Interstate Jurisdiction

May
14

Summer Visitation Schedules for Texas Fathers

This question causes many divorced or single parents much stress concerning meaningful contact with their children. “What do I need to do to legally secure my specific summer visitation periods with my kids?” Since we have commenced the 2017 summer season here is a general breakdown today of the law on summer visitation:

Family code: 153.312: Notification of Summer Visitation: Parents who reside 100 miles or less apart.

A possessory conservator gives the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 30 days beginning not earlier than the day after the child’s school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, to be exercised in not more than two separate periods of at least seven consecutive days each, with each period of possession beginning and ending at 6 p.m. on each applicable day; or does not give the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 30 consecutive days beginning at 6 p.m. on July 1 and ending at 6 p.m. on July 31;

If the managing conservator gives the possessory conservator written notice by April 15 of each year, the managing conservator shall have possession of the child on any one weekend beginning Friday at 6 p.m. and ending at 6 p.m. on the following Sunday during one period of possession by the possessory conservator under Subdivision (2), provided that the managing conservator picks up the child from the possessory conservator and returns the child to that same place;
and
If the managing conservator gives the possessory conservator written notice by April 15 of each year or gives the possessory conservator 14 days’ written notice on or after April 16 of each year, the managing conservator may designate one weekend beginning not earlier than the day after the child’s school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, during which an otherwise scheduled weekend period of possession by the possessory conservator will not take place, provided that the weekend designated does not interfere with the possessory conservator’s period or periods of extended summer possession or with Father’s Day if the possessory conservator is the father of the child.

Divorce, paternity or other orders setting out access/possession rights should specifically set out this information. Such orders are usually custom and specific on times and dates for summer and other holiday visitations.

In today’s world, a statutory preset structured visitation schedule does not always work in a blended family environment. Many fathers are now either sole managing conservator or co-managing conservators with the mother. The current standard visitation schedule is used more as a basic presumed schedule to which extended time may be added for cause good for more equal shared time with the children.

With an enlightened public awareness and presumption under law that children need quality time with both parents, many parents are looking for modifications to child visitation orders that agrees with their lifestyles to share their children equally and fairly.

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Jan
05

Out of State Child Relocation and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

In today’s hectic pace, moving to another state for business, family demands, or pleasure is a very common occurrence. But what about the family that is separated by divorce or separation and share custody of their children?  What happens to this family situation when Mom or Dad decides to take another job or wants to move to another state and take the children to or from the other? A Child Custody Relocation Case?

Sadly this happens frequently. Most Texas attorneys employ a geographic restriction in divorce decrees for couples who have children.  These restrictions dictate that the Child and Custodial Parent must live within a school district, County of Domicile, or consecutive contingent counties near the non-custodial parent. But what happens if this restriction clause is not contained in the divorce decree or if Dad/Mom were never married?

Forty Nine States, including Texas have adopted the UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) drafted by the National Conference of Commissioners on Uniform State Laws in 1997. The UCCJEA is a very helpful law since all states but one participate in the determination  of the ”HOME STATE” and which jurisdiction will  handle the family case. UCCJEA also helps to protect non-custodial Parents fighting for child custody out of state when their children have been moved to another state or over 100 miles away from them.

How does The State of Texas treat an initial Child Custody determination?

Texas Family Code 152.201 of the UCCJEA states, among other things, that a court may consider custody issues if the Child:

*Has continually lived in the state for 6 months or longer and Texas was the home state of the child within six months before the commencement of the legal proceeding.

*Was living in the state before being wrongfully abducted elsewhere by a parent seeking custody in another state. One parent continues to live in Texas.

*Has an established over significant time relationships with people (family, relatives or teachers), ties, and attachments in the state

*Has been abandoned in an emergency: or is safe in the current state, but could be in danger of neglect or abuse in the home state

Relocation is a child custody situation which will turn on the individual facts of the specific case, so that each case is tried on its own merits.

Most child custody relocation cases tried in Texas follow a predictable course:

  1. Allowing or not allowing the move.
  2. Order of psychological evaluations or social studies of family members
  3. Modification of custody and adjusting of child’s time spent with parents
  4. Adjusting child support
  5. Order of mediation to settle dispute
  6. Allocating transportation costs
  7. Order opposing parties to provide all information on child’s addresses and telephone number.

There is another important cause of action in Texas where the court will “take “EMERGENCY JURISDICTION’ over a case even though another state has the original jurisdiction. If the opposing party can prove that a legitimate emergency exists and Texas needs to assume the jurisdiction. These emergency situations could be abuse of the child, abandonment or cause neglect of the child, or any action that would put the child in immediate harm’s way.

