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).

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.

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.

Standard Possession Order for 2013

Since we started a new year, I thought the most useful thing to do was post a link to a standard visitation calendar for 2013.

Click OAG’s 2013 SPO Calendar

Of course, the above calendar won’t take into account all of the summer visitation or school holidays – you will have to spend some time doing that.  Here is a good website to help.

Last, click here for a more in-depth discussion of the Texas Standard Possession Order.

What is the Standard Possession Order in Texas?

A Standard Possession Order, or SPO, is the visitation schedule of a non-custodial parent described in Texas Family Code Title 5, Subchapter F (153.3101 – 153.317).  The actual statute can be found here.  There is a rebuttable presumption that this schedule is in the best interest of the child (Tex. Fam. Code 153.252).  However, there is arguably a different standard (or no standard) for a child under three, if you look at Texas Family Code 153.254.  That will have to be addressed in a different post.

One easy way to explain the SPO is that the non-custodial parent will have the first, third and fifth weekends of every month, plus some additional holiday time and possession in the summer and Thursdays from 6:00 PM to 8:00 PM.  Non-custodial parents should make sure to understand that when there is a fifth weekend of the month, they will have the following weekend as well, since the following weekend will be the first weekend of the next month.  This commonly causes confusion as many parents seem to believe they get “every other weekend.”  If you have an SPO, that is not true, and you may miss out on time with your child.  For ease of use, I found a calendar for 2012 as an example on the website of the Attorney General (AG Calendar) and another on an Austin Mediation website (AM website).

Keep in mind that the SPO addresses visitation for under 100 miles and over 100 miles.  Over 100 miles gives the non-custodial parents the option to pick a weekend per month instead of the 1/3/5 schedule as well as additional time in the summer and all spring breaks.

Also, sometimes you hear reference to an Expanded SPO.  Normally when that term is used, it refers to an SPO where the non-custodial parent has chosen to exercise the option under 153.317 to change pick-up or drop-off times to get more time with their child.  When pick-up times are changed, it is normally changed from 6:00 PM to the time school is released and drop-off is normally changed from 8:00 PM to the time school resumes the next day.  This allows the non-custodial parent take an additional over night (Thursday or Sunday) or have additional time between when school would be dismissed and 6:00 PM, the standard pick-up time.

If you have questions, feel free to ask.  This is a brief overview and does not address every situation, school holidays, or general terms and conditions, for example.  Hopefully this DOES make the SPO a little more clear!

Want to Change Child Support? Know the A, B, C’s…

Changing a child support payment (whether your’s or your ex’s) is certainly possible, just make sure that all the bases are covered.  Let’s look at the first group of steps needed, which can be found in Texas Family Code section 156.401(a).

  1. A “material and substantial change in circumstances” is needed.  Here, we need it to be a financial change (either earning power or monetary need).
  2. Those circumstances must relate to the child or a person affected by the order.
  3. The change in circumstance must have occurred after the signing of the order.

With the above set of facts, changing that child support payment becomes possible.  At the hearing, the above must be shown.  Simple testimony is not always enough.  The best way would be to show tax returns or pay stubs showing income at the time of the signing of the order, then current tax returns or pay stubs.

For an interesting case showing this process, look at In the Interest of C.H.C. by clicking the name of the case.

Enforcement of International Custody Orders

We are starting to get more and more questions regarding enforcement of custody orders from other states or even other nations.  Sometimes the person finds out after the fact that there was a court case and a corresponding final order without them ever being able to take part in the decision.

Fortunately for parents, Texas is one of many states that has enacted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).  A long name for something that simplifies this area of the law over all of the United States except Massachusetts – the only state to not have enacted it.  A great example of how the UCCJEA can serve to protect the absent parent is found in Razo v. Vargasi, a recent decision out of the Court of Appeals, First Circuit, Houston.  I attached a link to the case below.

In Razo, a couple were divorced and obtained a child custody order in Mexico.  The mother moved to the United States, which was allowed in the order.  The father was to have possession of the child during the summer and winter breaks while the mother had the child during the school year.  The order also had a penalty clause stating that if one of the parents breached the agreement, the non-breaching parent would get sole custody.  The father claims he went to pick the child up for his possession in December, but the mother and the child were not at the location they were suppose to be at, even though other family members were there.  The father went back to the Court in Mexico, served her by publication down in Mexico, and – surprise – she never heard about the case so he obtained a default judgment awarding him sole custody.  Meanwhile, the mother claims the father never came by and that family was at that address and would have let her know if he had.  The father then came back to Texas, properly registered the order, and had the trial court issued an order (writ of attachment) for the child to be returned to the father.  All of this information came from a bill of exception (special presentation of evidence to preserve it for appeal).

At this point, it sounds like the mother did not get any protection… but the UCCJEA allows for a hearing to contest the validity of an order from another state, whether it be Georgia or another nation like Mexico.  One requirement for that order to be valid requires that proper notice be given.  Tex. Fam. Code 152.305(d).  More specifically, that “notice required for the exercise of jurisdiction when a person is outside this state may be given in a manner prescribed by the law of this sate for service of process… in a manner reasonably calculated to give actual notice but may be made by publication if other means are not effective.”  Tex. Fam. Code 152.108(a).  The Court of Appeals essentially stated the father knew where the mother was suppose to be, there were family members there that could pass information to the mother, and that the father should have noticed the mother by serving her there or serving the paperwork on the family there.  With that reasonable option available, publication in Mexico, where the father knew the mother would not get notice, was not appropriate and the case was remanded for a hearing on the validity of the order.

I thought this case laid out the requirement of notice for an order to be valid under the UCCJEA, as well as how to attack notice, very well.  Another key take away here is that the Court of Appeals only remanded the case due to the attorney properly preserving the evidence through a bill of exceptions.  Overall, when faced with a situation like the mother, you need to be very well-prepared and make sure that you preserve the record and the evidence in case an appeal is needed.

http://www.1stcoa.courts.state.tx.us/opinions/Opinion.asp?OpinionID=89751

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