Interstate Jurisdiction : Child Custody across State Lines
During the Holiday season many Texas parents become very concerned over sending their child to the non-primary conservator parent’s home for a visit. Many Children will cross state lines to see their non-primary conservator parent and there is always a fear that the child may not be returned to his/her home state. What can you do if this does happen?
The State of Texas follows a uniform law regarding determination of appropriate state jurisdiction in custody matters known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and related statutes which enforce or set procedures regarding proper jurisdiction such as the Parental Kidnapping Prevention Act. Texas has adopted these statutes. The Uniform Child Custody Jurisdiction Enforcement Act defines which state has or may maintain jurisdiction in a particular case and often mandates that other states recognize decisions handed down by the state determined to have jurisdiction.
The Act states, among other things, that a court may rule on custody issues if the Child:
• Has continually lived in a home state for 6 months or longer
• Was living in the state before being wrongfully taken elsewhere by a parent seeking custody in another state
• Has an established relationship with people (family, relatives or teachers), ties, and attachments in the state
• Has been abandoned: or is safe in current state, but could be in danger of neglect or abuse in the home state
How can Continuing Exclusive Jurisdiction be lost?
1. When A Texas Court determines that neither the child, or a child and one parent have a significant contact with Texas, and substantial evidence is no longer available in Texas concerning the child’s care, protection, and personal relationships
2. Texas or another state determines that the child and the child parents do not presently reside in Texas.
What about Jurisdiction to Modify an Existing Order?
In the absence of temporary emergency jurisdiction, Texas cannot modify a child custody decision made by another state’s court unless or until a court of this state has jurisdiction to make an initial custody determination and one of the following occurs:
1. Another State determines it no longer has continuing jurisdiction or finds that Texas would be a more convenient forum.
2. A court determines that the child and the child’s parents do not presently reside in the other state.
What about Temporary Emergency Jurisdiction?
Temporary emergency jurisdiction is reserved for very extraordinary circumstances. The court has and may assert jurisdiction only when a child is present in the state and has been abandoned or is in need of protection because of a threat or subjected the child to mistreatment or abuse.
When involved in an international child custody case where the child has been abducted or is wrongfully retained, the issue may be determined if the International Child Abduction Remedies Act, 12 USC Section 11.601-11610, of the Hague Convention, is applicable. If so, The US State Department Office of Citizen & Counselor Services should be contacted or any attorney may file suit for return of the child.
These interstate jurisdiction cases are very intensive. Get to a knowledgeable interstate jurisdiction attorney and assert your rights quickly. Protect you and your child’s rights to have a normal child/parent relationship without the fear of abduction!
Contract Killers : Arbitration and Selected Forum Provision
Contracts are the concrete pillars of our capitalistic society and govern all transactions promoting trust and stability within our American culture. An individual that enters a complex contract regarding a commercial lease, any professional services, or business and franchise agreements must be aware of two killer provisions that may be game changers if the need for litigation arises.
First, any individual prior to entering a binding contract must first read the contract thoroughly to see if there is an arbitration provision. An arbitration provision has the power to tie the hands of any contracting party. An arbitration provision forces a contracting party into a tribunal of selected arbitrators thus precluding a contracted party from obtaining their day in Court. These provisions must be carefully considered and examined before an individual signs a contracted agreement. This is a non-extensive list of potential problems an arbitration provision may cause:
- Location, Location, Location. An arbitration provision may dictate the location of the arbitration process;
- Attorney’s fees. An arbitration provision may dictate who pays for the attorney’s fees during the arbitration process;
- Selection of arbitrators. An arbitration provision may dictate the selection process used to determine the tribunal of arbitrators which will hear the case;
- Arbitration Provisions are favored by Texas and the Supreme Court and it is difficult to invalidate an arbitration provision.
Second, any individual prior to entering a binding contract must next read the contract thoroughly and determine if a Selected-Forum provision exists. A Selected-Forum provision may dictate (1) the choice of law that will be used while interpreting the contact and (2) the venue or jurisdiction that will apply. Texas favors Selected-Forum provisions and these provisions are difficult to invalidate. This is a non-extensive list of potential problems with Forum-Selection clauses:
- Location, Location, Location. A Forum-Selection clause may force the contracted parties to bring a suit in another state other than the state the contract was signed in;
- Choice of Law. The Selected-Forum Clause may force the contracted parties to utilize another State’s law;
- The Selected-Forum Clause may also include torts. If the Selected-Forum Clause is specific enough it may encompass torts (fraud, negligent misrepresentation, tortious interference with contract) and preclude a party from bringing a tort dispute in a State to which one of the parties reside;
- Selected-Forum clauses are favored by Texas and are difficult to invalidate.
