This year’s July has 5 Fridays 5 Saturdays and 5 Sundays. This apparently happens once every 823 years. If you are a non-custodial parent and are trying to maximize the time you have with your child(ren) then you will want to designate the month of June (as opposed to the default month of July) because you pick up an extra weekend in July. Remember, notices to the custodial parent are almost always due by April 1st of each year so get your notices out. You have seven days left! Conversely the custodial parent has until April 15th of each year to designate their summer possession.
Blog
03.11.11
Notable Results Update
February 25, 2011: Mr. Granata sucessfully negotiated over $100,000.00 in retirement funds being awarded to his client which represented approximately 90% of the community property.
March 3rd, 2011: Mr. Granata successfully obtained a Temporary Restraining Order after it was found the other parent had injured the child by appearantly biting the child on the arm. Based on the Judge’s comments upon reviewing the application as drafted by Mr. Granata, opposing counsel agreed to a temporary permanent injunction.
March 4th, 2011: Mr. Granata successfully negotiated a shared and split custody arrangement for his client, who is the father of the children. Client also gets to determine the school district the children go to.
March 11, 2011: (Non-Family Law) Mr. Granata successfully obtained over a 50% rent abatement for a client who was experiencing unclean water due to a langlords failure to properly maintain plumbing and heating in the house.
02.17.11
H.B. No. 1262 Posession Guidelines for Children Under 3 Years of Age
Interesting House Bill that sets guidelines for Courts to use when setting non-custodial parents possession and parenting time for children under three years of age. The bill stops short of implementing and recommending an actual schedule but does utilize guidelines for a Court to look to for setting visitation. It seems to reward parents who step up and become active in a young child’s life as opposed to parents who have shown little or no interest in the care giving of their kids. Personally I am not sure how you quantify Section (a)(2) “the effect on the child that may result from separation from either party” If the child is less than six months old, nonverbal, and both parents have been active in providing care then it would seem impossible to determine what effect seperation would have from either parent beyond established scientific reasearch which would be applicable to all children in general.
Edit: I called around and located one of the drafting lawyer’s of this bill (who happens to also be a close friend of mine and whom I didn’t even know was working on this) and he shared with me they went through multiple iterations of this bill prior to it even going to committee. Appearantly there was an actual schedule on the table being proposed for this bill for children at different ages (1-6 months old, 7-12 months old, 13 -24 months, ect…) but it was ultimately overulled by various interest groups. It’s sort of a shame since it seems like you have to litigate all possession schedules for children younger than three because there is no presumptive schedule. It’s a legal free-for-all. Custody litigation almost always polarizes the parents against each other and makes it difficult for parents of young children to start out on a nonadversarial footing from the very beginning of trying to jointly raise a child. I think this is a disservice to Texas parents.
By:AAThompson
H.B. No. 1262
A BILL TO BE ENTITLED
AN ACT relating to a court order for the possession of or access to a child under three years of age.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONA1.AASection 153.254, Family Code, is amended to read
as follows: A CHILD LESS THAN THREE YEARS OF AGE.
(a) The court shall render an order appropriate under the circumstances for possession of a child less than three years of age. In rendering the order, the court shall consider evidence of all relevant factors, including:
(1) the caregiving provided to the child before and during the current suit;
(2) the effect on the child that may result from separation from either party;
(3) the availability of the parties as caregivers and the willingness of the parties to personally care for the child;
(4) the physical, medical, behavioral, and developmental needs of the child;
(5) the physical, medical, emotional, economic, and social conditions of the parties;
(6) the impact and influence of individuals, other than the parties, who will be present during periods of possession;
(7) the presence of siblings during periods of possession;
(8) the child’s need to develop healthy attachments to both parents;
(9) the child’s need for continuity of routine;
(10) the location and proximity of the residences of the parties;
(11) the need for a temporary possession schedule that incrementally shifts to the schedule provided in the prospective order under Subsection (d) based on:
(A) the age of the child; or
(B) minimal or inconsistent contact with the child by a party;
(12) the ability of the parties to share in the responsibilities, rights, and duties of parenting; and
(13) any other evidence of the best interest of the child.
(b) Notwithstanding the Texas Rules of Civil Procedure, in rendering an order under Subsection (a), the court shall make findings in support of the order if:
(1) a party files a written request with the court not later than the 10th day after the date of the hearing; or
(2) a party makes an oral request in court during the hearing on the order.
(c) The court shall make and enter the findings required by Subsection (b) not later than the 15th day after the date the party makes the request.
(d) The court shall render a prospective order to take effect on the child’s third birthday, which presumptively will be the standard possession order.
SECTION 2. The enactment of this Act does not constitute a material and substantial change of circumstances sufficient to warrant modification of a court order or portion of a decree that provides for the possession of or access to a child rendered before the effective date of this Act.
SECTIONA 3. The change in law made by this Act applies to a suit affecting the parent-child relationship that is pending in a trial court on the effective date of this Act or that is filed on or after the effective date of this Act.
SECTION 4. This Act takes effect September 1, 2011.
H.B.ANo.A1262
10.28.10
Texas Ranger’s Playoff Run Creates Uncertain Legal Future
Some legal levity. This author particularly likes footnotes 3 and 7 and it’s tempting to file an Amicus Brief on behalf of the Defendant’s denying the Motion given Lee’s performance last night.
03.12.10
Yet another Texas Family Code 102.003(a)(9) case….
I can’t get enough of these standing cases. In re M.K.S.-V., 301 S.W.3d 460, Tex.App.-Dallas, 2009. Facts as reported from the case:
K.V. and T.S. met in the fall of 1997 and began living together in late 1998. The two talked about rearing a child together and in mid-2003, after the two had received counseling, T.S. became pregnant with M.K.S. through artificial insemination by a sperm donor. T.S. delivered M.K.S. on May 21, 2004 and co-parented M.K.S. with K.V. until August 3, 2005 when the relationship ended and T.S. moved out with M.K.S. Because T.S. and K.V. wanted to maintain some continuity for the child, they agreed on a schedule allowing K.V. regular access to and possession of the child. Under the agreement, M.K.S. would visit K.V. overnight once a week, alternate Sunday afternoons, and on alternate weekends beginning on Friday afternoons during the school year. During the summer, the weekend visits would sometimes start on Thursday afternoon. M.K.S. also visited K.V. on “some holidays.” This schedule began August 5, 2005 and continued until April 25, 2007 when T.S. discontinued the visits because K.V. had accessed M.K.S.’s school record against T.S.’s “directive.” The following month, K.V. filed suit seeking to be appointed joint managing conservator of M.K.S. or, in the alternative, to adopt her.
I recall this case getting some media attention because the parties were lesbian lovers. Interesting to note the Court did not mention this fact in the entire case. Unlike most cases the parties here had an actual written possession schedule they generally seemed to follow yet TS maintained that KV had no standing. The appeals court found that in this case, the possession agreement between the parties shared characteristics of a standard possession order, MKS had her own room at KV’s house, KV had toys for MKS, KV would pick the child up from school when she was sick, KV was listed as a parent at the school for pick up purposes, and similar parental duties, actions and obligations that are indicative of being a parent. The found that the record did not suggest the possession and care giving was intended to be a temporary arrangement. For these reasons the appeals court remanded the case and found error when the trial court dismissed KV’s claims. Remanded.
03.06.10
San Antonio Court of Appeals breaks from tradition on 102.003(a)(9) Standing
For some reason I find these standing cases super interesting. The analysis almost always focuses on ‘what exactly makes you a parent’ is fascinating to me.
In re Y.B. 300 S.W.3d 1
Here are the facts as reported from the case: Swift and Tina Bruno have known each other for over ten years. In December of 2004, Bruno traveled to the Ukraine to adopt three girls. Bruno is the girls’ only legal parent. On April 22, 2007, Swift and Bruno married. On January 21, 2008, Swift moved out of Bruno’s house. He filed a suit affecting the parent-child relationship (“SAPCR”) on March 10, 2008. A week later, Bruno filed a plea to the jurisdiction and motion to dismiss, challenging Swift’s standing to bring a SAPCR. Conflicting testimony was presented regarding whether Swift met the requisite amount of time required to establish standing under the Family Code. The trial court granted Bruno’s plea to the jurisdiction and motion to dismiss, and awarded Bruno $4,000 in attorney’s fees. In its findings of fact and conclusions of law, the trial court found that Swift did not have actual care, control, and possession of the children for at least six months. The trial court concluded that Swift lacked standing under section 102.003(a)(9) of the Family Code to bring a SAPCR. Swift now appeals.
The majority held the Trial Court erred by dismissing the lawsuit because Swift raised a fact issue on whether he is and was in fact a parent.
Justice Rebecca Simmons filed a dissenting opinion. She felt “At best, the evidence shows Swift lived in Bruno’s home for approximately nine months. According to Swift, he would: sometimes put cereal out for the children in the morning; eat dinner with the family; drive the children to school; help with homework; take the children fishing; bath the youngest child; and the girls called him “Daddy.” Justice Simmons felt these activities are typical of those undertaken by stepparents and felt the majority’s broad interpretation of 102.003 would give almost anyone involved with children for more than six months standing to file SAPCR. Justice Simmons cites, Troxel as a parent’s fundamental right to make decisions for their children as well as In the Interest of M.J.G. 248 S.W.3d 753 where the grandparents of MJG had a heck of a lot more involvement with the children than Swift had with YB and the Motion to Strike was granted in the MJG case. Based on the evidence in this case there was no fact issue because there were no facts establishing Swift mad any decisions at all concerning the health, education and welfare under the M.J.G. standard. Seems like Justice Simmons got it right. Under the majority’s standard, almost anyone would qualify for standing because the burden to create a fact issue on this is so low.
03.06.10
Texas Attorney General attempts to stop divorce
As reported by the ABA, the Attorney General of Texas intervened in a divorce case involving a same-sex couple. It appears the Attorney General’s position is that since Texas doesn’t recognize a same-sex marriage (from Massachusetts) it is not possible to legally end the marital relationship. Texas has a voter-approved state constitutional amendment not recognizing same-marriage and the Texas Family Code prohibits same-sex marriages or civil unions. If there is no valid legal marriage, then there would be nothing to adjudicate or determine. Stay tuned, this issue has already come up in Dallas and is headed for the Court of Appeals with probable review by the Texas Supreme Court.
03.05.10
Taking Child to Church Could Land You in Jail
As reported by the ABA Journal
In a surprising move by a Cook County Circuit Court, a father could be held in contempt of court for taking his daughter to Church in violation of a Court Order that requires her to only be exposed to Judaism. Oral arguments are expected today.
03.04.10
Important Winter Safety Tips
The following is a guest blog article by Dolan Law Offices:
Winter’s not quite over yet and for much of the country this season has been far from a winter wonderland. In fact, the Associated Press is reporting that 49 out of the 50 states had snow during the month of February – Hawaii being the lone holdout.
While many of us long for the warmth of summer, it is important that we remain vigilant to the dangers that winter brings with it. Until the spring flowers emerge, we should all remember the following winter safety tips to avoid serious personal injuries:
- Slow Down: whether you are driving or walking – slow down. Speed is a common reason for accidents during the winter months when feet and tires can easily give way to slippery conditions.
- Winterize Your Car: prepare your car for winter travel by having a mechanic check all of the fluids and making sure that you have the right tires on your car. A properly winterized car can avoid help you avoid accidents.
- Clean Ice and Snow from Your Vehicle: clean all of the ice and snow off of your car – including all of your windows and the hood, trunk and roof of your car. If ice or snow slips off of your car while you’re driving and hits the windshield it can cause a serious accident.
- Wear a Helmet for Outdoor Sports: a helmet can help avoid traumatic brain injuries when worn during winter sports such as skiing, ice skating and sledding. Choose a helmet that fits you well and will protect you in a fall or collision.
- Choose Safe Sledding and Skating Spots: Be careful where you choose to enjoy winter sports. If you are ice skating make sure that the ice is thoroughly frozen and safe for skating. If you are sledding be careful to avoid trees, cars, and other people.
- Be Careful with Your Snowblower: snowblowers cause serious injuries, including amputations, every year. Never leave the machine running or put your hands near the chute.
- Take Care of Your Property: sidewalks, walkways and driveways can become slippery with just a slight coating of snow, sleet or ice. Be sure to promptly remove any accumulating snow and to properly sand and salt the paved (and concrete) areas of your property so that people do not slip and fall.
We hope that these tips help keep you safe – both from injury and potential liability.
This post by Dolan Law Offices, P.C. a firm of Illinois truck accident attorneys.
01.06.10
Ne Exeat Clause Reviewed by the United States Supreme Court
The United States Supreme Court granted certiorari (I was unable to find a copy of the Order as of the drafting of this article) in the case Abbott v. Abbott, 542 F.3d 1081. This interesting case involves the interpretation of the Hague Convention on International Child Abduction for purposes of whether a ‘Ne Exeat’ confers a right of custody for purposes of the Hague Convention. A Ne Exeat clause is the generic term used by Courts and Lawyers for a clause in custody agreements that prohibits one parent from removing the child from the child’s home country without the other parent’s consent. Apparently the Abbott’s had such a clause in their custody and conservatorship order. The Hague Convention (the child custody portion) requires that once a child has been removed from his or her home country that to be eligible for return back to the home country the parent requesting the return must have “rights of custody’ which include ‘the right to determine the child’s place of residence’ Mr. Abbott argues the Ne Exeat clause in his custody order grants such a right. Ms. Abbott disagrees. The Federal Court of Appeals are split on this issue the U.S. Supreme Court granted review.
Here are the background facts of the Abbott’s:
Timothy Abbott, a British citizen, married respondent Jacquelyn Vaye Abbott, a U.S. citizen, in England in 1992. Their son A.J. was born 1995. Sometime in 1998, the Abbotts moved to Chile, where Mr. Abbott had accepted a new job.
The Abbott’s separated in March 2003. Litigation in the Chilean family courts produced various court orders. The first, entered in January 2004, granted Mr. Abbott “direct and regular” visitation rights. The second, entered in November 2004, left daily care and control of A.J. with the Ms. Abbott. The third, entered in February 2005, expanded Mr. Abbott’s visitation rights to include a full month of summer vacation. The fourth, entered on January 13, 2004, prohibited both parents from removing A.J. from Chile without written authorization from the court. In addition to the Chilean family court ne exeat order, petitioner also held a ne exeat right under a Chilean statute that requires authorization from a parent having visitation rights before the other parent may take a child out of Chile.
In July 2005, Mr. Abbott sought an order from Chilean courts that would have expanded his rights with respect to his son. Shortly thereafter, in August 2005, Ms. Abbott took A.J. out of Chile without Mr. Abbott’s knowledge or the court’s consent. Mr. Abbott hired a private investigator and, four months after the removal, located his son in Texas.
Mr. Abbott filed suit in federal district court in Texas, seeking to have his son returned to Chile pursuant to the Hague Convention. The district court denied Mr. Abbott’s request. The court concluded that the removal was not “wrongful” within the meaning of the Hague Convention because Mr. Abbott’s ne exeat right did not constitute a right of custody under the Convention.
On appeal, the Fifth Circuit affirmed. The Fifth Circuit acknowledged that the other Federal Circuit Court were divided;
- the Second Circuit held that ne exeat doesn’t create a custody right. Croll v. Croll, 229 F.3d 133 (2d Cir. 2000), cert. denied, 534 U.S. 949 (2001)
- the Eleventh Circuit held that ne exeat did create a custody right. Furnes v. Reeves, 362 F.3d 702 (11th Cir.), cert. denied, 543 U.S. 978 (2004)
My guess is that the Supreme’s will hold it does not, by itself, create a custody right. The Chilean custody order clearly gives the mother the superior custody right – the right to determine the primary residence of the child. The Hague Convention specifically differentiates between ‘custody rights’ and ‘visitation rights” My sense is that unlike in the United States where our laws are designed to create and encourage a post-separation coparenting environment, that most of the other countries opt for a custody arrangement whereby one parent has the majority of the parenting rights and the noncustodial parent’s rights are relegated inferior to those of the custodial parent. If you take the literal meaning of the Hague Convention on this issue I think it is a stretch to hold otherwise. Presumably, the other signatory countries, besides the United States, signed and ratified the treaty because it’s congruent with their ideas and beliefs about post divorce and post separation child rearing. To hold otherwise would not only confer rights to Mr. Abbott he specifically did not have, it could have the unintended effect of having signatory countries deratify the treaty.