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!

Answers

Pro Se litigants, which simply means people representing themselves, need to take care and make sure to file an answer.  Without an answer on file after a party is served, the opposing party can enter a Default Judgment, getting everything that they want without notice to the pro se litigant.  Almost every family law case involves children or assets that make it worth to at least be a part of the process.  Filing that answer makes sure a litigant is noticed of hearing and gets to participate.

What constitutes an answer is given a lot of leeway.  “A defendant, who timely files a pro se answer by a signed letter that identifies the parties, the case, and the defendant’s current address, has sufficiently appeared by answer and deserves notice of any subsequent proceedings in the case.” Smith v. Lippmann, 826 S,W, 2d 137, 138 (Tex. 1992).

An example of just how much leeway this gives is evidenced by the appellate decision in Beard v. Uriostegui.  Here, the Father filed to modify custody of one of the children, giving himself the right to designate the residence of the oldest child.  Mother was served and sent in a letter to the Court, stating she was not going to contest the change, but wanted the Court to take into consideration certain financial matters, including the fact the Father had failed to support the children under the prior order.

The District Court granted a default judgment against Mother.  She appealed and the Appellate Court reversed the decision, stating that the letter, based upon Smith v. Lippmann, constituted an answer and that Mother wanted to present evidence on the child support issue.  This allowed her to challenge the child support findings and hopefully she will hire an attorney to address the past due child support.

Overall, use the free consultations many attorneys offer.  At least you will have a better idea of what is at stake, the process, and if filing an answer is worth it.

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.

What Effect Does Use of Pornography have in Child Custody Cases?

Very little to none.  This answer might surprise you, but at least one Texas case is directly on point.  That reasoning is that if the child does not see it and is not exposed to it, the child is not affected by it, and that argument supports even to what may amount to distasteful or deviant sexual practices by a parent.  For an interesting read and case on point, click on Wolfe v. Wolfe, below.

Wolfe v. Wolfe

If you think the actions of a spouse ARE affecting your children, please consult with your attorney and see if they can better bring this side of the case to light for the Judge.

Relocation in Texas (also known as Geographic Restrictions or lack thereof)

How does a Court determine if a geographic restriction for the child’s primary residence should be put in place, and if so, the area of that geographic restriction? 

OVERVIEW

In Texas, the Court’s power to determine geographic restrictions comes from Texas Family Code sections 153.134(b)(1)(A) and (B).  The first section allows the Court to establish a geographic area for the child’s primary residence while the second, (B), allows the Court to specify that the conservator with the right to determine the primary residence of the child has no geographic restrictions in making that decision.

The Court, in making this decision, then looks to the public policy of the State of Texas and the best interest of the child as laid out in Texas Family Code sections 153.001(a) and 153.002.

153.001: Public Policy

(a) The public policy of this state is to:

     (1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;

     (2) provide a safe, stable and nonviolent environment for the child; and

     (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

153.002: Best Interest of Child

The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.

SPECIFIC FACTORS

As you can see, there is not a lot of guidance.  Fortunately, two cases lay out the factors to consider.

For the best interest of the child, we look to Holley v. Adams, 544 S.W.2d 367 (Tex. 1976).  While an older case, it is still continuously cited and is still considered good case law.  In fact, when searched on LexisNexis on January 6, 2012, Holley was cited 963 times.

Those factors are:

  1. the desires of the child;
  2. the emotional and physical needs of the child now and in the future;
  3. the emotional and physical danger to the child now and in the future;
  4. the parental abilities of the individuals seeking custody;
  5. the programs available to assist these individuals to promote the best interest of the child;
  6. the plans for the child by these individuals or by the agency seeking custody;
  7. the stability of the home or proposed placement;
  8. the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a roper one; and
  9. any excuse for the acts or omissions of the parent.

This listing is by no means exhaustive, but does indicate a number of considerations which either have been or would appear to be pertinent.  Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).

For factors to consider in the relocation context, we look to Lenz v. Lenz, 79 S.W.3d 10 (Tex. 2002).  In Lenz, the Texas Supreme Court dealt with two German citizens and their children.  One parent wanted to move back to Germany.  The Texas Supreme Court stressed that old standards of relocation which place a burden on the parent choosing to move may not be feasible or appropriate in our society today, since there is “[i]ncreasing geographic mobility and the availability of easier, faster and cheaper communication.”  The Court then looked at other states to discuss factors now deemed more relevant in today’s society.   Those factors are:

  1. reasons for or against the move;
  2. comparison of health, education and liesure opportunities;
  3. whether special needs and talents of the children can be accommodated;
  4. the effect on extended family relationships;
  5. the effect on visitation and communication with the non-custodial parent to maintain a full and continuous relationship with the child; and
  6. whether the non-custodial parent has resources to relocate.

OTHER CONSIDERATIONS

Echols v. Olivarez:

Another case sometimes referenced is Echols v. Olivarez, 85 S.W.3d 475 (Tex. App.– Austin, 2002).  Echols takes some of the language of Lenz and expands on it so that the “context of the custodial parent’s happiness” should be a factor as well.  The idea is the custodial parent’s happiness can influence the child’s happiness.  Since the Texas Supreme Court in Lenz left the list of factors open, this seems a legitimate factor to consider in the relocation context, though the weight that should be assigned this factor is certainly not determinative of the relocation issue.  Later cases cite this factor and the current attitudes on this in the scientific community as evidenced by expert testimony at the trial court level.  However, that will need to be another post.

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

Child Support and Bankruptcy…

Unfortunately, many people ordered to pay child support have had to file for bankruptcy.  We see this occasionally, and while sometimes that person is attempting to avoid their child support obligation, many times the person truly is experiencing hard times.  Even more unfortunately, that person may believe bankruptcy will stay, halt or eliminate their child support obligation – that is simply not the case.  In fact, bankruptcy can make it easier for a person receiving child support to get paid.

To lay the argument out simply:

1) Child Support is seen as a domestic support obligation under the bankruptcy code – 11 U.S.C. 101(14A).

2) Domestic Support Obligations are not dischargeable through bankruptcy – 11 U.S.C. 523(a)(5).

3) In fact, the automatic stay associated with bankruptcy filings will not apply to collection of a domestic support obligation from property that is not part of the bankruptcy estate or with regard to a wage withholding order for future income- 11 U.S.C. 362(b)(2).

4) Finally, exempt property can be taken to satisfy domestic support obligations notwithstanding any State or Federal law to the contrary – 11 U.S.C. 522(c)(1).

What does this mean?

When a person (“debtor”) files for bankruptcy, they fill out certain schedules.  Those schedules include all of their property, their income and where that income comes from.  Because of (3) and (4), the person owed child support could look at those schedules, determine what the debtor is claiming is exempt, then file their Motion to Enforce Child Support.  Texas is allows for a debtor to claim quite a bit of property as exempt, but the debtor must list it in the schedule, which the person owed child support can then show the Judge and simply request that property or that income to satisfy the child support obligation.  While not a sure-fire way of getting that child support paid, looking through a debtor’s bankruptcy filing is a good start.

Parental Alienation Syndrome in Child Custody Cases

One concern many parents have is that the other parent is alienating their child from them, or that the child is suffering from Parental Alienation Syndrome (“PAS”).  Before going to far with this topic, understand that this is an extreme situation and does not apply to every case.  Many times a parent will vilify the other parent or a child will act out.  Those situations can still be acted upon and have an effect in a case without it being PAS.

If you know me, you know I try to always start with a definition –

Parental Alienation Syndrome:

The parental alienation syndrome (PAS) is a childhood disorder that arises almost exclusively in the context of child-custody disputes.  Its primary manifestation is the child’s campaign of denigration against a parent, a campaign that has no justification.  It results from the combination of a programming parent’s indoctrinations and the child’s own contributions to the vilification of the target parent.  

 See, The Parental Alienation Syndrome (Second Edition), by Dr. Richard A. Gardner, 1998, Creative Therapeutics, Inc., at xx.

This means PAS consists of two parts, (1) the child bad-mouthing the target parent without justification and (2) the alienating parent trying to program the child that the target parent is bad without justification.

Symptoms of PAS:

In addition to the above, PAS is defined by a number of symptoms evidenced by the child.  Those symptoms are:

  1. A campaign of denigration
  2. Weak, absurd, or frivolous rationalizations for the deprecation
  3. Lack of ambivalence
  4. The “independent-thinker” phenomenon
  5. Reflexive support of the alienating parent in the parental conflict
  6. Absence of guilt over cruelty to and/or exploitation of the alienated parent
  7. The presence of borrowed scenarios
  8. Spread of the animosity to the friends and/or extended family of the alienated parent

 See, The Parental Alienation Syndrome (Second Edition), by Dr. Richard A. Gardner, 1998, Creative Therapeutics, Inc., at xxv.

A couple of those symptoms are explained more fully below:

The first symptom, a campaign on denigration, is simply the child continuously discussing their hatred of the target parent or the imagined faults of the target parent, with weak or absurd reasons (second symptom) and lack of guild (sixth symptom).

Lack of ambivalence is the idea that one parent is all good while the other parent is all bad.

Independent thinker phenomenon is when the child refers to the alienating parent’s expressions or ideas as their own.  An example would be repeated what a parent said about the other, “Daddy doesn’t care about us,” and claiming it as their own.

Presence of borrowed scenarios is when a child incorporates speeches of a parent as reasons for hating a parent.  Typically this are obvious as the statements would never come from a child’s mouth, either because they do not understand the words or would not understand the context/situation.

Problems with PAS:

First, PAS is commonly seen as ‘junk science.’  This diagnosis is still in the early stages of development and it has yet to be seen if PAS will become accepted by the scientific community.  What this means in the legal world is that attorneys are going to have a difficult time getting testimony and opinion about PAS specifically into  evidence.  I say specifically because while courts will address the actions of parents and the situations described as symptoms above, the court may not want to put it in the context of PAS.

Second, many times there is some justification, no matter how limited, for a child’s behavior.  The child may not want to go to a parent’s house because there was a bad experience in the past, or they will have to miss out on an activity they would otherwise enjoy.

Third, a parent may claim PAS only to flip the focus of the case from them to the other parent.  Courts are aware of this behavior, view PAS with scrutiny and often will re-focus on the parent alleging PAS if the court believes the claim unfounded.

Conclusion:

Alleging PAS, while certainly an option, should only be done with extreme caution.  All of the underlying actions a parent takes that make up the allegation can be addressed without alleging PAS.  Many courts view PAS with skepticism and the alleging party may lose some credibility before even stepping into the courtroom.  With that in mind, and the relative newness of this diagnosis, parties should be cautious in trying to assert it in a child custody matter.  Keep in mind that there are many roads to the same destination or goal, and some are better than others.

Challenging Child Support by Challenging Paternity

When parents divorce, it is only proper that the parents still support their children.  In the case of women, there are very few circumstances where there is a question as to whether she is the biological Mother.  However, men don’t have it that easy, and some men accept children, and the obligation to support them, only to find out later that the child is not their offspring.

How to challenge a child support order when the child is not yours?

Thanks to a new law, men can challenge their child support order by challenging the biological relationship with the child (think DNA testing).  There are some restrictions.

For all orders prior September 1, 2011, the man must have believed at the time of the order or signing of the acknowledgment of paternity that he was the father due to misrepresentations made to him.  If the order was prior September 1, 2011, he has until September 1, 2012, to challenge the order in a court of law.

For orders after September 1, 2011, the man must have believed at the time of the order that his was the father due to misrepresentations made to him and must file to terminate the relationship within one year of finding facts that indicate he is not the biological father.

Under either route, timing is important.  If you wait too long to challenge the order, you waive the objection.