Mental Illness and the Child Custody Case

November 25th, 2009

According to the National Institute of Mental Health, an estimated 26.2 percent of Americans age 18 and older – about one in four adults – suffer from a diagnosable mental disorder in a given year. This figure translates to 57.7 million people. Many people suffer from more than one mental disorder at a given time. Nearly half (45 percent) of those with mental disorder meet criteria for two or more disorders, with severity strongly related to co-morbidity. Mental illnesses are biologically based brain disorders. A diagnosed mental illness in a custody case may not only affect the eventual outcome of the case, but may also determine how counsel prepares his or her particular case strategy.

There are degrees of severity and levels of functioning with all mental disorders, and in the context of a contested custody case an extreme position can be easier for an attorney to handle. The fact finder is evaluating each parent’s ability to meet the child’s needs and the parties’ particular parenting abilities. A psychiatric diagnosis is not in and of itself a measuring tool. The specific acts of each parent must be examined in detail.

One important factor to consider is a request for psychological testing or the appointment of a counselor or psychiatrist to evaluate the parties. If the party with the mental illness has not admitted they have an illness, the results of court-ordered evaluations may force the issue and may also provide additional evidence to support a modification of temporary orders.

Counsel may want to recommend to the court that the child attend therapy. You may suggest the use of the therapist, psychiatrist, or psychologist of the person with the mental disorder for recommendations to the court of the parent’s visitation with the child.

Counsel may also want to consider a temporary injunction in addition to the standard temporary injunction for the preservation of property and protection of the parties and the children. Some issues to consider are preventing the use of alcohol within 24 hours of possession of the children; preventing the mentally ill party from operating a motor vehicle while taking medications, and preventing the parties from making disparaging remarks regarding the other party.

It is important that counsel identify and define the particular drugs the mentally ill patient is taking. Counsel should request a HIPPA Release (specifically related to mental health disclosures) allowing access to medical and prescription drug records of the mentally ill party. Research should then be performed as to the effects of each drug on the mentally ill person.

It may be necessary to have an Amicus Attorney appointed to represent the interests of the children. The Amicus Attorney has a powerful role in the contested custody case and can assist in gaining information on the mentally ill party. All parties should cooperate fully with the Amicus Attorney for the best interest of the children. It is important to make yourself available to the Amicus Attorney and to be pro-active in setting up appointments. It is important that counsel instruct you as to what to say and what not to say to the Amicus Attorney. It is also critical that counsel respond to any discovery propounded by an Amicus Attorney timely.

Be sure to educate yourself about the particular mental disorder you are dealing with. Make sure your experts have experience in handling the particular mental disorder in questions. Counsel should use the testimony of experts to offer aid and/or educate the judge and/or jury so they have a clear understanding of the mental illness and its foreseeable consequences to the spouse and/or family members.

Tags: , , , , , , , , , , , , , , , ,
Posted in Divorce & Family Law | 2 Comments »

Contracts in Texas

November 4th, 2009

A contract is defined as a promise or set of promises with legal consequences.  Normally, contractual promises are enforceable in a court of law.  The law gives official recognition of the written contractual promises and offers remedies when the promises are not fulfilled.

 

The Supreme Court of Texas has noted that every contract includes an element of confidence and trust that the parties will faithfully perform their obligations.  There is no duty of good faith and fair dealing unless the duty is created by express language in the contract or a special relationship of trust and confidence exists between the parties to the contract.

 

In Texas, the requirements for a valid written contract are: 

1) an offer;
2) an acceptance in strict compliance with the terms of the offer;
3) a meeting of the minds (which is actually a subpart of the accepted elements, not an independent element;
4) each party’s consent to the terms;
5) consideration; and
6) execution and delivery of the contract with the intent that it be mutual and binding.

 

A basic element of the contract is the promise, which may be an express or implied promise made by one party for the purpose of assuring another person that a particular action or restraint from a particular action will occur.  This is objectively determinable from the parties’ words or actions and not from either party’s subjective intentions. 

 

Contracts may be unilateral or bilateral.  A unilateral contract has only one promisor; the promisee makes no commitment.  Mutuality of obligation is not essential for a unilateral contract to be formed.  A unilateral contract is completed by the promisee’s performance of the act or acts called for by the promisor, not by the promisee’s making of any reciprocal promises.  The promisor becomes bound to provide the promised benefit when the promisee delivers the bargained-for performance.  There is no binding unilateral contract unless the promisee performs, or at least partly performs the acts requested by the promisor.  Until such time, the promisor may revoke its offer.  An option agreement is a common unilateral contract.  An option agreement is a promise, or offer, by the optionor that the optionee may accept or reject.  Until the option is exercised in accordance with the offer, the contract remains unilateral.  The contract becomes binding when the option is properly exercised.

 

A bilateral contract is one in which there are mutual and/or bilateral promises made between the parties.  If the parties have entered into a bilateral contract in which their promises are the only consideration for the agreement, their obligations must be mutual and binding for the contract to be valid.  A common example of a bilateral contract is one in which one party promises to deliver goods to the other, and the other party promises to pay the specified purchase price.

 

There must be an offer, an acceptance and consideration for a contract to be recognized and enforceable. To prove a valid offer a party must show
1) the offeror intended to make an offer,
2) the terms of the offer were clear and definite, and
3) the offeror communicated the essential terms of the offer to the offeree. 

 

The offer may dictate the manner, time and place of acceptance of the offer.  Under such circumstances, an offer not accepted in a timely or proper manner lapses.  When an offeree rejects an offer, the offer is terminated.

