Child Custody: Staying Close to Your Kids
When a custody lawsuit commences, parents need to be thinking primarily about what is in the best interest of the child(ren). The needs and rights of the child(ren) are of paramount importance in a child custody case and the court’s primary focus.
In accordance with Section 153.002 of the Texas Family Code, parents are ordinarily considered to be equal in their right to parent their child(ren). It is the best interests of the child(ren) that are paramount, and the aim of the Texas Family Code is to:
1. Assure that child(ren) will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child(ren);
2. Provide a safe, stable, and non-violent environment for the child(ren); and
3. Encourage parents to share in the rights and duties of raising their child(ren) after the parents have separated or dissolved their marriage. If you are a parent who is preparing for a custody battle, you would do well to make this your primary goal throughout the litigation.
Vengeful parents often engage in destructive conduct by trying to move out of state in an attempt to separate the child(ren) geographically from the non-custodial parent. If vengeance is the custodial parent’s primary motive, this has many benefits: it becomes more difficult for the non-custodial parent to exercise visitation, and at the same time makes it more difficult (and expensive) for the non-custodial parent to seek relief through the courts for denied visitation or other wrongful acts by the custodial parent. A move-away, depending upon distance, can also isolate the child(ren) from the non-custodial parent. If you suspect your spouse may do this, you need to be prepared and act proactively. A key item to have incorporated into final paperwork is an “anti-move-away” clause. Essentially, this states that if the custodial parent moves more than a certain number of miles away, custody changes to the remaining parent and/or restricting the permanent domicile of the child(ren) to designated counties.
Stay meaningfully involved in your child(ren)’s lives on a regular and continuing basis. Being heavily involved with your child(ren) for very short periods of time will not bring favor in the eyes of the court.
Keep a detailed record or diary of the details of how much you have been involved with your child(ren)’s school and extracurricular activities. Attend school meetings. Take pictures. Schedule family vacations. Visit relatives and friends and schedule sleepovers with your child(ren)’s peers. Take your child(ren) to the dentist and the doctor. Don’t spoil your child(ren), reasonably discipline your child(ren) when necessary and document why you took such action. Take advantage of extra time extended you by your spouse and try to extend visitation when possible if only for a couple of hours. Initiate and support birthdays, school activities, and college requirements. Document all relevant case issues and facts.
Keep in mind that your child(ren) are not equipped to deal with the range of emotions experienced by an adult, and that ventilating your personal difficulties on them is not only unhelpful, but can be a form of abuse and can create lasting emotional scars and is viewed with disfavor in the courthouse.
Parents preparing for custody cases before the court in Texas must be mindful of the extraordinary damage they can do when denigrating the other spouse in front of their child(ren). Such behavior is not only damaging to the child(ren), but may and usually will, be taken into consideration by the court. A noticeable failure to maintain self-control may be considered an indicator of an inability to parent.
If you can remain involved in your child(ren)’s lives enough to find out how his or her relationship is with your former spouse, you may be able to build a better case to show the court you are the better custodial parent, and in the meantime productively provide for your child(ren) in his or her best interest.
Texas Out of State Child Relocation and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
In today’s hectic pace, moving to another state for business, family demands, or pleasure is a very common occurrence. But what about the family that is separated by divorce or separation and share custody of their children? What happens to this family situation when Mom or Dad decides to take another job or wants to move to another state and take the children to or from the other? A Child Custody Relocation Case?
Sadly this happens frequently. Most Texas attorneys employ a geographic restriction in divorce decrees for couples who have children. These restrictions dictate that the Child and Custodial Parent must live within a school district, County of Domicile, or consecutive contingent counties near the non-custodial parent. But what happens if this restriction clause is not contained in the divorce decree or if Dad/Mom were never married?
Forty Nine States, including Texas have adopted the UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) drafted by the National Conference of Commissioners on Uniform State Laws in 1997. The UCCJEA is a very helpful law since all states but one participate in the determination of the ”HOME STATE” and which jurisdiction will handle the family case. UCCJEA also helps to protect non-custodial Parents fighting for child custody out of state when their children have been moved to another state or over 100 miles away from them.
How does The State of Texas treat an initial Child Custody determination?
Texas Family Code 152.201 of the UCCJEA states, among other things, that a court may consider custody issues if the Child:
*Has continually lived in the state for 6 months or longer and Texas was the home state of the child within six months before the commencement of the legal proceeding.
