I discussed the Best Interest of the Child standard in the last article, but I wanted to go a little bit more into what a judge might be looking for.
The American Bar Association's A Judge's Guide: Making Child-Centered Decisions in Custody Cases identifies different circumstances and questions a judge make look at in deciding best interest.
Factors for an Infant might include:
For an Elementary Aged Child:
These situations show how parents may be evaluated based on the age and needs of the child. Everything can be very fact specific. When facing custody disagreements, you and your attorney should goes these to best present you argument to the court. Ultimately, you want to show the judge that, while in your possession, the status quo will remain in place for the child, thus ensuring the child's life is disrupted as little as possible.
The main consideration in any case involving children is what's termed in the Texas Family Code as "best interest of the child." Texas Family Code Section 153.002 states that "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."
The term "best interest of the child" is further explained in the leading case Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). The Holley case sets forth nine factors to be “considered by the courts in ascertaining the best interest of the child.” Those factors include:
When custody is a contested issue it is essential that you understand these factors and how they go towards the best interest fo the child. You and your attorney should discuss the factors and strategize how each of them fits the unique circumstances of your case.
If you have questions or want to discuss the specifics of your case, you can schedule a consultation at 972-542-6820 or by scheduling online using the button below.
The vast majority of divorces, child custody cases, and other family law cases do not reach trial. In the vast majority of cases, agreements are reached between the parties prior to trial. The most common form of settlement is through mediation.
Mediation is where an impartial third party works with the parties and through negotiations back and forth helps promote settlement. A mediator’s job is to encourage communication and help present ideas and solutions that the parties are willing to agree to.
Most cases that go through mediation do reach successful settlement. Because mediation can help spouses avoid trials, most courts will require that parties go to mediation before trial.
If the parties do reach an agreement they can execute a written “mediated settlement agreement.” If the mediated settlement agreement includes certain things such as prominently displayed language that the agreement is not subject to revocation and is signed by the parties and attorneys then the agreement is binding.
A properly executed settlement agreement is binding immediately and even the court has limited power to deny the agreement. A court may only review whether the agreement is illegal or one party entered into it because of fraud, duress, or other dishonest reasons. If no such reason is evident then a party is entitled to judgment on that agreement.
Mediation can be a very effective way to reach a conclusion in a divorce or custody case. Mediation can help craft a custom solution to a party’s particular circumstances that might not be possible in a trial. Mediation can also help the parties save the significant time and money required to proceed to trial.
One area that often causes confusion for people considering divorce is spousal maintenance. Spousal maintenance or what’s often referred to as alimony is a set of payments from one spouse to the other spouse after a divorce.
In Texas, spousal maintenance is intended to provide limited support to the other spouse for a specific period of time after the divorce. The Texas Family Code sets forth 3 parts that must be shown for a spouse to be eligible for spousal maintenance- (1) they must be married, (2) the spouse seeking support must show he or she can’t provide for his or her minimum reasonable needs, (3) the spouse must meet one of 4 conditions (either a ten year marriage, family violence, a disabled spouse, or a disabled child).
The minimum reasonable needs are considered on a case by case basis. Generally, courts will consider a spouse’s ability to make mortgage/rent payments, property taxes, utility bills, car payments, insurance, groceries, medical expenses, child care, and clothing costs.
Then court will then consider what property that spouse has along with that spouse’s monthly income. Generally, the court will compare that spouse’s projected income with his or her projected expenses. If the spouse’s income is less than the spouse’s expenses then the second condition may be met.
Finally, after the first two conditions are met the spouse still has to show that there has been a marriage of at least 10 years, family violence, a disabled spouse, or a disabled child.
Once it is determined that spousal maintenance is possible the amount and length has to be determined. The Family Code sets out factors to be considered such as earning power, separate property, duration of the marriage, spouse’s education and employment skills, homemaker contributions, marital misconduct, and family violence. These factors along with the spouse’s minimum reasonable needs will help the court set forth the length and amount of the maintenance. However, Texas Family Code §8.054 does set forth caps on the length of the maintenance based on the length of the marriage and special circumstances.
Eligibility and appropriateness of spousal maintenance can be an important factor in determining the proper resolution of a divorce case. It is important that clients and their attorneys discuss the ways maintenance may come into play in a divorce.
Many times after a divorce or child custody order is finalized, a party is so relieved that the party fails to recognize that the decree or order places certain notice requirements on them.
Texas law requires that certain notices be placed in any child custody order. Under Texas Family Code 105.06, the parties must be notified that they are required to notify the other party, the court, and the state case registry, of any change in address, telephone number, or employer information. This notice can be involved simply by mailing a letter to the court clerk and the other party (with proof), but often times parties don’t even realize it is there.
Parents are also required to notify the other party anytime certain medical emergencies come up involving the child. There also is normally a requirement that the parent providing the health insurance provide the other parent with a health insurance card and policy information within a certain time frame.
Notices in a decree typically include a requirement that a spouse provide financial information related to the marriage to the other spouse in certain tax situations.
These are just some of the notices that are included in a divorce decree of child custody order. Talk to your attorney and be aware of these requirements so that you can be in compliance with your decree or order.
The Texas State Disbursement Unit is a facility in San Antonio that collects and records child support payments. In a child support order, the court will order that all child support shall be paid to the State Disbursement Unit and then forwarded to the custodial parent.
Once the Disbursement Unit receives the support, it can remit by direct deposit that money into the custodial parent’s bank account. This keeps everything very convenient for both parties.
Sometimes parties get along and the paying parent just sends money directly to the other parent or pays for items directly (school tuition, child care, etc.), however this has the potential for causing problems later on. For instance, there can be disagreements over what has been paid and when. If child support payments are sporadic or inconsistent they can be difficult to keep track of.
The benefit to having the money sent through the Disbursement Unit is there is an accurate record of all support payment amounts and the date those payments were made. The State Disbursement Unit helps protect paying parents who send in child support and helps custodial parents show any support not paid.
Often times, the 401k or other similar retirement account is one of the most valuable assets in a marriage and must be carefully considered as to what is a proper division. The 401k which is subject to the just and right division of Texas Family Code should be considered along with the other assets in a community estate.
As with all other assets acquired during the marriage, the part of the retirement account earned during the marriage is generally community property. If part of the account was earned prior to the marriage, then that portion would be separate and not subject to division.
Once the parties have agreed on a division of the account or the court has ordered specific portions to each party, the account must be actually divided. This is accomplished through a Qualified Domestic Relations Order (“QDRO”). The QDRO tells the retirement plan administrator to divide the account in accordance with the divorce decree. For example, a divorce decree might say each spouse is awarded 50% of the 401k value as of the date of the divorce. If the plan is worth $100,000 then the administrator would then divide the account into two $50,000 accounts.
The spouse whose employment is related to the plan (owner) can continue to work and accumulate more value into the plan. The non-owner spouse would then have 3 options related to the account. The non-owner could cash out the account, rolling the account into an IRA or other similar account in his or her own name, or leave the money in the current plan and take distribution when the owner retires.
Because the 401K or other retirement account is often such a large asset it is important to speak with an attorney to help decide what you are entitled to and what a proper division would be. The decision of what to do with the that account can also have tax consequences so you will want to speak with your accountant or financial planner to decide the best method for you and what the tax consequences would be.
In Collin, Dallas, and Denton Counties, the district courts have what are called “Standing Orders” which take effect in all family law cases automatically. Neither side has to request the Standing Orders. You can view a copy of the Standing Orders for Collin, Dallas, and Denton Counties here.
The Standing Orders attempt to set forth ground rules between the parties the same during the pendency of the divorce or child custody case. For example, the Standing Orders prohibit both parties from taking any children out of state, from changing the children’s schools, or hiding the children.
The Standing Orders also address the conduct of the parties. The orders prohibit harassing communication. They also prohibit threatening the other party, opening mail addressed to the other party, or accessing the other party’s emails, bank accounts, or social media accounts.
Finally, in a divorce case, the Standing Orders also help to maintain the finances of the parties. The Orders prohibit the parties from selling or destroying property and withdrawing funds from bank accounts other than for certain circumstances such as reasonable living expenses and attorney fees. The Orders also prevent parties from withdrawing money from retirement accounts, canceling health insurance, or other necessary insurance.
The Standing Orders will remain in place during the divorce or child custody case unless the court orders alternative orders or the parties reach an agreement. Otherwise, the orders will attempt to keep the status quo between the parties during the case.
A copy of the Standing Orders for Collin, Dallas, and Denton can be accessed here:
Collin County - Standing Order on Children, Property, and Conduct of Parties
Dallas County - Dallas County Family District Courts General Orders
Denton County - Denton County Standing Order Regarding Children, Property and Conduct of the Parties
With the end of March upon us, I thought I'd write a reminder of the summer visitation schedule in the Texas Standard Possession Schedule.
For the non-custodial parent (the parent who doesn't designate the child's residence), April 1 is the deadline to designate your thirty days of extended summer possession. If you designate your possession by April 1, you can pick almost any time during the summer to exercise your extended summer visitation in a continuous 30 days or in two, two week possession periods. If you do not designate by April 1, then the non-custodial parent defaults to July 1 through July 31.
The custodial parent has between April 2 and April 15 to designate one weekend within the non-custodial parent's 30 days of possession when the custodial parent can have possession of the child. If the parent does not give any notice, then the non-custodial parent will have 30 days of uninterrupted possession.
By giving notice by April 15 (or with 14 days notice), the custodial parent can also exercise an additional weekend of possession that would normally belong to the non-custodial parent. This allows the non-custodial parent to exercise an extended period of possession by combining it with the custodial parent's other normal periods of possession.
So parents thinking about summer vacation plans should keep in mind the April notice deadlines to avoid any issues.
If you are going through a divorce it is important to start reevaluating any estate planning documents you have in place. If you've done a will during the marriage, chances are you will need to execute a new will.
Texas law automatically nullifies a will provision giving property to a former spouse if the will was done before the divorce. However, you still need to put in new provisions to state how you want your property divided now. If it's going to your young children you want it to be in a trust and you need to name a trustee. Your old will may have named your spouse as a trustee, but that may not be how you want it handled now.
Additionally, the old will may have named your former spouse as the people entrusted to handle your estate- paying debts and distributing your assets. You probably don't want your former spouse to have that responsibility now.
Finally, if you executed other estate planning documents during marriage such as a Durable Power of Attorney, Medical Directive, Medical Power of Attorney, those will need to be reconsidered too.
A divorce involves many changes and one commonly overlooked part is estate planning. Make sure any estate planning documents are reviewed with an attorney and execute new documents if needed. This will make sure your preferences are carried out if you were to pass away.