The Nacol Law Firm P.C. @ www.nacollawfirm.com  is committed to helping parents have the right to have frequent and continuing contact with their child at all times and encourage parents to co-share in the rights and duties of raising a stable, loving child. Many times, because of parental alienation or other personal factors, a child will be taken away from the non-custodial parent and this can cause some serious mental and behavior problems for the child which could follow her/him into a lifetime adult situation.  

Sometimes you can settle, SOMETIMES YOU FIGHT FOR YOUR RIGHT!  We can help!

By Nacol Law Firm | Child Custody . Interstate Jurisdiction
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Preventing Out of State Relocation of Children by Custodial Parent

Mom and Dad are divorcing or have been divorced and are now sharing joint custody of their children in the same city in Texas.  One parent receives a letter from the other parent’s attorney requesting that this parent be allowed to relocate the children to another state so he/she may take a better job position with another company!  This is a dilemma no parent ever wants to experience!  Child Custody cases involving interstate relocation jurisdiction issues cause much heartache and are costly legal battles.

What can a Parent do to protect themselves from children being relocated away from the non-moving parent to another state without her/his consent?   How may this affect the parent’s relationship with the children?

The Texas Family Code 153.002 Best Interest of Child states “The best interest of the child shall always be the primary consideration of the court in determining the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”

The Texas Family code does not elaborate on the specific requirement for modification in the residency-restriction context, and there are no specific statutes governing residency restrictions or their removal for purposes of relocation. Texas Courts have no statutory standards to apply to this context.

The Texas Legislature has provided Texas Family Code 153.001, a basic framework on their public policy for all suits affecting the parent-child relationship:

  1. The public policy of this state is to:

  1. Assure the 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;

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

How does The State of Texas treat an initial Child Custody determination?

Texas Family Code 152.201 of the UCCJEA states, among other things, that a court may rule on custody issues if the Child:

*Has continually lived in that state for 6 months or longer and Texas was the home state of the child within six months before the commencement of the legal proceeding.

*Was living in the state before being wrongfully abducted elsewhere by a parent seeking custody in another state. One parent continues to live in Texas.

*Has an established relationship with people (family, relatives or teachers), ties, and attachments in the state

*Has been abandoned in an emergency: or is safe in the current state, but could be in danger of neglect or abuse in the home state

Relocation is a child custody situation which will turn on the individual facts of the specific case, so that each case is tried on its own merits.

Most child custody relocation cases tried in Texas follow a predictable course:

  1. Allowing or not allowing the move.

  2. Order of psychological evaluations or social studies of family members

  3. Modification of custody and adjusting of child’s time spent with parents

  4. Adjusting child support

  5. Order of mediation to settle dispute

  6. Allocating transportation costs

  7. Order opposing parties to provide all information on child’s addresses and telephone #

Help to Prevent Your Child’s Relocation in a Texas Court by Preparing Your Case!  

  1. Does the intended relocation interfere with the visitation rights of the non- moving parent?

  2. The effect on visitation and communication with the non-moving parent to maintain a full and continuous relationship with the child

  3. How will this move affect extended family relationships living in the child’s current location?

  4. Are there bad faith motives evident in the relocating parent?

  5. Can the non-moving parent relocate to be close to the child? If not, what type of separation hardship would the child have?

  6. The relocating parent’s desire to accommodate a new job, spouse, or other criteria above the parent-child relationship. A Parent’s personal desire for move rather than need to move?

  7. Is there a significant degree of economic, emotional or education enhancement for the relocating parent and child in this move?

  8. Any violation of an order or prior notice of the intended move or a temporary restraining order

  9. Are Special Needs/ Talents accommodated for the child in this move?

  10. Fear of child and high cost of travel expenses for non-moving parent or child to visit each other to be able to continue parent- child relationship.

  11. What other Paramount Concerns would affect the child concerning the relocation from the non-moving parent?

At the Nacol Law Firm PC, we represent many parents trying to prevent their child from relocating to another city or state and having to experience “A Long Distance Parental Relationship” brought on by a better job or new life experience of the relocating parent! We work at persuading courts to apply the specific, narrow exceptions to these general rules in order to have child custody cases heard in the most convenient forum in which the most qualifying, honest evidence is available; cases where the child’s home state or other basic questions are clarified, and cases where a parent has the right in close proximity with their child regardless of other less important factors.

By Nacol Law Firm | Child Custody . Interstate Jurisdiction
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Interstate Jurisdiction Cases when a Parent Abducts their Child

Parental child abduction is the offense of a Parent wrongfully removing, retaining, detaining or concealing their child from the other parent. This often occurs when parents separate or divorce proceedings begin. The abducting parent may consensually remove or retain the child to gain an advantage in pending child-custody proceedings or because the parent fears losing the child in the divorce proceeding. Many times the abducting parent may refuse to return a child at the end of an approved visit or may flee with the child to prevent the other parent from seeing the child or in fear of domestic abuse.

Many abducting parents try to take the child across state lines (Interstate Jurisdiction issues) or out of the country to make sure that the child will never be found by the other parent. They would rather live a fugitive than lose their child.

Are there any laws to stop this child abduction to another state or country? The Uniform Child Abduction Prevention Act (UCAPA) provides remedies with valuable enforceable tools in deterring both domestic and international abductions by parents and unethical people or agents on their behalf. This Act empowers courts to impose measures designed to prevent child abduction both before and after a court has entered a custody decree. Unfortunately, the UCAPA has only been enacted in eleven states (Alabama, Colorado, Florida, Louisiana, Kansas, Mississippi, Nebraska, Nevada, South Dakota, Tennessee, and Utah) and District of Columbia, since its inception.

In Texas Interference with child custody is a felony!
Texas currently follows the Texas Penal Code 25:03, Interference with Child Custody:

Sec. 25.03. INTERFERENCE WITH CHILD CUSTODY. (a) A person commits an offense if the person takes or retains a child younger than 18 years of age:

  (1) When the person knows that the person’s taking or retention violates the express terms of a judgment or order, including a temporary order, of a court disposing of the child’s custody;

  (2) when the person has not been awarded custody of the child by a court of competent jurisdiction, knows that a suit for divorce or a civil suit or application for habeas corpus to dispose of the child’s custody has been filed, and takes the child out of the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, without the permission of the court and with the intent to deprive the court of authority over the child; or

  (3) Outside of the United States with the intent to deprive a person entitled to possession of or access to the child of that possession or access and without the permission of that person.

    (b) A noncustodial parent commits an offense if, with the intent to interfere with the lawful custody of a child younger than 18 years, the noncustodial parent knowingly entices or persuades the child to leave the custody of the custodial parent, guardian, or person standing in the stead of the custodial parent or guardian of the child.
(c) It is a defense to prosecution under Subsection (a) (2) that the actor returned the child to the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, within three days after the date of the commission of the offense.

    (C-1) It is an affirmative defense to prosecution under Subsection (a) (3) that:

      (1) The taking or retention of the child was pursuant to a valid order providing for possession of or access to the child; or

(2) notwithstanding any violation of a valid order providing for possession of or access to the child, the actor’s retention of the child was due only to circumstances beyond the actor’s control and the actor promptly provided notice or made reasonable attempts to provide notice of those circumstances to the other person entitled to possession of or access to the child.

  (C-2) Subsection (a) (3) does not apply if, at the time of the offense, the person taking or retaining the child:

    (1) Was entitled to possession of or access to the child; and

    (2) Was fleeing the commission or attempted commission of family violence, as defined by Section 71.004, Family Code, against the child or the person.

(d) An offense under this section is a state jail felony: Minimum term: 180 days to Maximum Term of 2 years; fine up to $10,000.00

Hopefully, in the near future, more states will adopt the Uniform Child Abduction Prevention Act, but until then, if you think you have a problem with your ex trying to kidnap your child, find out what can be done in your state to stop this before it happens!

By Nacol Law Firm | Interstate Jurisdiction
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Interstate Jurisdiction – Multi State Confusion in Child Custody Disputes

Child custody issues can be difficult for the parties involved at any time, but when the custody case crosses a state line, Dallas family law attorney Mark Nacol warns that many more conflicts and problems may arise.

Most states follow a uniform law regarding determination of appropriate state jurisdiction in custody matters known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and related statutes laws which enforce or set procedures regarding proper jurisdiction such as the Parental Kidnapping Prevention Act.  Texas has adopted these statutes. The Uniform Child Custody Jurisdiction Enforcement Act defines which state has or may maintain jurisdiction in a particular case and often mandates that other states recognize decisions handed down by the state determined to have jurisdiction.

The Act states, among other things, that a court may rule on custody issues if the Child:

  • Has continually lived in that state for 6 months or longer
  • Was living in the state before being wrongfully taken elsewhere by a parent seeking custody in another state
  • Has an established relationship with people (family, relatives or teachers), ties, and attachments in the state
  • Has been abandoned: or is safe in current state, but could be in danger of neglect or abuse in the home state

There are a number of core factors involved in determining which state is appropriate to initiate or maintain an existing suit.  Usually, there are only two states involved, but it is possible to have more than two states involved in cases where there is a frequent moving of the parties and or the children.  Generally, any state in which one of the parties and the child has continually resided for a year may establish venue to commence a lawsuit.

The Nacol Law Firm PC represents parents trying to enforce these laws; cases where there is a need to persuade courts to apply the specific, narrow exceptions to these general rules in order to have custody cases heard in the most convenient forum in which the most evidence is available; cases where the child’s home state or other basic questions need to be clarified, and cases where a parent has violated or has been falsely accused of violating these laws.

By Nacol Law Firm | Child Custody . Interstate Jurisdiction
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