*Was living in the state before being wrongfully abducted elsewhere by a parent seeking custody in another state. One parent continues to live in Texas.
*Has an established over significant time relationships with people (family, relatives or teachers), ties, and attachments in the state
*Has been abandoned in an emergency: or is safe in the current state, but could be in danger of neglect or abuse in the home state
Relocation is a child custody situation which will turn on the individual facts of the specific case, so that each case is tried on its own merits.
Most child custody relocation cases tried in Texas follow a predictable course:
- Allowing or not allowing the move.
- Order of psychological evaluations or social studies of family members
- Modification of custody and adjusting of child’s time spent with parents
- Adjusting child support
- Order of mediation to settle dispute
- Allocating transportation costs
- Order opposing parties to provide all information on child’s addresses and telephone number.
There is another important cause of action in Texas where the court will “take “EMERGENCY JURISDICTION’ over a case even though another state has the original jurisdiction. If the opposing party can prove that a legitimate emergency exists and Texas needs to assume the jurisdiction. These emergency situations could be abuse of the child, abandonment or cause neglect of the child, or any action that would put the child in immediate harm’s way.
The Nacol Law Firm P.C. @ www.nacollawfirm.com is committed to helping parents have the right to have frequent and continuing contact with their child at all times and encourage parents to co-share in the rights and duties of raising a stable, loving child. Many times, because of parental alienation or other personal factors, a child will be taken away from the non-custodial parent and this can cause some serious mental and behavior problems for the child which could follow her/him into a lifetime adult situation.
Sometimes you can settle, SOMETIMES YOU FIGHT FOR YOUR RIGHT! We can help!
What Will Happen to My Pet When I Die?: Providing a Future for your Pet
As a responsible pet owner, it is important to ensure their quality of care continues should something unexpected happen to you.
Is a will the best option?
A will takes effect only upon your death. It may not be probated and formally recognized until weeks or possibly months later. If legal disputes arise, the final settlement of property may be prolonged. Even the determination the rightful new owner of a pet may be delayed. This does not mean that you should not include a provision in your will to provide for your pet, it simply means that you should explore additional documents that compensate for a will’s limitations.
Setting up a Trust
A trust can provide for pets immediately because you determine when your trust becomes effective. When you create a trust for your pet, money is set side to be used for the pet’s care and trustees are specified to control the funds.
A trust can be written to exclude certain assets from the probate process so that funds are more readily available to care for your pet and can be structured to provide for a pet during a lengthy disability. Furthermore, trusts are legal entities that are relatively expensive to administer and maintain
An attorney can make sure that the trust is specific as to the animal, valid and enforceable. However, tying up a substantial amount of money or property in trust for an animal’s benefit may prove to be controversial.
Power of Attorney
A power of attorney, which authorized someone else to conduct your affairs for you while you are incapacitated have become a standard practice. The power of attorney can be written to become effective upon your physical or mental incapacitation and continue in effect upon your death. They are much simpler than trusts and do not create a legal entity that needs to be maintained by formal means. Provisions can be inserted authorizing your attorney-in-fact to take care of your pets, expend money to do so, and even place why our pets with permanent caregivers if appropriate.
Like other legal devices, the power of attorney is a document that by itself cannot ensure your pet is fed, walked, medicated, or otherwise cared for. It is simply a tool to assist your efforts in thinking ahead and finding temporary or permanent caregivers who can take over the care of your pet should the immediate need arise.
What is a reasonable sum to leave?
Documents should stipulate the amount and frequency of payments and whether they should be adjusted for inflation.
To answer this question you must take into account the age, health, estimated lifespan and number of pets involved. It also depends on how much care you wish the animal to receive. If the animal gets cancer or some other ailment, what kind of treatment do you want to provide? You may also want to consider burial or cremation and ceremonial expenses.
Leaving too little money may compromise the future care of your pet. Leaving too much money may cause problems with potential heirs.
Finally, you will want to make sure you include the cost involved in paying the caretaker and/or trustees for their time and effort.
Setting Up Your New Texas Business
You have decided that now is the time to start up your new business. Where do you start? This can be a very scary proposition for many people! Starting up a new business or forming a new entity doesn’t have to be complicated but it needs to be done in a smart way. The key in structuring the entity in which you will do business is to “Effectively win your lawsuit before it is filed against you.” Whether starting a business by yourself or with partners, proper legal planning will enhance the enforceability and specifically define the terms of your business agreement.
Being a sole proprietor has been the American way for many decades and has made the United States a fertile ground for growth and abundant profit. Today, however, a sole proprietorship is not legally smart, creates unnecessary vulnerabilities to the owner, and may cause unwanted complications in the future. The smart choice is to enjoy the benefits and protection provided by a legal entity in the event of loss of management or financial control, for example, a six-year-long recession, cancer, death or divorce.
Many business failure issues and major legal expenses may be avoided if you are smart from the start.
Whether you choose to set up a Texas Corporation, Limited Liability Company (LLC), Limited Liability Partnership (LLP) or General Partnership, you create liability protection for you, your partners or investors by sheltering personally-owned assets and accounts. Should your company fail, you will enhance personal protection and avoid having to invade your children’s education funds and other personal funds, accounts and assets to pay debts of the properly-formed and managed business.
There are number of ways to maintain control of your business but this must be planned and implemented before the business commences.
1. Define the terms of the entity.
2. Make sure the major governing provisions and terms of the entity are clear and specific.
3. Protect the owners in the event of the death of fellow owners and claims of their estate or surviving spouse.
4. Protect yourself against a lazy or incompetent partner.
5. Protect the business in case of a divorce, either yours or other key people.
By choosing any of the statutorily-provided entities in Texas, you have the right to decide the terms of who runs the company and how and when the profits will be distributed. If there are problems with one of the fellow owners, buy-sell agreements are crucial and very effective for promoting agreed resolution or buy- outs, or dealing with death or divorce.
Planning for unpredictable, but common, major life events make legal and financial sense. Getting good legal advice now saves time, money and hassle in the future.
Holiday Violations of Visitation During Covid 19
The holidays are frustrating times for both spouses when undergoing divorce proceedings that involve custody issues with children. If a spouse violates a temporary custody order, he or she may not face consequences at the time but must explain their actions to a district judge in the future.
If a temporary custody order describes in detail the periods of possession during the Christmas holiday, this order will be binding on both spouses. The temporary custody order is binding civilly and NOT criminally. This is an important distinction to make before you decide to call the police. All of family law, with few exceptions such as domestic violence and protective orders, are governed within civil jurisdiction and not criminal jurisdiction. Because temporary custody orders involving children are governed within civil jurisdiction, a police officer has no grounds to enforce the order.
Now if your spouse refuses to release the child into your custody at the prescribed time mandated within the temporary custody order then there are certain things that you should do to ensure it is properly documented for future civil contempt proceedings.
- Call the police!!! Many police departments will not respond because temporary custody orders are not criminally enforceable, but if the police department decides to respond then you may request a police report to be filed, noting that your spouse deliberately violated the temporary custody order. This may be used in Court to persuade the judge to hold your spouse in civil contempt.
- Save any text messages, emails, or recorded phone calls that demonstrate your spouse’s refusal to deliver the children into your custody during Christmas.
- Call your attorney and notify him of your spouse’s refusal to deliver the children into your custody.
- Do not get into a physical confrontation with your spouse!!!
By completing these four simple tasks you will be gathering evidence to hold your spouse in civil contempt of Court. After the Christmas Holiday season is over your lawyer, with your consent, will fill a motion to hold your spouse in contempt of Court for violation of the temporary custody order. If your spouse is found in civil contempt of Court, he or she may be fined, ordered to jail until the fine is paid with certain limitations, and the violation may be a basis to modify the previous temporary custody orders. This will be at the judge’s discretion.
Though you may feel helpless at the time, justice will be done through the district Courts in the form of civil contempt. Judges usually look down on a spouse that blatantly violates a temporary custody order, especially during Christmas. Just relax and have patience if your spouse refuses to deliver the children to you, justice may take time but in the end it will be served.
With the Covid19 virus pandemic, many changes in Texas have happened with visitation issues. On March 13, 2020, the Texas Supreme Court issued an Covid19- Virus Emergency Order: divorced /single parents should go by the originally published school and visitation schedule in their current decree. This includes Holiday Visitation Schedules. The Counties of Dallas, Collin, and Denton also came out with standing orders re; exchanges relating to possession and access to children considered “an essential activity”.
Now is the time to contact the other parent to ensure that your visitation time with your child will be insured without any problems. If not, contact an attorney to make sure that the Holiday Season visitation with your child will happen happily.
Nacol Law Firm P. C.
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
