March 16, 2015

Part 2: Breaking Down the Best Interest of the Child – The Child’s Desires

iStock_000048065648SmallAs mentioned last week, over the next nine weeks I will address the nine factors that the Texas Supreme Court provided for consideration when determining the best interest of a child.  Holley v. Adams 544 S.W.2d 367, 371-72 (Tex. 1976).  The first factor is the desires of the child.  Two questions come to mind with this factor: (1) how is a court to know the child’s desires, and (2) how much weight does the Court give to said desires?

(1)  Court’s Knowledge of Child’s Desires

A court may learn of a child’s desires by interviewing the child in chambers on issues related to (a) which conservator has the exclusive right to designate primary residence, (b) possession, (c) access, and/or (d) any other issue in a suit affecting the parent-child relationship.  See Section 153.009 of the Texas Family Code.

Under Section 153.009, a party to a lawsuit, an amicus attorney, an ad litem attorney for the child, or the court itself may move for a judge to interview a child in chambers.  This request can be made by filing a motion, or at a nonjury trial or hearing.  If a child is twelve years old or over, a judge must interview the child.  If a child is under twelve years old, it is up to the discretion of the judge whether to conduct the interview.

But where an issue has been previously submitted to a jury, a judge may not interview the child. And, although a court may consider a child’s desires expressed in an interview, the interview does not diminish a court’s discretion in determining the best interest of a child.

(2)  Weight Given to Child’s Desires

There is no bright-line test for the weight in which a court will give to a child’s desires.  A court has wide latitude in considering a child’s desires.

For example, in In the Interest of M.A.S., the Court gave much weight to the child’s desires.  In that case, a fifteen year old filed a written statement with the court stating his preference for his father to have the exclusive right to designate primary residence.  In the Interest of M.A.S., 233 S.W.3d 915, 921 (Tex. App. – Dallas 2007) (pet. denied).  Ultimately, the 5th Court of Appeals of Texas determined the child’s written statement “alone was sufficient to support… modification” and granted the father the exclusive right to designate primary residence.  Id.

Conversely, in In the Interest of A.C., a Child the 6th Court of Appeals of Texas stated a court “may choose either to take into account the information learned at such an interview or ignore it in its entirety.”  In the Interest of A.C., a Child, 387 S.W.3d 673, 677 (Tex. App. – Texarkana 2012) (rev. denied).

Conclusion

If a child’s desires are relative to the determination of family law issues, it is important to inform the court of those desires by requesting an interview with the child in chambers.  However, other evidence supporting the child’s desires should be made available to the Court.  In other words, sole reliance of one’s position in a family lawsuit should not be placed on an interview with a child of the lawsuit.

 

***This blog is not legal advice, nor does it constitute an attorney-client relationship with the recipient.  If you are facing a family law matter, please contact a licensed attorney.***

March 7, 2015

Part 1: Breaking Down the Best Interest Standard – The Holley Factors

In my March 15, 2013 blog, “Best Interest of the Child” Standard – What Does It Really Mean?, I provide a broad overview of the best interest standard used by Texas courts in resolving issues of conservatorship, possession of, and access to a child(ren) in family law matters.  Although Section 153.002 of the Texas Family Code sets the standard, Texas case law guides courts on how to apply it.  The precedential case relied on by Texas courts in applying the best interest standard is Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

Holley provides nine factors for courts to consider when determining best interest of a child.  As the Fifth Court of Appeals of Texas states in Fair v. Davis, “weighing or taking into account ‘best interest’ is different from requiring an affirmative finding of ‘best interest’.”  Fair v. Davis, 787 S.W.2d 422, 428-29 (Tex. App. – Dallas 1990, no writ).  Thus, the question becomes how do Texas courts weigh or take into account each factor?  

Over the next nine weeks, I will discuss the Holley factors individually and review current case law guiding Texas courts.  The Holley factors are: (1) desires of the child, (2) emotional and physical needs of the child now and in the future, (3) emotional and physical danger to the child now and in the future, (4) parental abilities of the individuals seeking custody, (5) programs available to assist the parties/conservators/agency to promote the best interest of the child, (6) plans for the child by the parties/conservators/agency seeking custody, (7) stability of the home or proposed placement, (8) acts or omissions of the parent which may indicate that the existing parent-child relationship is improper, and (9) any excuse for the acts of omissions of said parent.

When a family law matter involves a child(ren), a comprehensive understanding of the legal best interest standard, as well as the Holley factors, is essential to the outcome of the matter.  It is my goal to provide you with information to better understand that standard.  In the meantime, if you have a family law matter involving a child(ren), I encourage you to seek legal counsel.  When it comes to one’s child and a determination of what is in his or her best interest, there is no room for error.

February 12, 2015

You’ve Been Served, Now What?

Notice of LawsuitThere are many pop culture references to the phrase “you’ve been served,” which generally is associated with a phrase allegedly said by process servers when notifying a person they have been sued.  Even the Urban dictionary defines the phrase “you got served” as “you got skooled or beating very badly.”  That’s not very comforting, but somewhat appropriate.

The process of being served in itself is intimidating and overwhelming, let alone the reality you have been sued.  The reality you have been sued is a beating.  But at the point you receive proper notice of being sued, a countdown begins.  That countdown is the time frame in which you should respond because if you fail to do so, a default judgment may be ordered against you.  Essentially, a failure to respond within the alloted time is seen as a waiver of any denials or defenses you may have.

Rule 99(b) of the Texas Rules of Civil Procedure requires that a person being sued file with the Court of jurisdiction a written answer, asserting denials and defenses, to the petition initiating the lawsuit by or before 10:00 am on the Monday following twenty days after the date of service.  For example, if you are served on Wednesday, February 11, 2015, then twenty days after is Tuesday, March 3, 2015.  Therefore, your answer would be due by or before 10:00 am on Monday, March 9, 2015.

Being sued is no laughing matter.  However, the inconvenience of a lawsuit can be minimized by acting wisely, which begins with answering the lawsuit within the requisite time.  As always, if you have been sued and are unsure of how to proceed, seek legal counsel.  It will likely cost you less to respond properly the first time versus having to hire someone to correct a situation in which mistakes were made because you did not fully understand your rights.

February 4, 2015

Did You or Did You Not Say “I Do”?

The recent tragedy surrounding Bobbi Kristina Brown, daughter of the late Whitney Houston and infamous Bobbi Brown, is nothing short of heart-breaking.  However, the rumored conflicting opinions between family members over Ms. Brown’s medical care has led to an important discovery – Bobbi Kristina Brown and Nick Gordon were never actually married.  Why does this matter?  Because as a spouse, you generally have certain rights, including the right to make medical decisions for your husband or wife when they are incapacitated.  The question now becomes were Ms. Brown and Mr. Gordon informally married, or in laymen’s terms, did they have a common law marriage?

I cannot speak to the laws in Georgia, where the couple resides.  But in Texas and pursuant to Title 1 of the Texas Family Code, a heterosexual couple has a common law marriage if they (1) have an agreement to be married, (2) live together in Texas as husband and wife, and (3) hold each other out to the public as husband and wife.  The agreement does not need to be formally written and can be a verbal agreement, but there must be proof that the parties intent was to be in a marital relationship.  Additionally, there is no minimum requirement of how long a couple must cohabitate, but there must be evidence that the couple resided as a married couple, which typically involves an intimate relationship.  The last requirement means that the couple should consistently and openly present themselves as husband and wife to others.  There can be no “secret” common law marriage, and presenting yourself as husband and wife to a selective few likely will not be enough to meet this requirement.

Marriage, whether formal or informal, carries certain rights and duties.  If you think you are in a common law marriage, make sure you meet the requirements above.  Otherwise, you may find yourself in a difficult situation in which you thought you had certain legal rights and in all actuality, you do not.  

***Family Legal Source is an informational blog on family law matters.  It is not intended as legal advice or as a substitute for legal counsel.  If you have a family law matter, please seek the advice of a licensed attorney.***

 

January 29, 2015

Five “Dos” and Five “Don’ts” When Going Through A Divorce.

Divorce is hard, even if it is the best decision for you.  Divorce signifies the beginning of the end of a dream or hope.  Divorce signifies a loss, and for some, may feel like a failure.  And a divorce may significantly affect more than the married parties, particularly where a child or children are involved.  That is why it is important to act reasonably in a divorce and minimize the potential harm.

With that said, when going through a divorce do NOT:

1.  Lose Perspective.  In a divorce emotions tend to be on overdrive and more often than not will cloud your judgment.  The last thing you want to do is make a decision you will regret.

2.  Retaliate.  Divorce may be painful or, in some instances, infuriating, but retaliation is not going to make the process any easier and will likely backfire or cost you more than it should.

3.  Lie or Omit Important Facts or Information.  The truth eventually comes out, so be forthcoming, even if the facts or information are not particularly flattering to you.

4.  Ignore the Law.  There are boundaries you have to operate within during a divorce.  Ignoring those boundaries could be damaging to you, or worse, to your child(ren).

5.  Let It Consume You.  A divorce will consume you if you allow it, which is unproductive.  There is a reason you are divorcing, so focus on the outcome not all the minutiae in between.

Conversely, when going through a divorce, DO:

1.  Hire An Attorney Who Will Be A Reasonable But Strong Advocate.  You need guidance in a divorce – the law and procedures are not simple to navigate.  But there are attorneys who actually make a divorce more difficult or more expensive than necessary.  Be sure to hire an attorney who has not only the knowledge, but also a passion for their work – you will likely have a better experience if you do.

2.  Focus On the Goal.  The goal is to unyoke yourself from the other party with as little damage as possible so you can go on with your life.  The goal is not to “make the other party pay” or “hurt.”  Be sure to remind yourself of that throughout the divorce because it is likely there will be times it is easy to forget.

3.  Expect Change and Prepare For It.  Life as you know it will change.  One of you will likely need to move out of the home.  You may need to get a job.  Property will need to be divided.  Start taking care of those things as soon as possible and work as much as you can out with the other party. Inventory all assets, liabilities, and such.  The more prepared you are, the more seamless the process may be.

4.  Keep the Interest of Your Child(ren) at the Forefront.  Your child(ren) did not ask for the marriage or divorce – they are the ones who are truly losing.  Be sure to avoid discussing litigation or the other party with them, and give them a third-party outlet to express their thoughts and opinions, such as a counselor.  Chances are the divorce is harder on them than it is on you.

5.  Choose Your Battles Wisely.  See DO #2.  If fighting the battle is not going to assist in accomplishing #2, then like Elsa from Frozen, let it go.

November 7, 2013

Is Your Attorney Working For You?

I often tell people that one of the biggest challenges of litigation is that people are coming to you unhappy.  Unhappiness can rarely be a good starting point, particularly in an adversarial system. That is why it is important to choose an attorney who is not going to intentionally increase that unhappiness, and hope the opposing party does the same.

I once received an inquiry from a person who retained an attorney that has greatly increased his unhappiness.  He wanted a different attorney, but the damage has already been done.  When I reviewed their online record of actions, what stood out most to me was that both sides were fighting – a lot.  Moreover, those fights were over procedural technicalities not important issues of the case, like the best interest of the children.  When attorneys use the Court as their vehicle to fight, it costs you more.  That is why it is important you consult with an attorney prior to retaining them and prepare questions that can assist you in determining if he or she is a good fit for your case.  Some questions you may want to ask include:

  1. What’s your general approach to family law litigation
  2. What’s your general position on alternative dispute resolution?
  3. Do you think there are issues in my case that can be resolved without Court intervention.  If so, what issues and how?
  4. What facts do you think weaken my case?
  5. Have you represented parties in cases similar to mine?  If so, what were the results?
  6. How do you view the position of children in relation to the lawsuit?

As a lawyer my job is to be upfront and honest with a client about their case (the good, the bad, and the ugly), advocate firmly for his or her best interest, and assist as much as possible in minimizing damage already done, whether emotional, mental, or financial.  That is definitely easier to accomplish when there is an attorney on the other side who believes in the same approach.  Unfortunately, there are a number of attorneys who think fighting over the minutiae is how to “win” a case.  That’s why it is even more important you take the time to qualify an attorney who is going to work best for you.

June 5, 2013

Divorce with Child(ren): Minimize the Damage by Focusing on Commonality.

Going through a divorce with a child(ren) can be brutal, no matter how right the decision may be.  However, you can minimize your pain, as well as the child’s pain, by finding commonality.

Commonality is defined as a feature or characteristic held in common.  You would think in a divorce where a child is involved that the shared feature or characteristic between the parties would be obvious, but often it is not.  Typically, when parties are at the point of divorce, emotions are extremely raw and high, making it challenging to see anything other than the worst in the other party.  That is why it is essential to have an attorney who can see the commonality when you can not.  Your attorney should minimize the fuel to the fire, not add to it.

Last week I was the mediator on a highly contentious divorce with three children.  The general consensus seemed to be that finding commonality to a level which would allow the parties to settle, versus go to Court and let the judge decide, was nearly impossible.  However, the parties settled.  The turning point came when it became apparent that the parties shared a desire to be fair in the time each parent was able to spend with their children.  That desire was just masked by a lot of negative emotions.  But once the parties were able to focus on their shared characteristic, that being the desire for their children to spend ample quality time with both parents, they were empowered to come to agreement. 

If you are going through a divorce with a child, or about to go through one, make a list of what characteristics you and the other party share.  Do you want your child to attend a specific school?  Is it important you both be present at school and extracurricular activities?  Do you  desire for your child(ren) to have TWO healthy and stable parents active in their life?  Once you make your list, approach each issue from the point of what you have in common.  Ultimately, that should assist you in minimizing the hurt of a divorce and creating a better situation for all.

 

 

 

March 15, 2013

“Best Interest of the Child” Standard: What Does It Really Mean?

If you are a party to a family law suit where a child is involved, such as a divorce or modification of a parent-child relationship, you have likely constantly heard the term “best interest of the child.”  Section 153.002 of the Texas Family Code states “the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”

It is the platinum standard in all family law actions involving a child, but what does it really mean?

I frequently encounter a party to a family lawsuit who is frustrated with the legal process because what he or she thinks is in the best interest of the child is not what the court says is in the best interest of the child. What that party fails to understand is the end goal, if you will, of Texas family law courts.  The courts strive to assure the child has frequent and continued contact with both parents, is in a safe, stable, non-violent environment, and that both parents are encouraged to share in child-rearing responsibilities.

What does this translate to for a person involved in a family law suit?  In a nutshell it means that the court will prefer minimal contact between a parent, who may even be seen as less-than-desirable, and a child over no contact as long as the child is not in an environment where there is a possibility of suffering harm or injury.  Moreover, regardless if a non-custodial parent has paid the ordered child support, he or she retains their right of access and possession to the child.  If you are the custodial parent, it is not wise to directly or indirectly deny the non-custodial parent time with the child because they have not paid support – Texas courts do not view such behavior kindly.

Family law actions involving children are rarely easy and often evoke much emotion.  They tend to highlight the differences in parenting styles.  However, as challenging as it may seem, try to keep in mind that the courts aim to do what is best for the child.   And what Texas family courts view as best for the child is to have the opportunity to know both parents in a safe, stable, and non-violent environment, and for both parents to have the opportunity to raise the child.

 

February 27, 2013

Thank You for Your Interest in Family Legal Source.

Thank you for visiting the Family Legal Source blog provided by Alley DeRudder Law, PLLC. Family Legal Source is an informative resource for persons facing or dealing with family law matters, such as divorce or custody issues. Family Legal Source is not a substitute for legal counsel nor is it intended as legal advice.

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