Children in Distress: What to Do When You Need Emergency Relief

June 29th, 2009

The right to obtain physical possession of a child, the right to obtain temporary relief without prior notice to the other party, and the right to exclude a party from a residence are all special circumstances in which emergency relief may be requested. 

 

A writ of attachment is a court order requiring a child be produced at a particular location at a particular time.  It is used in situations where a party is entitled to possession of a child under a court order.  It may also be used when an emergency exists and a child is in imminent danger to his or her physical or emotional welfare. 

 

The remedy is extraordinary.  As such, specific facts must be alleged to command the court to issue the writ. The writ should be requested only when necessary to protect the welfare of the child.

 

Section 105.001 of the Texas Family Code provides the court may not render an order, except on a verified pleading or an affidavit which (1) attached the body of a child; (2) takes the child into the possession of the court or into the possession of a person designated by the court or (3) excludes a parent from possession of or access to a child.

 

Requests for writs of attachment are contained in petitions, motions and applications in suits affecting the parent child relationship and are filed ancillary to other requests.  The court must then make a determination as to whether the necessity exists for the writ and the applications are in proper order.

 

The court issues a writ commanding any sheriff or constable to attach the body of a child and deliver the child to a designated place.  That designated place is a location specified by the court who may command that the child be brought to the court or the court may provide a location where the child may be delivered by law enforcement.

 

Habeas corpus actions are brought when a party claiming a right to possession of a child is seeking the court’s help in getting the child physically turned over to that party.   The court shall compel return of the child to the person filing the habeas corpus only if the court finds that the filer is entitled to possession under the order.

 

If the court fails to compel return of the child, the court may issue temporary orders if a suit affecting the parent child relationship is pending.  The court may issues such temporary orders only if the suit affecting parent child relationship is pending and the temporary hearing is set at the same time as the habeas corpus hearing.  The court may then enter an order if a serious immediate question concerning the welfare of the child is shown at the temporary hearing. 

 

The court has defined “serious and immediate question” to mean imminent danger of physical or emotional harm that requires immediate action to protect the child.  If a right to possession is established, the exception to granting the writ occurs when a serious and immediate question concerning the welfare of the child exists.  If the writ is denied after the right to possession under a prior court order is established, the Texas Supreme Court requires the trial court issue a written temporary order containing a finding that there is a serious and immediate question concerning the child.

 

A serious and immediate question, although often alleged, is rarely found in habeas corpus actions.

 

A temporary order, when entered, should not be a final adjudication of custody.  At a minimum, the temporary order should contain the filer’s temporary rights to possession and should set a further hearing.

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A Child’s Testimony and the Law

June 29th, 2009

The Texas Family Code provides for the child to have a voice in the Courtroom.  The “voice” appears in many forms and in many places in the Texas Family Code. 

 

Texas Family Code Section 153.008 allows a child to file his/her preference with the Court, if the child is 12 years of age or older.  This statute infers that the child’s preference is binding if the Court approves the designation.  However, the statute is absent any coercive language.  Many argue that the age of 12 is too young or too immature to understand the impact of a preference.  “12” is not a magical number.  The statute also does not state that the Court must make a determination upon the executed preference. 

 

Although one can view the filing of a preference as a “voice” of the child, many litigants view the filing as a starting place, just a request of the child.  The same child who may sign a preference for one parent having the right to determine he said primary residence, may also prefer to live with the other parent.  The right to determine the primary residence of the child is not necessarily the right to have primary physical possession – or is it?

 

The code continually strives to be gender neutral and avoid the use of the term:  physical custody.  The term “primary physical custody” is not contained in the statute, nor is there any language stating where the child lives or resides.  Each parent gets possession for a certain period of time.  Yet, no where does the code state “I live with mom/dad.”

 

Current law also states that a child may be a witness.  The Code makes certain that family law will be conducted as other civil cases.  Texas Family Code Section 104.002 gives specific rules for admission of a statement of a child who is under 12 years of age, and in cases that involve abuse.  The idea is that the statement of the child will be pre-recorded and not simply a deposition.  The statute is designated to give some comfort to the child in an atmosphere that may allow that abused child to feel safe.  It is clear that 104.002 is designed for cases dealing with abuse only, as it has “exceptions” to what would otherwise be testimony under simple cross examination.  The statute applies to children who are under the age of twelve years, with the idea that the statements are not elicited for purpose of establishing a preference, but for the purpose of establishing fact. 

 

Section 153.009 allows an in chamber interview with the child.  In a non-jury trial or at a hearing, on the application of a party, the amicus attorney or the attorney ad litem for the child, the court SHALL interview in chambers a child 12 years of age or older and MAY interview in chambers a child under 12 years of age to determine the child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence.  The court may also interview a child in chambers on the court’s own motion for a purpose specified by this subsection.

 

In a non-jury trial or at a hearing on the application of a party, the amicus attorney, or the attorney ad litem for the child or on the court’s own motion, the court may interview the child in chambers to determine the child’s wishes as to possession, access or any other issue in the suit affecting the parent-child relationship.  Interviewing the child does not diminish the discretion or the court in determining the best interest of the child.  In a jury trial, the court may not interview the child in chambers regarding an issue on which a party is entitled to a jury verdict.  In any trial or hearing, the court may permit the attorney for a party, the amicus attorney, the guardian ad litem for the child, or the attorney ad litem for the child to be present at the interview.  On the motion of a party, the amicus attorney, or the attorney ad litem for the child, or on the court’s own motion, the court shall cause a record of the interview to be made with the child is 12 years of age or older.  A record of the interview shall be part of the record in the case.

 

Under current law, the interview of a child in chambers is limited to a non-jury case and does not have any place in a jury trial.  However, the statute is clear that the interview can lead to much more information for the Court than simply questioning the child’s wishes as to conservatorship.  There is very little case law to guide the practitioner on this point. 

 

There is nothing in the Family Code that precludes a child from testifying in a deposition.  The use of deposition testimony may be the best approach to obtaining a child’s testimony in a jury trial. The parties may even agree to take the deposition at a place other than the law office, allowing a less hostile environment.

 

The use of pictures and family videos is another way to get a child’s voice heard.

 

 

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BEWARE: Social Networking Sites and the Law

June 25th, 2009

Social networking sites originated in the mid-1990’s, but only recently began to expand across the web.  Two of the largest social networking sites are MySpace (with over 118 million members) and Facebook (with over 120 million members). 

 

The concept of social networking is easy enough.  You begin by filling out a profile, then you look for people you know.  When you find someone, you click to add him or her as a friend. Once this is done, you can see who your friends know, who your friends’ friends know, and so on.  Social networking is a wonderful avenue for connecting with persons across the globe, but must be done with caution.  Keep in mind, pictures, comments, and other information placed on your site may be accessed in any number of ways and may upon proper predicate be used against you in litigation. 

 

Family law practitioners can uncover a wealth of information using social networking sites.  Many firms are now making it routine to perform MySpace, Facebook and Match.com searches to see if they can obtain useful information on the opposing party, witnesses, or experts.  Such diligence has paid off in some cases.  In one case in particular, pictures were discovered of a wife’s sexually explicit boasts on her boyfriend’s MySpace page.  The evidence obtained assisted lawyers in securing child custody for the husband.  In another case, an attorney was able to undermine an opposing spouse’s credibility when she confronted him with his MySpace page describing him as “single and looking.”  While yet another case was won because a husband presented himself as “divorced” and gave a long description of the type of woman he wanted to meet.  Information obtained from these sites can be very useful when counsel is trying to provide proof of a spouse’s infidelity.  Therefore, is important to carefully and periodically monitor what you place on your social networking site. 

 

Social network evidence may in most cases also be used in child custody cases.  Pictures of a parent in various compromising situations while a child or children are in the parent’s custody can present a major problem in a custody lawsuit.  Partying, drinking, and negative statements about children used on social networking sites can be offered as evidence in Court.  Parents should use caution when placing pictures and other information on their social networking site.

 

Keep in mind that your employer can access your social networking site.  In one case, a partner in one of Dallas’s larger law firms used MySpace and Facebook to uncover details of a client’s former employee and her plans to circumvent a non-compete agreement.

 

Social networking has also been used in sexual harassment cases.  In Houston, Texas, a plaintiff was portrayed as a modest, innocent “wannabe nun.”  The opposing counsel found a MySpace page that painted a very different picture of a plaintiff, with numerous photos of her in scanty or provocative attire and engaged in suggestive horseplay at bars and with friends. 

 

Evidence obtained from social networking sites has been used in personal injury and in criminal cases.  Attorneys are running cyber checks on jury pools.  Many firms are running cyber searches on new clients, witnesses, opposing parties and experts. 

 

In the ever growing and expanding world of cyberspace, it is becoming increasingly important that you inform your counsel of any and all internet usage, sites and blogs which you have joined or participated in so that they may represent you and be properly prepared.

 

 

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