holiday possession in the past. As of now, the family code allows for one parent to have possession of the child from the time that the child is dismissed from school for winter break (or at the time the public school district that the child lives in dismisses from school if the child is not in school for whatever reason) until December 28th at noon. The other parent shall have possession of the child from noon on December 28th until 6 p.m. on the day before school resumes at the end of winter break. This set up flips back and forth between parents each year with one parent having the first half of the break during even years and the second half of the break during odd years and the other parent having the first half during odd years and the second half during even years.

What does that look like using a real school district’s schedule?

We never encourage people to get divorced who aren’t ready. Divorce is not something to go into lightly and it can be a very expensive endeavor. With that being said, putting off an inevitable divorce can be much more expensive in the long run. In Texas, we are a community property state. That means that all property that is acquired during the marriage is considered a part of the “community estate.” All property that is part of the community estate is subject to being divided by the judge when the divorce is finalized. What this means practically is that in Texas once you are married to someone everything you buy and all debt you incur is basically equally the property of both spouses. This can be good or bad depending on where you are situated in a particular relationship. However, the risk with waiting to get a divorce is that your current spouse is incurring a large amount of debt that you can be on the hook for or that anything you buy and any income you get is going to be subject to being divided in your divorce.

Up to one in four couples who choose to divorce choose to do so in January according to some sources. This is often attributed to the fact that people are choosing to stay together during the holidays for the sake of their families, usually their children. Some say that the stress of the holidays is actually what causes the uptick of divorces after the new year. Whatever the cause, if you are thinking of putting off an inevitable divorce it is important to understand that waiting to get a divorce finalized can cost you. Texas has a mandatory sixty day waiting period once a divorce is filed that is rarely waived. So, even if you think you are only waiting until the beginning of the year to get divorced and then everything will be done, the reality is you still have at least sixty days left of being married, with the majority of cases taking much longer than sixty days to actually be finalized.

Additionally, there is nothing that says just because you file for divorce that you cannot still celebrate the holidays together for the sake of the kids. There is no reason to let children in on your adult problems over the holidays unnecessarily. Obviously at some point the children are going to figure out that you are no longer married, but if you are already not cohabitating as spouses, filing a divorce petition is not going to be something that you have to reveal to your children.

With the holidays approaching and many people spending money on gifts for their children some people may be left wondering whether they can count the money they spend on Christmas gifts as part of their child support payment. The short answer is no. The family code states that any order rendered by a judge after 1994 shall order that child support be paid through the state disbursement unit. In addition to the specific provision of where to pay child support each month, most orders include provisions that state that any payments or gifts made outside of the money paid to the state disbursement unit each month shall not count as a credit against any child support that is owed.

Child support is supposed to be set in an amount that is in the best interest of the child. The amount is based on the needs of the child every month. Those needs include food, shelter, clothing, and other basic necessities that are required to raise a child. A gift at Christmas does not change the fact that those needs for the child still need to be met that month. Basically, it is very unlikely that a Christmas gift, no matter how practical or expensive, will be counted as a credit toward child support that is due. Child support payments should always be made in the manner that they are ordered to be paid.

If you have any questions regarding child support or any family law matter contact Guest and Gray and we can schedule a time to discuss your issue and let you know your options.