Supervised Visitation – Part II
I Have Been Ordered Into Supervised Visitation With My Child –
Is it Possible to Return to a Standard Possession Order?
In a perfect world, parents going through the divorce process work together for the best interest of their child(ren) and are allowed possession of the child(ren) approximately fifty percent of the time. However, issues such as drug addiction, mental or physical abuse, neglect, and severe mental illness may force a parent to petition the courts to order limited or supervised visitation. On rare occasions, a parent is regrettably ordered into supervised visitation due to false or misleading information. Regardless of the circumstances, court ordered supervised visitation is costly, may substantially limit the amount of time a parent is allowed to spend with their child, and can create a difficult transition into a standard possession order.
If the court has ordered supervised visitation, seek proper counsel from a qualified attorney. If a case, rightly or wrongly, has been established for supervised visitation by the evidence or circumstances or court order, you will need to build a case for standard or standard expanded possession.
During a supervised visit it is imperative that you keep any comments on the case to yourself. Avoid giving any opinions on the existing judgment or the supervised visitation order. Within reason, limit your conversation to what is strictly necessary for the child to have a safe, happy and healthy visit. Be polite and courteous with the monitor even if you develop strong negative feelings regarding him or her. Continue to enforce the importance of seeing your child and spending quality time with your child whenever possible. Never, under any circumstances, talk negative about the other parent to or in the presence of the child or the monitor. Never, use vulgar or abusive language toward or in the presence of the child or the monitor. The visitation monitor may be an important asset at future hearings regarding a change from supervised visitation to a standard or expanded possession order.
Make every scheduled visit without fail. If unable to make a scheduled visit, contact the monitor as soon in advance as possible with an appropriate explanation and request an alternative date. Bring family members whenever possible and clear it with the visitation monitor prior to their attendance. Bring cards and gifts, not only from you but from family members. If visits are going well, request off-site visits at a nearby restaurant or park. Though visits may be costly, the more frequent you are observed in a loving relationship with your child, the better the chance of supervised visitation being suspended.
Involve a psychiatrist or qualified counselor in your visitation schedule if at all possible. Such professionals are key as you begin to build your case for standard possession since they are able to make suggestions to the Court as to how visits are progressing and the manner in which standard possession can be accomplished.
If you have been ordered to have drug or alcohol testing performed, take each test as scheduled and make certain you are free of drugs and alcohol. A positive drug or alcohol test may place you back at square one and undermine your progress.
If a social study is ordered, dispose of any prescription drugs not needed or which are out of date and put away any alcohol in your home. Make certain your home is clean and orderly when the evaluation is performed. In such cases, a qualified professional will come to your home and evaluate the environment for the best interest of the child. If you have been ordered into supervised visitation because of drugs or alcohol, it is imperative that these items not be sitting around the home when a social worker is performing his/her evaluation, in order to not suggest an invalid conclusion.
Keep your child support current. If the supervised visitation is placing a financial strain on you ability to pay child support, have an attorney address modifying your child support in a Motion to Modify. It is counterproductive to request unsupervised visitation if you are not current in your financial responsibility toward your child.
Supervised Visitation in Texas – Part 1
Former spouses often use informal visitation arrangements as an opportunity to assault, harass, stalk, and emotional abuse their children and former partners. In addition, some parents will use their children as a means to hurt the other parent by denying access to the child(ren) even though such access has been ordered by the court, i.e. failing to be at home during scheduled visitation periods, failing to bring the child(ren) to a scheduled location for the other parent to exercise their court ordered visitation, faking illness, etc.
Supervised visitation takes place between the non-custodial parent and his or her child(ren) in the presence of a third party who observes the visit to ensure the child’s physical and emotional safety. Though sometimes reasonably and successfully ordered, visits voluntarily supervised by friends and family in their homes can be fraught with danger for the child and parent, as well as the monitor, especially in cases of domestic violence. Family members may trust the parent whose visits are being supervised and therefore may not take proper or sufficient measures to assure the child(ren) are watched or monitored at all times during the visit.
Consequently, when supervision is indicated, possession/visitation supervised by a neutral third party with the capacity to enforce effective safety measures is normally ordered and enforced by the courts. The expenses of such supervision are often excessive and may in themselves create a detriment to possession by a parent. Such agencies may also provide reports and recommendations to the court based on the success or failure of the supervised visits. Such recommendations assist the courts in making informed decisions regarding supervision and whether continued supervision in the best interest of the child(ren).
