Dallas Divorce Lawyer Blog

Post-Final Order Remedy: Enforcement of Child Support Order

March 26, 2012 | by Guest and Gray Law Firm

You’ve been through a divorce or a suit affecting the parent-child relationship, and the other party was ordered to pay child support by the Court, the terms of which were all located within the Court’s final orders. With all orders of child support, the orders state how much the obligor (responsible parent) is supposed to pay, how often they have to pay, and to whom they make the payment (in most if not all cases, the state disbursement unit). However, it’s been several months, or even years, and the other party has failed to comply with the child support order. You need financial help in raising your child; but you’ve reminded the other parent time and time again about this, and they still refuse to help you. So, you contact your attorney at Guest & Gray, P.C. who informs you that there is a solution–motion for enforcement.

Within this motion for enforcement, you will plead the dates that the child support payments were due, the amount that was due, and the amount that was paid. So, for instance, if the obligor was ordered to pay $200.00 on the first day of each month, and they just didn’t make a payment at all, then the amount paid would be $0.00. And, if they did make a payment of some amount, you can list that. But, the reality is that they were ordered to pay a certain amount, and that amount needed to be paid in full.

Because the obligor has failed to make their child support payments, then they are now in what is called arrearages for child support. This means that they have an outstanding balance. In pleading for an enforcement of the child support order, you will plead the total amount that the obligor is currently in arrearages. You will ask that the Court confirm this amount when you have your hearing and order that the obligor be responsible for that full amount.

Post-Divorce: Enforcement of Property Division

March 26, 2012 | by Guest and Gray Law Firm

You are divorced and in the final decree, your ex-spouse was ordered to take care of a particular piece of property. It could be that they were ordered to take a piece of property and pay for it, pay a debt, ordered to hand over a piece of property to you upon divorce, etc. However, your ex-spouse has failed to comply with these orders and you are fed up with asking them to do so time and time again without any result. So, you contact your attorney at Guest & Gray, P.C. in Kaufman County who informs you that a motion for enforcement can be filed on your behalf. In a nutshell, and quite simply, this is asking the Court to force the other party to do what they were originally ordered to do, because they never did it.

When dealing with an enforcement issue, the primary concern would be looking at the final orders and what particular provision you are seeking to enforce. This is crucial because the order language must be specific in order to be enforceable. If not, then you (within the final orders) are given the option of requesting a clarification from the Court via a motion to clarify. Basically, you would be telling the Court, I know you ordered my ex-spouse to do something, but we are unsure as to what the specifics were in that order or what the Court had in mind with that order. This request for a clarification can be joined with your motion for enforcement.

Also, the language within the final orders is important because when preparing your motion for enforcement, you have to identify the violated provision. That is, Texas Family Code Section 157.002(a)(1) states that the motion to enforce must “identify the provision of the order allegedly violated and sought to be enforced.” Therefore, a motion for enforcement serves as a tool to point out to the judge his/her orders in the final decree, the allegations that the party ordered to act has failed to do so, and then requests a remedy on your behalf due to the responsible party’s failure to comply.

Child Protective Services and Allegations of Abuse or Neglect Within Your Home: What to Expect

March 26, 2012 | by Guest and Gray Law Firm

Imagine this scenario: you are at work or at home waiting on your child to get home from school, and someone contacts you and identifies themselves as a CPS social worker and they want to speak with you regarding your child and some recent allegations. You are confused and concerned. Unfortunately, many parents face this every day.

In fact, Child Protective Services (CPS) has two different avenues of becoming involved when there are allegations of child abuse (typically classified as sexual, emotional, or physical), neglect (defined as lack of supervision, lack of medical or emotional care, etc), or if CPS suspects that there is alcohol or drug abuse occurring within your home. The two different avenues of involvement are as follows:

EITHER:

How the Courts are Affecting the Parent-Child Relationship: Recent Opinions on the Safest Choice Between Denying vs. Limiting a Parent’s Access to the Child

March 23, 2012 | by Guest and Gray Law Firm

If you are a parent involved in a divorce with your children or in a suit affecting the parent-child relationship, you have to be careful in terms of deciding what conservatorship you ask for, or even agree to. In particular, let’s say that the other parent has a lot of personal issues and you would prefer that they not be in your child’s life because it would not in the child’s best interests. You contact your attorney at Guest & Gray, P.C. in Kaufman County who informs you that there are two choices–either request that the Court deny the parent access to the child; or, request that the parent’s access be limited. You want the other parent to be completely denied possession. However, your attorney advises that this may not be the best choice.

This is because of a recent opinion in Fish v. Lebrie, where the Austin Court of Appeals established that when a parent’s access to the child is completely denied, that is essentially the same as terminating parental rights. Therefore, if a parent’s access is going to be denied, then it must rise to what the Court termed as “extreme circumstances” that would justify keeping the parent from the child. However, the court left it unclear as to what this would mean; but yet also suggested that a parent’s access could be drastically limited and not terminated, and that would be okay.

The court might have been unwilling to draw a bright line rule in that particular case because the mother presented evidence that the father emotionally and physically abused the child. But, the father had the child’s psychologist testify that this wasn’t true.

How the Courts are Affecting the Parent-Child Relationship: Recent Opinions on Possession and Access to Child

March 21, 2012 | by Guest and Gray Law Firm

You’re in the midst of a divorce or suit affecting the parent-child relationship and you’re discussing the rights and duties that each parent will have with respect to the child or children. In particular, you are discussing additional ways to have “visitation” with your child outside of the standard possession periods that you will have. For instance, what about “electronic” communication when the child is in the other parent’s care? So, you contact your attorney at Guest & Gray, P.C. to inquire about this additional right to your child.

In some instances when one parent won’t see the child as often or if the parents reside more than 100 miles apart, courts can include electronic communication provisions when it is appropriate. This means that you can email or, with the advancements of technology, Skype with your children now when they are with the primary parent.

However, the 14th District Houston Court of Appeals recently held that orders that allow you to do so must be specific in order to be enforceable. In fact, that Court held that if there is an electronic communication provision within the final orders, it must comply with Texas Family Code §153.015(c) which lists out 3 requirements for the named conservators.

How the Courts are Affecting the Parent-Child Relationship: Recent Opinion on Modifying Custody in Orders Less than Year Old

March 19, 2012 | by Guest and Gray Law Firm

It has been a few months since you’ve finalized your divorce or suit affecting the parent-child relationship and you either realize that you’re not happy with what was ordered, or the other parent hasn’t been complying with the orders. In particular, let’s say you do not like the conservatorship ordered, and it has been less than a year.

You contact your attorney at Guest & Gray who informs you that we can file a petition to modify. However, there is a specific requirement with these types of pleadings. Your attorney must attach an affidavit on your behalf which is signed and notarized and this affidavit must set out the facts and establish that either (1) the present environment endangers the child’s physical health or impairs the child’s emotional development or (2) the primary conservator agrees to the modification and the modification is in the best interests of the child.

The key is that the affidavit must be sworn to (signed by affiant) and notarized. If it’s not, it’s fatally flawed and the petition can be thrown out. However, the the other side must catch this flaw. This is based on the recent opinion in Serafn v. Seal by the Austin Court of Appeals wherein the Court set a deadline for when this affidavit is considered fatally flawed–designating when an issue with the affidavit must be brought to the court’s attention. The Court held that you must object in the very beginning if you notice an issue with the affidavit. If you don’t, and you wait until appeal of the case, according to the Austin Court of Appeals, you will have waived your complaint of the defective affidavit. So, two lessons here–first make sure that your affidavit is in compliance with the rules. And two, if you’re the Respondent in the matter, be timely in your objections.

How the Courts are Affecting the Parent-Child Relationship: Recent Opinions on A Parent’s Right to Jury Trial

March 16, 2012 | by Guest and Gray Law Firm

You are in the midst of a contested custody proceeding, whether it is with your present spouse or another relative to the child. You are concerned with allowing the judge to decide who your child should live with. You don’t think it would be the best for your child. So, you contact your attorney at Guest & Gray in Kaufman County who informs you of your options. If you don’t want the Court to decide, there’s always the option of a jury of your peers.