Be wary of arbitration provisions and Selected-Forum clauses. They both may be deal breakers for certain businesses. If you have signed a contract with these provisions there may be remedies but you must consult an experienced attorney.
Julian Nacol, Attorney at Law
Nacol Law Firm P.C.
(972) 690-3333
Contesting a Will in Texas
Typically, standing to contest the validity of a Will is limited to two classes of persons:
1) a person who is named on the face of the Will (i.e. any beneficiary); and 2) a person who would inherit from the testator if the Will was invalid.
The most common grounds, or reasons, for contesting a Will are:
- Undue influence – is an equitable doctrine, which involves one person taking advantage of a position of power over another person. In such cases, free will to bargain is not possible.
- Duress
- Election against the Will by a widowed spouse or orphaned children
- Fraud – a deception made for personal gain or to damage another individual
- Insane delusion
- Testamentary capacity (same as a lack of disposing mind and memory) – in the common law tradition, testamentary capacity is the legal term used to describe a person’s legal and mental ability to make a valid Will. This concept has also been called sound mind and memory.
Adults are presumed to have the ability to make a will. Litigation about testamentary capacity typically revolves around charges that the testator, by virtue of senility, dementia, insanity, or other unsoundness of mind, lacked the mental capacity to make a will. In essence, the doctrine requires those who would challenge a validly executed will to demonstrate that the testator did not know the consequence of his conduct when he executed the will.
Certain people, such as minors, are conclusively deemed incapable of making a will by the common law; however, minors who serve in the military are conceded the right to make a will by statute in many jurisdictions.
Business Contracts : A Perspective for an Employer
The best employment law defense counsel takes every aspect of a case into account, but most importantly the impact a lawsuit may have on the reputation and finances of the Company. Employers must be aware of state and federal laws that govern employee hiring, compensation and treatment. Federal and State employment laws concerning wages and overtime are complex and impose significant responsibility on the employer.
Other things an employer should consider are:
- Anti-discrimination laws
- sexual discrimination
- age discrimination
- disability discrimination
- race discrimination
- Hiring practices (contracts)
- Compensation (wages, bonuses, paid leave, vacation pay, benefits, severance packages)
- Family and Medical Leave
- Termination
- Immigration matters
- Sexual harassment
- Intellectual property rights
Employers should also be cognizant of employees that are allowed access to intellectual property information created or developed for the Company by employees in the course of their employment.
There are a number of questions to be addressed by the Employer both at the time of hiring personnel and at regular intervals throughout the course of their employment, such as:
·The scope of the employees duties, and how those are to be documented;
·Their level of seniority;
·Whether their duties involve a requirement that they invent (or contribute to inventions);
·The employee’s propensity to invent;
·The access which the employee has to the employer’s resources (both during and after hours) for their own purposes.
·Proprietary Information Agreements
·Non-competition Agreements, where indicated
On the basis of recent decisions of the Federal Court, only very brave employers are likely to decide that they do not require employment agreements with their senior employees or with those employees privy to confidential or proprietary information.
If you are an employer facing legal issues in any aspect of employment or intellectual property rights, consult Mark A. Nacol of The Nacol Law Firm for guidance.
The Nacol Law Firm PC Law office of Attorney Mark Nacol
Serving clients in the Dallas – Fort Worth Metroplex area for over 30 years
Tel: 972-690-3333
HOA Litigation in Texas
Texas Home Owner Associations ( HOA ) : Are You in For Problems?
A HOA has the power to make every neighbor’s’ life a little easier by establishing restrictions that keep the neighborhood clean, safe, and accountable.
But certain issues , depending on the by-laws of your HOA, such as unjustified forced foreclosures, failure to repair plumbing or foundations, trying to force you to construct or build a fence on your separate property are worth seeking legal advice. An experienced attorney is needed if you are to take on a Texas Home Owner’s Association. Many HOA by-laws are open to interpretation regarding what a Texas HOA must repair and what is not responsible for under the HOA by-laws. To battle a strong HOA organization it takes an experienced real estate lawyer and if you have been a victim of HOA oppression seek an experienced lawyer immediately.
Julian Nacol
Dallas TX Attorney
Nacol Law Firm P.C.
(972) 690-3333
NACOL LAW FIRM P.C.
8144 Walnut Hill Lane
Suite 1190
Dallas, Texas 75231
972-690-3333
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization