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.

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.

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.

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.

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