 

An acceptance must be identical to the offer or there is no binding contract.  Generally, an acceptance must not change or qualify the terms of the offer or the offer is rejected.  When an offer prescribes the manner of acceptance, its terms must be followed in such manner of acceptance in order to create a contract.  If an offeree fails to accept in the prescribed manner and attempts to accept in some other manner, a contract is formed only if the offeror waives strict compliance with provisions concerning the manner of acceptance. 

 

An oral offer may be accepted by execution of a written instrument that embodies the terms of the agreement.

Further, a written offer may, in some circumstances, be accepted orally.  Acceptance may also be shown by conduct. 

 

An acceptance is valid only if made before an offer is revoked or lapsed.  An acceptance takes effect and creates a contract when it is communicated to the offeror.  Acceptance is not effective when some abstract conduct other than communication to the offeror occurs.  The accepting party may change his or her mind until the act of acceptance is actually communicated to the offeror. 

 

Although an acceptance is effective only when communicated to the offeror, when an offer may be validly accepted by mail, the “mailbox” rule provides that the communication has been made and the contract is binding when the offeree deposits a properly addressed letter of acceptance in the mail, regardless of whether it is actually received by the offerror. 

 

Mutual assent is often described as a “meeting of the minds.”  Evidence of mutual assent in written contracts generally consists of the parties’ signing the contract and delivery of the contract with the intent to bind.  To determine whether a meeting of the minds existed, a court reviews what the parties actually said and did.  The parties’ failure to agree on a material term precludes a meeting of the minds necessary for a valid contract. 

 

In some cases, what appears to be a valid offer and acceptance results in only a voidable contract because one party’s consent was, in fact, procured by fraud, undue influence, duress, or mistake. 

 

Under Texas law, a party must protect personal interests by reading a contract before signing it.  Absent fraud, the person is not excused from the consequences of failing to meet this obligation.  If a person signs a contract without knowledge of its contents, they are presumed to have consented to the terms of the contract.  Claims of belief that provisions differed from those plainly set out in the written contract are not generally admissible.

 

Do you need a business contract or an employment contract reviewed by an attorney? Contact Dallas business contract attorney Mark Nacol today!

 

Tags: , , , , , , , , , , , , , , , , , , , , , , , ,
Posted in Business Transactions | 1 Comment »

The Whistleblower – Part IV – Qui Tam Claims

November 4th, 2009

As reported in a front page story of today’s Washington Times in September of 2009, internationally respected whistleblower, Bunnatine Greenhouse, has issued an appeal to the U.S. Senate to pass strong protections for all federal employees. Mrs. Greenhouse was the only major Bush Administration executive to challenge the Halliburton “no bid” Iraq reconstruction contracts.  Ms. Greenhouse wrote a letter to Congress.  “We urge every American to read Bunny’s letter and to TAKE ACTION!,” said Stephen M. Kohn, NWC Executive Director.  “This is not a Democrat or Republican issue.  This is not a partisan issue. This is an issue that goes to the heart of accountability and oversight.

It is estimated that almost 10% of the U.S. annual budget is paid to persons and/or companies defrauding the government.  Some overcharge the government for products sold directly to the government, while others engage in government contract fraud, defense contractor fraud, Medicare fraud, Medicaid fraud, or other public benefit fraud. Any situation in which the government has been defrauded should be closely examined.  To minimize fraud committed against the government, Congress passed the False Claims Act. 

According to an annual report issued by the Department of Justice, approximately $1.2 billion was recovered in whistle blower claims and lawsuits filed by private citizens through their lawyers in the fiscal year October 1, 2000 to September 20, 2001, with more than $210 million of those funds being awarded to whistleblowers themselves.  The amount is continuing to grow.  It is estimated that $3.1 billions was collected from businesses defrauding the government in the year 2005.

The False Claims Act was Amended and strengthened in 1986.  The amendments broaden the definition of fraud to include submitting claims with deliberate ignorance or reckless disregard for the truth of statements made in the claim for U.S. Government spending or funds upon which the fraud claim is based.  The burden of proof that must be met by the qui tam attorney is a preponderance of the evidence, that is that the evidence presented is more likely true than not.  The 1986 amendments included provisions to protect the federal whistleblower from retaliatory action by their employer.


A person who has knowledge of fraud against the government may retain a lawyer and file a court case under seal against the company or person committing the fraud.  Following the filing of a lawsuit, the United States attorney has sixty days to investigate the allegations.  The U.S. Government intervenes in approximately 25% to 33% of all whistleblower cases.  If the U.S. attorney finds that fraud was committed, then the U.S. Government takes control of the case and either enters into a settlement or pursues the lawsuit itself. 

If the government fails to intervene, the private citizen may pursue the action independently.  If the lawyers are successful in proving fraud against the government, substantial penalties can be assessed, which can be up to 3 times the amount the defrauder stole from the government (the tax payers).  Out of damages imposed the whistleblower may receive between 10% and 30% of the recovery, in some cases recovery could be millions of dollars. 

Tags: , , , , , , , , , , , , ,
Posted in Whistleblowing | No Comments »

« Older Entries

Serving clients throughout Texas, including Collin, Dallas, Denton, Ellis, Grayson, Kaufman, Rockwall and Tarrant counties and the communities of Addison, Allen, Arlington, Carrollton, Dallas, Fort Worth, Frisco, Garland, Grapevine, Highland Park, McKinney, Mesquite, Plano, Richardson, Rowlett and University Park, Murphy,Wylie, Lewisville, Flower Mound, Irving, along with surrounding DFW areas.