International Parental Kidnapping – Yes, it’s real.

International parental kidnapping does exist, and does happen.  In fact, major news networks reported in September 2014 that a Beijing-bound United Airlines flight had to return to Dulles International Airport after law enforcement was made aware that a mother was illegally taking her child out of the country.  Fortunately, the father had a decree with language preventing the child from being removed from the United States without his approval and got wind of the travel before it was too late.

With today’s more mobile workforce and population, it is more important than ever to make sure you address these concerns with specific language in any decree or order regarding children.  Without having a court-order to rely on, a parent does not have as strong a basis to prevent these international parental kidnappings.  And once out of the country, it is very hard to force any return.  There are international laws to refer to and attempt to rely upon, but both countries must be signatories, and even then, the process is expensive, long, and the result uncertain.  You are better served by making sure language is in the decree or order preventing international travel without consent, and then making sure the proper law enforcement agencies have flagged the child’s passport in case the other parent attempts to flee.

Can False Abuse Allegations Affect Custody?

You bet.  There are plenty of cases where one parent decides to allege that the other abuses their children, whether it is verbal, emotional, physical, or even sexual.  Many times these allegations are untrue, unfounded, and designed to simply force a party to give in.  Of course, if you believe something IS going on, you need to protect your child by conferring with the proper authorities.  But this blog is really about those situations where there is no basis – a parent is just trying to get their way.

In those instances, we sometimes see that even after professionals are brought in and determine that no abuse occurred, the accusing parent will continue to make the allegations, and report to other experts, trying to find someone, anyone, to agree with them.  Eventually the Court can tire of these games, and in some cases, we see that the Court will give custody to the parent being falsely accused, based on the idea that these continued allegations destroy the parent-child relationship, or at least poison it, and that the child’s best interest would be served by living with the non-accusing parent.  For a case on point, check out In the Interest of A.D., No. 14-12-00914-CV, or click In the Interest of A.D. 2014-14-12-00914-cv (false allegations of abuse).

What Constitutes Telephone Harassment?

We often get told that someone is being harassed by telephone, but what does that really mean?

There is a great case, Perone v. Texas, which talks all about it in a criminal case context.  An ex-husband was convicted of harassment via telephone and then challenged the conviction based on, among other things, most of the communications were text messages and face time, not the traditional telephone calls.

Main points to see:

  1. The person commits the misdemeanor offense of harassment if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, (1) he causes the telephone of another to ring repeatedly or makes repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another; or (2) he sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another. (Texas Penal Code 42.07(a).
  2. Text messages fit this definition;
  3. FaceTime fits this definition;
  4. While some messages did relate to parenting logistics, others referred to the ex-husband’s dating and sexual activity and/or criticize his ex-wife;
  5. Intent can be determined by a jury (or Judge in the family law context as the trier of fact);
  6. Intent can be inferred by looking at the acts, words, or conduct of the accused, including the circumstances surrounding the acts;
  7. At least four phone calls in a little over a month were sufficient in a case that the calls were ‘repeated.’ (Blount v. State, 961 S.W.2d 282, 284 (Tex.App.-Houston[1st Dist.] 1997, pet. ref’d).

How does this relate to you?

Be ready to show that the intent fits the required intent (to harass, annoy, alarm, abuse, torment, or embarrass another), and how that actually occurred.  Be ready to show that the calls were repeated.  And be ready to show how it affected you!

 

I Just Moved to Texas, Where Do I File My Child Custody SUit?

You probably must file in the state you just moved from.  Suits involving a child custody determination, or possession, visitation and access, fall under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).  Almost all states have made it law, and in Texas, the UCCJEA is embodied in Chapter 152 of the Texas Family Code.

For initial child custody determinations, there are four options:

  1. The state is the home state of the child, meaning the child lived in the state for six months preceding the case, or the state WAS the home state of the child within six months before the case is filed and a parent or person acting as a parent still lives in the state.  Tex. Fam. Code 152.201(a)(1).
  2. No other state is the home state of the child or a court in the home state has declined to exercise jurisdiction (power) because another state is a more appropriate place because it is a) more convenient or b) a parent acted in bad faith or unjustifiably to make a certain state the home state of the child.  The child and at least one parent or person acting as a parent must have a substantial connection to the state in which the case will be filed or substantial evidence is available in that state.  Tex. Fam. Code 152.201(a)(2).
  3. All states that could exercise jurisdiction on the two grounds above have declined to do so because another state is the better forum because it is more convenient or because of bad conduct of a parent.  Tex. Fam. Code 152.201(a)(3).
  4. No court in another state would have jurisdiction under any of the three above grounds. Tex. Fam. Code 152.201(a)(4).

There is a basis for a court in Texas to make emergency orders, governed by Tex. Fam. Code 152.204, but speak with an attorney if it is going to come to that.  These interstate cases are not easy, and a lot of time and money can be wasted if you accidentally file in the wrong state.

Who Claims the Children as Dependents for Tax Purposes?

About this time of year, separated parents sometimes ask us who can claim the children on their taxes.  Many parents simply agree that the parent that would get the most benefit can claim the children.  Other parents have provisions in their orders directing the parties to claim or not to claim the children on their taxes.  But what about when there is no agreement?

The position the IRS takes is that the person having the children more than half the year can claim the children.  IRS Publication 504.

This means that the custodial parent, or the parent the children live with primarily, can claim the exemption.

So what happens if your orders say that one parent gets to claim the children and the other parent files first, claiming the children?  Realistically, the parent that should have been able to claim the children is going to have a hard time.  They will need to work with the IRS, the other party, and possibly an attorney well-versed in tax law to correct the issue.  The parent could also file an enforcement action or sue for the lost benefit.  The easiest way to avoid the issue?  Speak with the other parent, or make sure you file first.

What is a social study?

When parents can’t agree on who the kids will live with the Court will normally order a social study be conducted. This allows for a non-party, a trained professional, to look at the situation, the concerns of each party, and make a recommendation to the Court.  That recommendation is the social study.

This expert will interview each party as well as watch the interactions between the parties and the kids. They will normally also interview other children or adults that are living in the residences of the parties (should there be any) and do a home visit of each parties home to make sure it is appropriate / safe for the children.

Once the expert is done, they draft the social study. In some jurisdictions, only the attorneys and the judge will see the result.  This is because there have been times when parties have not liked the results of the social study and either share them with the children or even take out their frustrations on the children.

If you are going through a social study, be honest, participate fully, and make sure you comply fully with any requests. Talk with your attorney if you have questions.

A quick overview of the process in Dallas County can be found here.

New Alcohol Testing Tool – Soberlink

First, I found out about this from another attorney, not the manufacturer, so this is no advertisement.  Nor is it meant to be – I have no experience with this, I just looked it up and Soberlink seems like a useful tool.

Check it out for yourself, the website is http://www.soberlink.net/

You can have random alcohol testing, or scheduled.  There will be a monthly fee, and a deposit for the equipment, which may keep this out of the hands of everyone, but I think the other upsides are great:

- takes note of location through GPS technology

- take a photo of the person giving the breath test

- sends this to email accounts of attorney’s and/or the parties

- pocket-sized

For those concerned about alcohol abuse, or accused of addiction, this is a useful remedy.

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