A parent is entitled to a jury trial on this issue of conservatorship and the jury’s verdict can’t be changed by the court. And, the 1st District Houston Court of Appeals in In Re Kathleen Elizabeth Reiter held that when a parent requests a jury trial, a court must grant the jury trial and this can’t be bypassed by the other party. Therefore, if you request a jury trial but aren’t granted one, your attorney will gladly bring this case to the court’s attention.

Additionally, the Austin Court of Appeals supported this right to jury trial in Winters v. Winters. There, the Court held that even where a parent had committed an act of family violence against the other parent, while this may mean that you can argue that the parent can’t be appointed joint managing conservator, that doesn’t mean that if they request a jury trial, they’re not entitled to one. Therefore, just because a parent committed an act of family violence, that doesn’t prevent them from seeking a jury trial on the issue of conservatorship.

How the Courts are Affecting the Parent-Child Relationship: Recent Opinions on Another Form of NonParent Standing Known as “Party Affected”

March 16, 2012 | by Guest and Gray Law Firm

You are unhappy with how custody and possession turned out for a child in your life, and you’re not the parent. But, you want to do something about it because you were part of the original proceeding, and you feel as though the circumstances (facts and evidence) have substantially changed since the judge rendered his/her opinion. And, you feel as though if the judge was updated on the new facts, then that decision could be changed. Maybe the child’s conservators haven’t been complying with the judge’s orders or they’ve started doing things that you believe are harmful to the child such as using controlled substances. However, you are concerned about how to even go about getting this process started. So, you contact your attorney at Guest & Gray in Kaufman County.

Your attorney advises that a nonparent can file a petition to modify the parent-child relationship if that nonparent was a party affected by the previous order that they are seeking to modify. In fact, the 14th District Houston Court of Appeals in In the Interest of S.A.M., P.R.M., and S.A.M., Minor Children produced a clear ruling for this type of standing and it broke it down into two analyses–what is a party and what does it mean to be affected.

The court held that a party, quite simply, is a nonparent who was actually a party to the prior original suit. That is, if the nonparent was an intervenor and the court never struck this designation. Or, if a nonparent filed the original proceeding or was a respondent.

How the Courts are Affecting the Parent-Child Relationship: Recent Opinions on a Nonparent’s Standing in Modification Suits

March 15, 2012 | by Guest and Gray Law Firm

A motion to modify the parent-child relationship has been filed. You, even though you are not a parent of the child, would like to participate in this hearing and ask that the judge allow you either custody of the child or at least some visitation with the child. You contact your attorney at Guest & Gray, P.C. and discuss the issues with them.

In order to intervene and become a part of the court proceedings, you must establish standing. There are different ways to do so. A recent appellate opinion discussed the actual care, control and possession form of standing.

That is, a nonparent seeking to intervene in an already pending modification suit, as part of the standing requirements, must establish that they had actual care, control and possession of the child for at least 6 months and that couldn’t have ended more than 90 days before the petition to modify was filed. The question becomes what constitutes actual care, control and possession. In particular, what does “actual” mean for these types of court proceedings. While it may seem simple, this concept is quite convoluted.

How the Courts are Affecting the Parent-Child Relationship: Recent Opinions on Third Party Standing

March 15, 2012 | by Guest and Gray Law Firm

You are an aunt, uncle, grandparent, stepparent, or someone with a third party relationship to a child. And, you are interested in seeking custody of the child because you have established a strong and lasting bond with this child. However, in seeking such, you realize that you do not have an easy road ahead of you. That is when you contact your attorney at Guest & Gray in Kaufman County.

Your attorney advises you that in an original proceeding to establish the parent-child relationship, there is a parental presumption when it comes to conservatorship–parents should be appointed as conservators unless there’s reason to the contrary. However, the 14th District Houston Court of Appeals in In the Interest of R.T.K. made the distinction that in modification proceedings, this parental presumption doesn’t exist. Thus, in modification suits, conservatorship is ultimately determined upon the best interests of the child.

Despite this, in both original and modification proceedings, if you can produce evidence that appointment of a parent as conservator would significantly impair the child’s physical health or emotional development, then that would be sufficient to appoint a non-parent as conservator.