Penny wise…

Many people try to take the ‘cheap’ option in life, looking at the immediate effects, and fail to recognize the expensive long-term costs those decisions have.

This happens in litigation all the time, especially with trying to determine someone’s income for child support purposes. The party that would receive child support does not want to spend the money to confirm the paying party’s income using any number of tools (motions to compel, depositions, subpoenas to the employer of that person), and so run the risk of not being able to prove that big salary to the Court. Then the cost-conscious litigant gets child support based on the presumption of minimum-wage, forty-hour a week salary, because they cannot prove up any other income.

Take for example the case of Reagins v. Walker, 14-15-00764-CV (Tex.App. Dist. 03/07/2017). Here, Mother has the children and is asking for an increase in child support. Father does not want to participate, refuses to turn over financial income voluntarily, and actually does not appear at final trial. We do not know if he refused to comply with discovery requests, but that is likely. He is allegedly a petroleum engineer (his LinkedIn states ‘Field Service Engineer at GE Oil and Gas’). Seems easy – Father is not showing up, just have Mother testify, right? Not quite. Sure, at the trial court level she won, but then Father appealed.

The Court of Appeals stated her testimony, as provided, was ‘mere speculation’ and not ‘evidence.’ Scouting around on the internet and seeing what a professional with his qualifications made did not cut it. The case was sent back to the trial court to try the issue again.

Talk about being “penny wise and pound foolish.” Now Mother has incurred the cost of a trial once, the cost of an appeal, and then will have to negotiate or go to trial a second time. Being cheap up front did not work.

My Child Custody Case has to be transferred – again?!

Many parents run into the situation where there may be a pending child custody matter and the parent with possession decides to move, yet again. But now it’s to a new county. Do you have to move the case, chasing the child, all across Texas? No.

Take the case of In Re CG (jurisdiction to do anything in Mod)., (Number 13-14-00544-CV, 13th District Court of Appeals). The original order (a final decree of divorce) regarding the child was out of Sherman County. Mother had primary of the child, and when Father wanted to modify the orders less than a year later, both Mother and child lived in Moore County. Now, since the final order was out of Sherman County, the Court in that county had continuing, exclusive jurisdiction – Father had to file the modification there. But since the child had not been there for over six months, at the same time he filed the modification, he filed a motion to transfer to Moore County. Good job. Transfer accepted and done.

Then, in 2012, Mother and child moved again to Randall County. Action is still pending in Moore County, no one has lived there for over six months. Father files to transfer… and here’s the hiccup. Moore County transferred the case to Nueces County. Legally, a motion to transfer must be filed at the time of the initial pleadings (2011 when the case was transferred in). Otherwise, the Court cannot transfer the case (at least in the 13th, 1st, 14th, and 8th Districts). Only in the 3rd District (which includes Travis County – Austin) could this work.

Well, the Court transfers the case, and everything that happens in Nueces County ends up getting set aside. All the time, money, and outcomes — for nothing. Since the transfer was not proper, no court order out of Nueces County is proper, except for the order dismissing the case. Everything had to be redone in Moore County.

So not only does the case point out a (small) split in the appellate courts, but that, if you are debating a transfer, you need to do it up front with the initial pleadings.

Now – SHOULD you move the case? That depends on a range of factors, and the facts in your particular case. At this point, you should really consult an attorney to review your options.

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).

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.

%d bloggers like this: