Fathers Rights Blogs

Aug
22

Child Support Modification in Texas – Done Within Three Years

Child support is one of the most heavily litigated issues in all of family law. To increase or decrease payments there are specific requirements that must be met to modify a previous child support order. Per Tex. Fam. Code § 156.401 the requirements necessary to modify a prior child support order are:

  1. The circumstances of the child or an affected party have materially and substantially changed; or
  2. Three years have elapsed since the order was entered or last modified, and the amount of child support differs from the statutory guidelines by either 20% or $100.00.

The second requirement is self-explanatory. The three-year limitation to file for another modification is for the benefits of the Courts. If there was no three-year waiting period to refill, then every conservator would constantly attempt to modify child support, thus creating endless litigation for clogging the Courts’ dockets.

The first requirement needs more explanation. A Material and Substantial change in the circumstances of the child or an affected party must be clearly shown at trial. Many Courts are meticulous in making the determination of what a Material and Substantial change is regarding the child and the affected party to insure this requirement is not abused for excessive litigation.

To prove a Substantial and Material change in circumstances, a conservator must show evidence at the final hearing of:

  1. The financial needs/expenses at the time of the divorce or prior modification for the children and the person affected, and;
  2. The financial needs/expenses at the time of the request for the modification.

If evidence of financial needs/expenses are not submitted and proved regarding both (1) the prior divorce/modification and (2) the recent modification, then no Substantial and Material change can be adequately proved. Further, if the request for modification of child support is predicated solely on one conservator’s increase in earning capacity, absent other compelling evidence, the change in circumstances is not Substantial and Material. Interest of L.R., 416 S.W.3d 675, (Tex. App.—Houston [14 Dist.] 2013, pet. denied.)

If one conservator decides to file a modification of child support within three years just because the other conservative received a better job, it may be dismissed. At the end of the day a Court has broad discretion on determining what is Substantial and Material and may allow the case to be heard and give an unfavourable ruling, but if that occurs you will have the ability to appeal the judgment and request attorney’s fees. It is important to know in any family law case the Judge has extremely broad discretion and interprets case law in a way that he deems fit using the Best Interest Test.

If you are a conservator that meet these requirements above and wish to increase or decrease the child support obligation, be sure to hire an experienced attorney. Nacol Law Firm will always fight for you and your children’s best interest.

Julian Nacol, Attorney
Nacol Law Firm, PC
Call (972) 690-3333

DETAIL
Jul
29

Fathers and Parent Alienation Syndrome

One in three children lose touch with a parent, usually the father, following a divorce.  In a recent survey, one in five parents stated that their primary objective during the divorce was to make the experience as unpleasant as possible for the former spouse; despite the effects such attitudes and behavior have on the children.  One in three children stated that they felt isolated and lonely during and following the divorce process.

Parental Alienation Syndrome is the systematic denigration by one parent with the intent of alienating the child against the other parent.  In most cases, the purpose of the alienation is to gain custody of a child and exclude involvement by the father.  In other cases the mother wants the father out of the way to start a new life, the mother wants more of the money and assets than she is entitled to and uses the children as pawns.  The mother hates the father and the children become false weapons.  These are just a few reason Parental Alienation occurs in domestic disputes.

Parental Alienation Syndrome is common because it is an effective device for gaining custody of a child.  Trough systematic alienation, one parent may slowly brainwash a child against the other parent.  The parent involved in such alienation behaviors then gains misplaced loyalty of the child.

There are two types of Parental Alienation Syndrome, medical and legal.  Medical Parental Alienation Syndrome is a form of emotional child abuse.  Parents in hostile separations may suffer depression, anger and anxiety or aggression.  The expression of these feelings often takes on a form of withdrawing love and communication.  This extends to the children through the custodial parent.  It is a mechanism employed to stop the father from having contact with his children; and can be described by the mother holding the children “hostages,” afraid of the mother, and obeying her as a means of survival.  The child may also be instilled with false memories of the father, may be coached and/or brainwashed.  Parental Alienation Syndrome is recognized by the courts but is very difficult to define and in most cases requires bringing in County Social Services, Child Protective Services, and/or other professionals.  Anyone claiming Parental Alienation Syndrome should look for family therapy as a constructive way forward.  Other forms of abuse are physical, sexual, and neglect and are much easier to identify.

It is important no matter how bad the alienation becomes that you strategize to create a line of contact with your children, the mother and anyone connected to them.  Having a plan is critical.  When a father loses contact with his children he goes from disbelief, to despair, anger, depression, confusion and a total sense of social injustice.  Having a plan means looking at the situation logically, rather than emotionally.

1.  The first stage is to look for direct contact with the mother and children. Can you meet, write, or phone?
2.  If you are not allowed contact, can a relative contact the mother or children on your behalf?
3.  Can you contact your children through church, school, clubs, sports activities, or daycare?
4.  Can you participate in your children’s activities?
5.  Do you have a non-suggestive witness that can go with you when you exercise your visitation rights?
6.  Is there a local grocery store where you can purchase something to have a receipt stating the date and time you were in the area?
7.  Will the police make a report stating that you attempted to exercise your visitation?
8.  Whenever possible take video and pictures.

In cases of Parental Alienation Syndrome it is important that you document everything.  Keep a diary or timeline.  Write important events down on a calendar.

If you are a victim of Parental Alienation Syndrome, contact an attorney. Discuss your options.  Formulate a plan to move forward.  Do not give up your parental rights as a father.

By Nacol Law Firm | Parent Alienation
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Jul
21

Supervised Visitation Orders – How Texas Fathers can Return to a Standard Possession Order

I Have Been Ordered, Right or Wrong, Supervised Visitation with My Child –

How Do I Return to a Standard Possession Order?

In a perfect world, parents going through the divorce process work together for the best interest of their child(ren) and are granted possession of the child(ren) approximately fifty (+ or -) percent of the time.  However, issues such as severe parental alienation, drug addiction, mental or physical abuse, neglect, and severe mental illness may force a parent to petition the courts to order limited or supervised visitation.  On some occasions, a parent is regrettably ordered into supervised visitation due to false, inaccurate or misleading information.  Regardless of the circumstances, court ordered supervised visitation is costly, may substantially limit the amount of time a parent is allowed to spend with their child, and can create a difficult and costly transition into a standard possession order.

If the court has ordered supervised visitation seek proper counsel from a qualified attorney as soon as possible.  If a case, rightly or wrongly, has been established for supervised visitation by the evidence or circumstances or court order, you will need to build a case for reinstatement of standard or standard expanded possession as soon as possible.

During a supervised visit it is imperative that you keep any comments on the case to yourself. Avoid giving any opinions on the existing judgment or the supervised visitation order.  Within reason, limit your conversation to what is strictly necessary for the child to have a safe, happy and healthy visit. Be polite and courteous with the monitor even if you develop strong negative feelings regarding him or her.  Continue to enforce the importance of wanting and seeing your child and spending quality time with your child as much as possible.  Never, under any circumstances speak negatively about the other parent to or in the presence of the child or the monitor.  Never, use vulgar or abusive language toward or in the presence of the child or the monitor.  The visitation monitor may be an important asset at future hearings regarding a change from supervised visitation to a standard or expanded possession order.

Make every scheduled visit without fail.  If unable to make a scheduled visit, contact the monitor as soon in advance as possible with an appropriate explanation and request an alternative date.  Bring family members whenever possible and clear it with the visitation monitor prior to their attendance.  Bring cards and gifts, not only from you but from family members.  If visits are going well request off-site visits at a nearby restaurant or park.  Though visits may be costly, the more frequently you are observed in a loving relationship with your child the better the chance of supervised visitation being suspended or terminated all together.

Involve a psychiatrist or qualified counselor in your visitation schedule if at all possible.  Such professionals are key as you begin to build your case for standard possession since they are able to make suggestions to the Court as to how visits are progressing and the manner in which standard possession can be accomplished.

If you have been ordered to have drug or alcohol testing performed, take each test as scheduled and make certain you are free of drugs and alcohol.  A positive drug or alcohol test may place you back at square one and undermine your progress.

If a social study is ordered, dispose of any prescription drugs not needed or which are out of date and put away any alcohol in your home.  Make certain your home is clean and orderly when the evaluation is performed.  In such cases, a qualified professional will come to your home and evaluate the environment as it pertains to the best interest of the child.  If you have been ordered into supervised visitation because of drugs or alcohol it is imperative that these items not be sitting around the home when a social worker is performing his/her evaluation to avoid negative results or an  invalid conclusion.

Keep your child support current at all times! If the supervised visitation is placing a financial strain on your ability to pay child support, have an attorney address modifying your child support obligation in a Motion to Modify.  It is counterproductive to request unsupervised visitation if you are not current in your financial responsibility toward your child.

Some very important tips a non-custodial parent should follow on a supervised visit:

  1. Follow the schedule of your visits to the letter.  Never cancel except for dire emergencies!

  2. Always arrive on time.

  3. Focus totally on your children.  Don’t ask about the custodial parent or exchange information or be judgmental in your comments. This is your time with your children.

  4. Have a game plan on what you will do when talking and spending time with your children. Stay open to suggestion from your children on what they would like to do with you so everyone enjoys the visit.

  5. Talk with your children about what you are doing in your life. Ask about their activities and school, but don’t press for information. Let them know that you are interested in what they care about.

  6. Always keep your word. Don’t make promises that you can’t keep!

  7. Avoid talking about the custodial parent at all times, the divorce, and any court actions.  Keep all conversations light and positive.  This is your time for your children.  Use it to reconnect and enjoy each other.

  8. Do not criticize the custodial parent or make negative comments about the supervised visitation. This is all the time you have with the children.  Love, embrace and enjoy them every moment.

  9. You may not like it, but follow the rules set forth for the supervised visitation.  Respect the process and this may help to encourage the court to change your status to unsupervised visitation.

By Nacol Law Firm | Possession of Children
DETAIL
Jul
20

Texas Fathers Rights to Establish Paternity of Children Born Out of Wedlock

In the State of Texas there is one birth statistic that continues to rise: The Birth of Out of Wedlock Children! With dropping marriage rates and increasing non-married couples living together, the percentage of children being born out of wedlock is growing yearly. The Texas Out of Wedlock Childbirth rate of 2019 stands at 41.4%. How are the fathers of these children treated? Does a father have any rights to their children? In most states, the mother of a child has 100% of the custody rights until the paternity of the father is legally established.  How does a Texas father legally establish paternity when the mother of their child refuses to allow him to sign the birth certificate and tells him that he will never have any type of communication or relationship with his child?

What are a father’s rights in the State of Texas? 
Any and every right a parent may have is available to a father who seeks them.


How does the father file for paternity of the child in Texas?

1. Paternity Registry (Family Code 160.401-2)

The Texas Paternity Registry was created in 1997 to aid men (potential fathers) who desired to be notified of a proceeding for the adoption of or the termination of parental rights regarding a child that he may have fathered. They may register with the Registry of Paternity. The purpose of the Registry of Paternity is to “protect the parental rights of fathers who affirmatively assume responsibility for their children by registering or acknowledging their children (FC Chapter160, Subchapter E). To sign up with the Registry, the father or suspected father must file a Notice of Intent to Claim Paternity before a child is born or within 31 days of the child’s birth. (see form) https://www.dshs.texas.gov/vs/field/docs/vs130(2).pdf 

Many men use this Registry when a Father and Mother do not have a continuing relationship and the man is not listed as the presumed father on the birth certificate or Acknowledgement of Paternity. 
Other Examples: 

  • Man and woman have a consensual sexual relationship for a brief time and no further contact. Man wants to make sure that if woman becomes pregnant and has a child, he wishes to assert his paternity
  • Man and woman do no agree he is the father of the child. Man wishes to assert paternity.
  • More than one man claims to be the father of the child. Each man would complete a separate Notice of Intent to Claim Paternity. 
  • Mother refuses to complete and sign the Acknowledgment of Paternity form. 

The notice of Intent Claim Paternity form will not legally establish paternity nor be used to add a man’s name to the child’s birth certificate. 


2. Alternate Means to Establish Paternity (Family Code 160.301-2 and 160.402, 160.601)

The mother of a child and a man claiming to be the biological father of the child may sign an acknowledgment of paternity with the intent to establish the man’s paternity.  
An acknowledgment of the paternity must:

  • Be in a record
  • Be signed or otherwise authenticated by the mother and the man seeking to establish paternity
  • State that the child whose paternity is being acknowledged:
    1. Does not have a presumed father or has a presumed father whose full name is stated
    2. Does not have another acknowledged or adjudicated father
  • State whether there has been genetic testing and that the acknowledging man’s claim of paternity is consistent with the results of the testing
  • State that the signatories understand that the acknowledgment is the equivalent of a judicial adjudication of the paternity of the child and that a challenge to the acknowledgment is permitted only under limited circumstances and is barred after 4 year.

A man is entitled to notice of a proceeding regardless of whether he registers with the registry of paternity if:

  • A father-child relationship between the man and the child has been established under this chapter or another law.
  • The man commences a proceeding to adjudicate his paternity before the court has terminated his parental rights.

The parentage of a child may be adjudicated in a civil proceeding by voluntary legitimation.

A Father should be proactive and enforce his rights promptly to enhance his probability of fair and equal treatment that is binding under the law!

Nacol Law Firm P.C
Walnut Glen Building
4188 Walnut Hill Lane #1190
Dallas, Texas 75231
tel: (972) 690-3333
 

By Nacol Law Firm | Paternity
DETAIL
Jul
14

Getting a Texas Divorce? Know what Marital Property is Community or Separate

In Texas, Community Property Laws apply in determining the Property Distributions to a wife and husband.  This system is employed to divide the property fairly between the divorcing couple.

What is Separate Property?  Texas Family Law Code, FAM 3.001: A spouse’s separate property consists of:

    1. The property owned or claimed by the spouse before marriage

    1. The property acquired by the spouse during marriage by gift, devise, or descent

  1. The recovery for personal injuries sustained by spouse during marriage, except any recovery for loss of earning capacity during marriage.

The terms “owned and claimed” as used in the Texas Family Code means that where the right to the property accrued before marriage the property would be separate.  Inception of title occurs when a party first has a right of claim to the property by virtue of which title is finally vested.  The existence or nonexistence of the marriage at the time of incipiency of the right of which title finally vests determines whether property is community or separate.  Inception of title occurs when a party first has a right of claim to the property.

Under Texas Constitution, Art. XVI, Section 15, separate property is defined as all property, both real and personal, of a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of that spouse; and laws shall be passed more clearly defining the rights of the spouses, in relation to separate  and community property; provided that persons about to marry and spouses, without the intention to defraud pre-existing creditors, may by written instrument from time to time partition between themselves all or part of their property, then existing or to be acquired, or exchange between themselves the community interest of one spouse or future spouse in any property for the community interest of the other spouse or future spouse in other community property then existing or to be acquired, whereupon the portion or interest set aside to each spouse shall be and constitute a part of the separate property and estate of such spouse or future spouse; spouses may also from time to time, by written instrument, agree between themselves that the income or property from all or part of the separate property then owned or which thereafter might be acquired by only one of them, shall be the separate property of that spouse; if one spouse makes a gift of property to the other that gift is presumed to include all income or property which might arise from that gift of property; and spouses may agree in writing that all or part of the separate property owned by either or both of them shall be the spouses’ community property.

What Is Community Property? Texas Family Law Code, FAM 3.002:  Community property consists of the property, other than separate property, acquired by either spouse during the marriage.

Texas Family Code, Section 3.003 states that all property possessed by either spouse during or at the dissolution of the marriage is presumed to be community property and that the degree of proof necessary to establish that property is separate property, rather than community property, is clear and convincing evidence.  Clear and convincing evidence is defined as that measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.  If property cannot be proved clearly and convincingly to be separate property, then it is deemed to be community property.

The Texas Family Code, Section 7.002, deals with quasi-community property and requires a court divide property wherever the property is situated, if 1) the property was acquired by either spouse while domiciled in another state and the property would have been community property if the spouse who acquired the property had been domiciled in Texas at the time of acquisition; or 2) property was acquired by either spouse in exchange for real or personal property and that property would have been community property if the spouse who acquired the property so exchanged had been domiciled in Texas at the time of the acquisition.

What about Property Acquired during Marriage? Property in which inception of title occurs during marriage is community property unless it is acquired in one of the following manner, in which it becomes separate property of the acquiring spouse:

    1. By gift

    1. By devise or descent

    1. By a partition or exchange agreement or premarital agreement specifying that the asset is separate

    1. As income from separate property made separate as a result of a gift, a premarital agreement or a partition and exchange agreement

    1. By survivorship

    1. In exchange for other separate property

  1. As recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.

During a divorce, it is important that both parties know what type of property is involved in the divorce and what is separate and community property. This knowledge may determine or influence what each party will receive at the end of the settlement.

By Nacol Law Firm | Property and Asset Division
DETAIL

Please contact father’s rights Dallas Attorney Mark Nacol, or father’s rights Dallas Attorney Julian Nacol with the Nacol Law Firm P.C., for legal insight to your rights as a father. Both attorney Mark Nacol, and attorney Julian Nacol , provide counsel in the area of family law including divorce, father’s rights, interstate jurisdiction, child support, child custody, visitation, paternity, parent alienation, modifications, property division, asset division and more. Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization. Our attorneys at The Nacol Law Firm P.C. serve clients throughout Texas, including Collin, Dallas, Denton, Ellis, Grayson, Kaufman, Rockwall and Tarrant counties and the communities of Addison, Allen, Arlington, Carrollton, Dallas, Fort Worth, Frisco, Garland, Grapevine, Highland Park, McKinney, Mesquite, Plano, Prosper, Richardson, Rowlett and University Park, Murphy,Wylie, Lewisville, Flower Mound, