In today’s unpredictable economy there has been a continuing growth of small businesses and a substantial decrease of existing established businesses in Texas. In the regrettable instance of “Divorce” how may the “Family Business” be divided between a dissolving couple to reach a fair and reasonable result for both parties?
In such a situation, an experienced Family Law Attorney with the aid of economic experts becomes critical in establishing a fair and equitable price on the business, consulting the client on their rights relative to the business, helping with negotiations for a business entity to be sold, transferred, or appraised, and making sure the client’s rights are protected in the transaction.
The most important fact to establish is a credible determination of the true fair market value of a business and how the business or the business assets are to be divided between the spouses in the divorce.
The dividable interest is determined by the fair market value of the business. This value is the price a willing buyer would pay and a willing seller would give in a purchase with both buyer and seller having reasonable knowledge of the relevant facts of the business and neither being under pressure to buy or sell the business.
During a Divorce, the concept of a credible hypothetical buyer and seller may be determative and very complicated. Going through a divorce is difficult enough, but fairly determining the true value of the business in the process can be complicated and sometimes expensive. There are always two different ideas in every divorce and the family business will bring out the some very serious opinions of just what is the “fair market value”! Ideas may range from too high in today’s economy to too low base on emotional attachments, complicated further by feelings as to possible other family members who own or claim parts of the business. The value placed on proposed purchases that are not part of an arm’s length transaction may not be relevant to the correct fair market value.
To help determine the fair market value and complete the transaction fairly for both parties the family law attorney must be able to obtain and review all business and financial records, financial statements and tax returns, and any other pertinent information for the preceding 5-7 years. Often an independent business appraiser or CPA will be retained to help in determining a credible and correct valuation of the business that a Judge or Jury will respect.
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:
- Allowing or not allowing the move.
- Order of psychological evaluations or social studies of family members
- Modification of custody and adjusting of child’s time spent with parents
- Adjusting child support
- Order of mediation to settle dispute
- Allocating transportation costs
- 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!
Courts, legislatures and juries are becoming more aware of the necessity of father’s being involved in the lives of their children. Children with positive father involvement have fewer behavior problems, higher levels of sociability, and perform better in school.
Recent research suggests that father involvement during pregnancy affects multiple areas of child and family well- being, from prenatal care initiation and mother and child health outcomes, to the likelihood that the father will provide ongoing financial and emotional support. This body of research is gaining momentum. Local and regional governmental agencies are focusing more and more on parental father involvement in the lives of children.
As a result of the changes taking place in society today, the Courts are now recognizing a father’s ability to care for his children as becoming equal to that of the mother. Starting out on an equal plane, the Court may look to which parent is more stable, has a superior income, has a parenting plan in place for the child and is capable of providing proper child care and spending more quality time with the child.
If a father ignorantly gives up rights to his children based on prejudices of the past in the Court system he can feed a mother’s confidence and sponsor unnecessary ongoing litigation. The number one mistake made by father’s in the court system today is a failure to take the time to learn how the system works. Failing to learn how the family law system works may doom your case. Once you have learned the ins and outs of the family law system you will need to form a plan, set goals and never relent in enforcing your rights as a father.
Five of the biggest mistakes men make in a legal action are: 1) failing to respond to the legal action itself; 2) obtaining incorrect legal advice (from friends and family rather than a legal expert); 3) signing a settlement agreement they are not in agreement with and later deeply regretting it; 4) failing to perform under the actual settlement agreement signed; and 5) getting frustrated and/or acquiescing to unreasonable orders.
Some of the things you may want to consider as you prepare for the custody battle are as follows:
- Who has the financial ability to best care for the child(ren)? Be sure to have income tax verification, W-2 Forms and other financial information available.
- Form a parenting plan (child care, after school care, transportation, pediatrician, etc.).
- Who is more stable and/or can provide the best home for the child(ren)?
- Where has the child(ren) been attending school? Is it possible to keep the child in the same school district?
- Prepare a chronology of events leading up to the divorce including treatment of the child(ren), time spent with the child(ren), activities with the child(ren), the child(ren)’s schedule.
- Consider if a home study should be prepared regarding each home of the child.
- Consider whether a psychological evaluation should be done on the mother?
- Is drug testing necessary? (Be sure to request hair follicle drug testing.)
- Is there an alcohol or other addiction problem in the home?
- Who can provide the best moral upbringing for the children?
- Is there evidence such as pictures, video tapes, etc. that may help your case?
- Avoid unnecessary compromising photos or data on Facebook or other social networking sites.
List any other relevant issues you feel may be important to your case before you meet with an attorney.
The most important thing to remember is that your failure, if based on dated concepts and inapplicable worn out prejudices, will be her victory and your parental failure.
This is a complicated question to answer depending upon the facts of each case. If you have experienced domestic violence you need to immediately do whatever is necessary to secure you and your child’s safety. Many times a victim will go to court for a protective order and ask the judge to move the abusive or violent spouse out. In this situation contact an experienced family law attorney now!
In most cases, absent of violence or risk of abuse, we would not suggest that a spouse move out of the marital residence.
Why is this? One reason is once you have vacated the residence it may be very difficult to get back in! You have no legal obligation to leave the residence if your name is on the lease or mortgage personally and exclusivity.
Our suggestion to a client might be, to remain in the residence since the person who vacates may still have financial obligations and expenses of the family residence, while paying all expenses on a new residence for themselves. Double expenses are not a desirable result during the divorce process.
The higher wage earning spouse who moves out of the marital home must expect to continue to pay most of the household expenses, including the insurance and mortgage! What about the personal property and furnishings in the residence?
If an agreement has not been made between the divorcing couple, the moving spouse will generally only be able to leave with personal belongings (clothing & jewelry) until a court rules fairly as to temporary possession.
Secure a court order ASAP to equalize property and household expenses.
Are You An Alienated Parent With A Parental Alienation Syndrome (PAS) Family Experience? What Can You Do?
There is nothing worse than a family torn apart by parents who are battling over child custody. Many of these cases are in serious litigation and often, these disputes will continue for years.
What is Parental Alienation Syndrome (PAS)? In the 1980’s, forensic psychiatrist, Dr. Richard A. Gardner noticed a large increase in a disorder where one parent will program or brainwash a child to alienate the other parent. He also found the child was self-creating contributions supporting the alienating parent’s campaign of denigration against the targeted parent.
Dr. Gardner’s definition of PAS: Parental Alienation Syndrome (PAS) is a disorder that arises primarily 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 (brainwashing) parent’s indoctrinations and the child’s own contributions to the vilifications of the target parents. (Gardner, the Parental Alienation Syndrome)
There is no pure PAS diagnosis if the child still has a positive relationship with the parent even though the other parent is trying to alienate the child.
Courts are generally more conservative in their judgment acknowledging PAS in high conflict cases. Even though Parental Alienation evidence may be overwhelming, often courts will enter judgments allowing the “parents to make joint decisions about the child’s welfare.” This will not ever happen between two alienated parents! In many situations it will take a dramatic or tragic situation to force the court to change primary custody. When the alienating parent becomes unstable mentally, the court will recognize that there is something “out of line” and will become more supportive of the targeted parent.
What are the Best ways for the Alienated Parent to Deal with the PAS issue?
Keep your “cool”. Never retaliate. Never act in anger since anger=unstable.
Never give up! You cannot let your child grow up in this environment of hate. The child is the victim of a situation that he/she never asked to be in.
Be “Proactive”! It is a terrible situation for the entire family, but work on seeking constructive action to solve the problem. Do not allow yourself to become a victim!
Always keep a journal of dates and times of major key events. Explain when the situation occurred and what happened specifically. Any Witnesses?
Always call and show to pick up the child even when you know he/she will not be there. Try to contact the police to have a record of the no-show event or take a witness to video the denial of possession. You do have an interest in your child, no matter what the alienating parent says.
When you do see the child, focus on enjoying your parent-child time together. Never talk badly about the other parent and do not let children overhear inappropriate conversation on the telephone.
Hire a skilled family lawyer who has experience in parental alienation syndrome issues. Do your homework on PAS and interview the lawyer on his experience and what your issues are. If you are not satisfied look again. This is your life and you are trying to save your child.
Be prepared to financially see this case to the end. Most of these case last for years. You cannot start and stop.
A forensic evaluator in PAS cases is usually an asset in showing that there is truly alienation occurring and recommend changing legal and primary custody to the alienated parent. An appropriate parenting plan included showing how well the child will be taken care of with the alienated parent, is advised.
Always pay your child support on time and never violate court orders. Never give the alienating parent reason to question your behavior.
Last but not least, to show that your parenting skills are superior, take a comprehensive parenting course to be able to show the court that you strive to be the best parent you can to the child, no matter what the alienating parent says.