If supervised visitation is requested, some type of compelling reason and evidence, based on the circumstances surrounding the child(ren) must normally be established. Such evidence may include denial of access, drug addiction, mental or physical abuse, neglect, or severe mental illness of a parent. The following is a potential list of acts and/or circumstances that may be considered contrary to a child’s best interest.
• Violence or physical endangerment – A noncustodial parent may be denied visitation rights if the parent has abused the child or threatened physical violence.
• Emotional harm – Where sufficient proof is offered of potential emotional harm or that standard visitation has detrimentally affected a child’s welfare, supervised visitation may be ordered.
• Child’s wishes – A court may consider the child’s wishes as to visitation. The weight given to a child’s preference is dependent on the child’s age, emotional stability, maturity and motives.
• Abduction – There must be a showing that there is a strong imminent probability of abduction to limit visitation on this basis.
• Substance abuse – A parent who abuses drugs or alcohol may be ordered to supervised visitation restrictions if the conduct endangers the child or if the parent uses abusive language and/or mistreats the child.
• Mental illness –Mental incapacity may be a reason for supervised visitation only if it is determined by the court that there is a reasonable potential for harm to the child due to such mental illness.
• Sexual behavior – Courts rarely deny visitation solely on the basis of a non-marital heterosexual relationship. Courts will, however, cancel overnight visitation by a child with a parent because of the parent’s cohabitation on a showing of an adverse and material negative impact on the child.
• Incarceration – Visitations due to incarceration may be suspended only on a showing that such visits are detrimental to the child.
To have more of your questions answered on supervised visitation in Texas, or for answers to any other Texas child custody concerns you may have, call Dallas Divorce attorney Mark Nacol of the Nacol Law Firm P.C.
The Whistleblower – Part IV – Qui Tam Claims
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.
Texas Spousal Support – Post Divorce Maintenance
Under Section 8.051 of the Texas Family Code, a court shall order maintenance for either spouse only if:
1. the spouse for whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence under Title 4 and the offense occurred:
a. within two years before the date on which a suit for dissolution of marriage is filed; or
b. while the suit is pending; or
2. the duration of the marriage was 10 years or longer, the spouse seeking maintenance lacks sufficient property, including property distributed to the spouse under this code, to provide for the spouse’s minimum reasonable needs, as limited by Section 8.054, and the spouse seeking maintenance:
a. is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability;
b. is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home; or
c. clearly lacks earning ability in the labor market adequate to provide support for the spouse’s minimum reasonable needs, as limited by Section 8.054.
Section 8.052 of the Texas Family Code states that a court shall determine the nature, amount, duration, and manner of periodic spousal maintenance payments by considering all relevant factors, including the following:
1. the financial resources of the spouse seeking maintenance, including the community and separate property and liabilities apportioned to that spouse in the dissolution proceeding, and that spouse’s ability to meet the spouse’s needs independently;
2. the educational and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment, the availability of that education or training, and the feasibility of that education or training;
3. the duration of the marriage;
4. the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;
5. the ability of the spouse from whom maintenance is requested to meet that spouse’s personal needs and to provide periodic child support payments, if applicable, while meeting the personal needs of the spouse seeking maintenance;
6. acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;
7. the comparative financial resources of the spouse, including medical, retirement, insurance, or other benefits, and the separate property of each spouse;
8. the contribution by one spouse to the education, training, or increased earning power of the other spouse;
9. the property brought to the marriage by either spouse;
10. the contribution of a spouse as homemaker;
11. marital misconduct of the spouse seeking maintenance; and
12. the efforts of the spouse seeking maintenance to pursue available employment counseling as provided by Chapter 304, Labor Code.
Section 8.053 states that except as provided by Subsection (b), it is presumed that maintenance under Section 8.051(2) is not warranted unless the spouse seeking maintenance has exercised diligence in:
1. seeking suitable employment; or
2. developing the necessary skills to become self-supporting during a period of separation and during the time the suit for dissolution of the marriage is pending.
This section does not apply to a spouse who is not able to satisfy the presumption in Subsection (a) because the spouse:
1. has an incapacitating physical or mental disability;
2. is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home.
Except as provided in subsection (b), a court:
1. may not order maintenance that remains in effect for more than three years after the date of the order; and
2. shall limit the duration of a maintenance order to the shortest reasonable period that allows the spouse seeking maintenance to meet the spouse’s minimum reasonable needs by obtaining appropriate employment or developing an appropriate skill, unless the ability of the spouse to provide for the spouse’s minimum reasonable needs through employment is substantially or totally diminished because of:
a. physical or mental disability;
b. duties as the custodian of an infant or young child; or
c. another compelling impediment to gainful employment.
If a spouse seeking maintenance is unable to support himself or herself through appropriate employment because the spouse has an incapacitating physical or mental disability or because the spouse is the Custodian of a child of the marriage of any age who has a physical or mental disability, the court may order maintenance for as long as the disability continues.
A court may not order maintenance that requires an obligor to pay monthly more than the lesser of:
1. $2,500; or
2. 20 percent of the spouse’s average monthly gross income.
The court shall set the amount that an obligor is required to pay in a maintenance order to provide for the minimum reasonable needs of the oblige, considering employment or property received in the dissolution of the marriage or otherwise owned by the oblige that contributes to the minimum reasonable needs of the oblige.
Department of Veterans Affairs service-connected disability compensation, social security benefits and disability benefits, and workers’ compensation benefits are excluded from maintenance.
The Whistleblower – Pharmaceutical Fraud
In September of 2007, Bristol-Myers Squibb Company and its wholly owned subsidiary, Apothecon, Inc. agreed to pay over $515 million to resolve a broad array of civil allegations involving their drug marketing and pricing practices. In December 2007 the Corporate Crime Reporter reported Merick to pay $670 million to settle federal and state charges that it violated the False Claims Act by engaging in nominal pricing fraud. In 1986, more than $20 billion was paid out in fraud lawsuits brought by whistleblowers.
Pharmaceutical fraud cases represent the largest percentage of False Claims Act recoveries by the United, and qui tam relator whistleblower lawsuits. The False Claims Act Is a federal whistleblower law which has its roots in the civil war era and allows private citizens to file actions against federal contractors and corporations who conduct fraud against the government and the public. It is the United States’ most powerful tool for rooting out fraudulent government contracts. With the advent of the Medicare prescription plan, even more federal tax dollars will flow into the pockets of large ruling companies illegally and in violation of current law. In an industry with great power and profitability, there are lots of pressures upon companies to ignore federal laws designed to prevent fraud and curb costs.
Pharmaceutical fraud can take a variety of forms and involve complex issues. The following are some example:
- Charging the government for drugs not used and returned to pharmacy providers;
- Marketing, promoting, and selling drugs for use other than those approved by the FDA;
- Paying kickbacks and inducements to physicians, hospitals and pharmacists to prescribe or otherwise favor a drug;
- Engaging in off-label marketing; and
- Providing false data to the FDA or withholding negative data from FDA about the efficacy of a pharmaceutical drug or medical device in clinical research trials to get approval to sell and market the pharmaceutical drug or medical device.
Currently, the United States Government, along with the governments of 15 states and the District of Columbia, have joined with two whistleblowers who allege that drug manufacturer Wyeth defrauded U.S. taxpayers out of hundreds of millions of dollars. According to the Wall Street Journal, Wyeth is accused of overcharging Medicare and Medicaid programs nationwide for purchases of it’s acid-reflux drug Protonix. Under federal law, drug companies are required to offer prescriptions to federal aid programs at the lowest possible price. The Wyeth suit alleges that Wyeth was offering Protonix at a 90% discount to a private hospital, while charging the federal government much higher rates.
Other drug companies that have settled qui tam lawsuits include Pfizer, TAP Pharmaceuticals, Bayer, and Schering-Plough Corp. A federal official recently said the government has approximately 150 pharmaceutical fraud cases pending involving over 500 different drugs.
Pharmacy benefits management companies have also come under increasing scrutiny as a result of the False Claims Act. In one of the most prominent whistleblower cases reported, Phillips & Cohen represented two whistleblowers whose qui tam lawsuits resulted in a settlement of $875 million to settle the lawsuits and related criminal charges.
If you believe you have discovered fraud, you should try to assess the magnitude of the fraud and gather whatever documentary or electronic evidence is lawfully available. Be sure you do not violate the law or the terms of your employment agreement. Write down the details of any meetings or events where fraud was discussed, who was present and what documents may exist that memorialize the event. This documentation should be given to your attorney.
Keep in mind, you cannot recover in a qui tam action if another whistleblower has already filed an action based on the same documentation and information.
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization
