Friday, August 28, 2015

What is child abandonment in the State of Texas?

I get asked this question almost weekly from folks.

So I looked it up in the Texas Family Code.

Chapter 262 - Procedures in Suit by Governmental Entity
Subchapter D - Emergency Possession of Certain Abandoned Children
Section 262.301-307

This is the only chapter that the General Index of the Texas Family Code addresses "abandoment of children".

It basically covers what happens when a child is abandonment at a hospital or other emergency care provider.

I often ask a follow-up question when I'm asked this question - what do you hope to accomplish?

The answers are basically one of the 4 below:

1. I want to terminate his/her parental rights.

Ok. Generally in Texas (not 100% -- but it's not easy) a judge will not terminate a parent's rights unless there is a new person in the wings ready, willing and able (must be able to pass a criminal background check and the child has to want to be adopted by the person if the child is old enough to speak).

In Texas, normally a fiance cannot adopt. If you want the new person to adopt then get married and wait approximately a year.  Why? Because if the new person adopts and then you divorce since that person is now the "father/mother" you will be co-parenting with that ex-spouse.  And that spouse would be paying child support and carrying health insurance just like the prior parent did.

Most courts frown on "bastardizing" children. If you were to die then your child would be an orphan without anyone to raise the child.  Judges don't like leaving a child a possible orphan.

If the parent is current on child support then it is very hard to terminate a person's parental rights.

Parental rights are taken seriously in Texas and there are several hurdles to overcome this basic human rights presumption.

Termination normally requires a lot of work and an attorney to represent the child's interests. You have to pay for it. It is not cheap. Most attorneys that do this sort of work charge several thousand dollars. I normally warn people that if they don't have $5,000 for legal fees and expenses then they need to think a long time before filing a lawsuit to terminate parental rights.

I'm not saying it's not impossible -- but it's not easy.

Also, merely because you want to terminate your parental rights a judge will probably not do it.
Both parents are supposed to financially support their children.

2. I want to make all the decisions regarding the child.

Again, most judges expect parents to co-parent with the other parent.  You might be apart but it does not mean that the other parent is "forgotten".

The child is 50% you and 50% of the other parent.

I have seen in some pretty horrible custody cases where a judge will change custody if one parent refuses to co-parent effectively with the other parent. Again,. it's not easy to lose custody but it has been done in Texas courts.

3. I want him/her out of my life.

See #2 above.
That is not a valid argument.

4. He/She is difficult and is "controlling".

See #2 above.
This is not a valid argument.
If the other parent is "controlling" there are options like for communication between the parents to avoid nasty and hostile communications.

You might also seek counseling to learn how to work with difficult, controlling people.

In summary, abandonment is a term that lay people use but that family law attorneys rarely use.

If you need more information, you need to schedule a meeting with an attorney in person to discuss your options.

Thursday, July 23, 2015

La Porte Police offer safe exchange for children & to meet strangers to sell/buy items

Exchange Safety Zone now offered by LPPD to area residents

July 2015 marks a new era in camera-monitored safety for La Porte residents. 

Now placed along the front parking lot of the LPPD Police Facility, located at 3001 North 23rd street, is a citizen exchange safety zone, which will allow area residents to make property exchanges and on-line initiated sales transactions in a well-lit public area which is monitored by police surveillance cameras. 

Additionally, while civil in nature, child custody exchanges can also occur in the digitally monitored section.

The exchange zone is LPPD’s response to a national trend in violence and theft offenses during the exchange of property, stemming from various on-line exchange sites, such as Craigslist, E-Bay, and others. 

Essentially, some criminals pose as traders, then rob or assault other parties when an exchange of property was initially agreed upon. Now, with safety zones popping up across the nation, various transactions can occur in relative safety. 

Moreover, with police facility zones, such as the one offered by the City of La Porte, should a citizen experience any problems during the transaction, they are but a few feet away from the front door of the police department. 

Equally important, police can immediately ensure video evidence is secured for any investigations and/or criminal prosecution.

For more information on LPPD’s citizen exchange safety zone, or if you have been a victim of crime related to a property exchange, please contact the LPPD Criminal Investigation Division at 281-842-3173.

Sunday, June 28, 2015

$300 per side for 4 hours - mediation fees

My 2015 mediation fees are:

$300 per side for 4 hours ($600 total)
Then if we go longer than 4 hours, $75 per side per hour ($150 total)

I do not bill so payment is due at the time of the mediation.

I also charge a cancellation fee of $300 if the mediation cancels with less than 72 hours notice.

No discount if the mediation settles in less than 4 hours.

I offer free parking, snacks, drinks & a safe secure environment in which to discuss your concerns.

If you need a free mediator, try the Harris County Dispute Resolution Center or the Harris County DRO.

Montgomery County and Ft. Bend counties have their own free mediation services.

Need to divorce someone in Mexico or South America - call this attorney!

If you need a family law attorney to handle a case in Mexico or another South American country, I would call...

Don E. McClure, Jr., PLLC
Attorney at Law
8866 Gulf Freeway, Suite 440
Houston, Texas 77017
(713) 571-7777 phone 
(713) 223-0501 fax

I recently was appointed by a court to find a missing husband in Venezuela. Don represented the wife who lived in Harris County. He did an outstanding job sending all the papers via Federal Express to Venezuela along with having all documents sent in English and Spanish.

I wish every attorney that I worked with was a responsive, quick and professional as Don McClure. He was a true pleasure to work with on this unusual case.

Not many Houston attorneys will do divorces that involve people in other countries. Don did an outstanding job representing his client.

We were able to get his client divorced easily and quickly in front of the judge.

I told Don that I would add him to my blog so that hopefully other people could find him.

Tell him that Fran sent you when you call him!

Tuesday, June 23, 2015

List of DWI attorneys in Houston area

A friend needed a DUI attorney and I got a bunch of names.
I don't know most of these folks  -- so call and see if you like them & what they charge -- I'm listing them because other attorneys recommended them from a post on a facebook attorney group that I belong to.

Tim Greene

Johnny Venza

Sean Darvishi

Eddie Cortes

Johnny Papantonakis

Allen Cease

Wilvin Carter

Larry McDougal

Jeff Heintschel

Steve Shellist

Elan Levy

Grant Scheiner

Mark Theissen

Allette Williams

C A Palumbo

3 types of mediation exist

Understanding the three styles of mediation can help you understand the mediation process better.

There are pros and cons to each and many mediators use one or more types during the mediation process.

There is not one form that is better than another.

Most family law attorneys prefer the evaluative style. 

Facilitative Mediation:  This was the original style of mediation and is still in use today. The goal is to help parties reach an agreement based on information and understanding. Attorneys might participate, but the disputing parties are in control of designing the resolution. 

Evaluative Mediation:   Mediators point out weaknesses in each case and predict the outcome of litigation. Disputing parties have a bit less control, but this is still an effective way to settle a dispute because it provides a no-nonsense view of the situation.

Transformative Mediation:  This is the newest style of mediation and is based on empowering and recognizing each party’s concerns and needs. The benefit of this style is its ability to transform the relationship of the disputing parties. Parties are in control of the outcome, there is no pressure or threat, and when all is said and done, the relationship could continue and flourish.

I tend to use evaluative with a bit of facilitative and transformative thrown in. In family law mediation, I find that emotions run deep and that they must be dealt with before true negotiations can occur. It is not my job to determine who is telling the truth - the judge does that. I only give people options to move forward in the future with less frustration and aggravation. I often say "I don't have a horse in this race" so I'm not truly invested in the final outcome. I like to "reality test" -- if you spend $10,000 on a trial but only get $2,000 back then how is that a good use of your money?

I recently did a mediation between a consumer and the owner of an automotive repair shop. The owner of the shop was livid because after 25 years of being in business with only happy customers he was being sued. Sure it was a business lawsuit but he could not discuss settlement until I listened to his hurt emotions at being sued. His reputation meant everything to him and being sued hurt him deeply. We eventually settled but not until he got all the "stuff" off his chest. 

Wednesday, June 17, 2015

Spousal Maintenance aka spousal support in Texas

When deciding whether to order an award of spousal support, also known as alimony, in the state of Texas, the family court will examine a number of factors, such as if domestic violence has occurred within 2 years before filing,  the parties’ financial conditions, their family situations, and the length of the marriage.  

To learn more read the Texas Family Code Chapter 8 on Maintenance. 

Texas law provides that one of the several factors the courts should consider when ordering an alimony award is whether the parties have been married at least ten years, and whether without spousal support, the party seeking it will not otherwise be able to earn an income or have sufficient property to provide for the persons minimum reasonable needs.

Generally, the length of the marriage impacts the duration of spousal support payments. In most cases, if the parties were not married more than ten years, spousal support payments will not be ordered for a term of longer than five years. If the parties were married for at least twenty years, spousal support may be ordered for up to seven years. If the parties were married more than thirty years, spousal support payments will typically cease after a maximum of ten years.

Of course, these factors are considered with a multitude of other elements, and each case will be decided differently. The duration of the marriage, however, is carefully considered.

Texas also imposes a limit on the amount of maintenance – usually around 20% of the spouse’s average monthly gross income.

At mediation, parties can vary from the Texas Family Code regarding the duration and amount of spousal maintenance aka spousal support. 

spousal maintenance.  

Child custody and Child Visitation in Texas

Resolving custody and visitation issues is the most emotional phase of a Texas family court case.  

In most cases, the parents are nervous and scared as they await the court’s decision on the issues involving custody and visitation.  

Many parents may be unaware as to the factors the Texas family courts consider in these decisions. No case is won or lost on one issue. The parent complaining will need to show an ongoing and repeated problem. And the mistake must be within the last 2 years. I've seen men that have felonies get custody of their children because their prison time happened 15 years ago and they have been employed and leading a clean life since getting out of prison. 

The best interests of the children take priority in any family court decision.  

The Texas Family Code does not define "best interests" so it's left up to the judge to determine what that means. Each judge has their own opinion of what this term means. Plus, appellate courts have limited grounds to reverse a lower court judge. Appeals are expensive and take a long time.

To determine which arrangement is in the children’s best interests, the family courts examine a number of factors.  These include the parent’s relationship with the children, the health of the parties and the children, the residences of the parents, whether there is any history of abuse, and the ability of the parents to provide financially for the children. 

Texas law also allows children over the age of 12 to meet with the judge in chambers and state their preferences.  However, it is left to the discretion of the family court judge whether to consider the child's opinion when making the final decision.

For example, one judge met with the kids and came out with a piece of paper hand-written by the Mom on what they were to say to the judge. The mom did not get custody.

Many judges will appointed an attorney to represent the child's interests in contested family law cases. This attorney is called an amicus.  Both parties pay for this attorney's services. Their fees start at $500 and go up to $25,000 or more. Many run $1,500 - $5,000. It's a lot of work. And both parties usually hate the amicus if the person tries to do their job. Normally the judge appoints an attorney they know and respect. Even when the amicus charges a reduced legal rate because there is so much work involved it can easily run thousands of dollars. Judges expect these people to be paid in full. 

Issues involving the children are never set in stone.  After custody and visitation issues are finalized in a case, should a substantial change in circumstances occur, the parents may seek a modification the family courts.

Often when a child reaches puberty, custody changes. This happens all the time - especially when boys want to see their Dad's more.

Many people are unaware that it's important to get as many "rights and duties" as possible regarding the children. You can ask that most of the rights be independent or by agreement with a tie-breaker if the parents cannot agree.

And a parent can elect for an EXPANDED POSSESSION ORDER - this gets the non-custodial parent around 45% of the time with the kid. It does not mean that the non-custodial parent won't pay child support! 

It is presumed JOINT MANAGING CONSERVATORS in Texas. This term does not mean that one person won't pay the other child support.

Child support is for the child - the custodial parent is not getting rich off of child support - especially a parent that is paying for daycare and diapers then usually their child support is less than diapers, formula and daycare.

Both parents are expected to contribute to their child's needs. So many stay-at home parents have to go out and get a paying job. 

Many times the stay-at home parent ends up living in poverty because they cannot make what the other parent used to make. It's not fair but I've seen it happen many times. I often suggest that people stay married if they want their lifestyles to remain the same. 

When a family breaks up, there are now 2 rents, 2 utilities, higher grocery bills, higher clothing costs for the kids, etc. Breaking up a family is expensive. (It's cheaper to keep her/him.)

I encourage people to read the many Texas family law websites out on the internet. Please don't talk to your friends and family unless they are family law attorneys - corporate attorneys tend to give poor advice! 

Look on the Houston Bar Association's website for their free family law booklet.  Look on for some good basic Texas family law information. There is even the Texas Attorney General website. There are many Texas child support calculators on the internet.

If you are from another country or another state, you are in for a huge surprise. You are now in Texas and Texas is not in step with many states regarding allowing our children to leave the state.

If you re-marry, get transferred or want to move to be closer to family, then the other parent will be given custody and you can "visit" your child and pay child support. It does not matter if your new spouse is in the military and being transferred, if the other parent was an active parent then the kids might go to that parent. And women do not always get primary custody just because they gave birth. Texas is a gender neutral state. When I litigated I represented 50% men and I got many men custody. For example, I mediated a case where Mom traveled all over the world on a weekly basis and dad stayed home with the kids for 15 years. Dad never worked. Mom could not believe that she would not get custody and that she had to split all assets 50/50. Welcome to Texas! 

I've seen judges on many occasions issue a writ of habeas corpus for the child when one parent has left the state and not appeared at the Texas hearing. Most Texas judges want the children to live close to both parents so that both parent can co-parent their child.  If a child was born in Texas, then the child remains a Texas resident for 6 months after he/she leaves the state. Texas will win the jurisdictional argument in the new state. (And yes I've been involved in a case where the Texas judge called the judge in another state and demanded "his child back now"! Much arguing and screaming occurred but the child was returned to Texas within 2 days.)

In child custody and child visitation cases, never assume anything. Otherwise you might look like make a huge mistake. 

Before you do anything, talk to an experienced family law attorney in YOUR county.

If you want a creative resolution to your child custody or child visitation case, then consider mediation. Mediators do not have to follow the Texas Family Code which Judges are required to follow.

Termination of Parental Rights in the State of Texas

The termination of parental rights is a decision that is not taken lightly by the Texas family courts.  

In fact, the person whose rights are going to be taken away is given every opportunity to try to maintain them. Being a parent is a fundamental right in the US and courts frown on removing a person's parental rights.

When a parent’s rights are terminated, that individual’s parental duties cease as well.  The parent becomes a "stranger" to the child. They have no rights to ever see the child again until the child is 18.  However, when the child becomes an adult at 18 then the child can reach out to them.

Therefore, the family courts must have clear and convincing evidence that certain events have occurred before parental rights will be terminated, and the parental duties will end.

Due to several reversal of cases many years ago where a person's parental rights were re-instated by a higher court, the trial court judges bend over backward now to make sure everything is done properly to avoid appeal. It destroyed several children that were returned to their bio parent many years after the termination was done -- the kids were "ripped away" from the only family they had known and placed with the bio parent. At least one judge told me he would never ever have that happen again as long as he was on the bench! He saw the destruction of the children first hand and it impacted him years later. 

Many judges will not terminate a parent's parental rights - why? Because if the one parent left dies then the child is an orphan. Sometimes a bad parent is better than no parent.

If a person has made bad decisions such as drugs, alcohol, driving drunk with the kid in the vehicle, shop-lifting with the child, child endangerment, etc. the parent might have their rights limited and their visits supervised.
Many large counties in Texas have agencies that supervise visits. Normally the other parent does not do the supervising.

I've seen the judge on very rare occasions make a list of things that a parent must accomplish before any visitation of any kind occurs - such as successfully complete a long drug treatment, successfully complete anger management classes, complete some intensive parenting classes, random drug tests for 1-2 years, etc.  But recognize that this limited visitation is rare -- normally the person came to court drunk, stoned, yelled at the judge, threatened to kill the anger management Executive Director, got thrown out of supervised visitation due to their bad behavior, current on probation for injury to the child in question, or something similar. Being a "jerk" is not enough!

If a parent has abandoned the child and has expressed no intent to return, the courts may decide to terminate the parent’s rights.  Additionally, if a parent either places or allows the child to stay in an environment that is dangerous, parental rights may be terminated.  

The family courts will also consider whether the parent has stopped supporting the child, whether the parent has been convicted of a crime involving the harm of a child, and whether the parent has signed an affidavit that expresses a desire to have parental rights terminated.  
Other events may also be considered.

If the family court determines that grounds for termination has occurred, the parent no longer has an obligation to support the child.  This means that any child support orders will cease, and the parent may not be ordered to pay support in the future.

If you have any questions, talk to an experienced family law attorney in your county. Each judge is different (they are human beings with their preferences) and each case must be presented in such a way that it will impact the judge. 

Merely being a bad spouse or having had an affair(s) is not grounds to terminate.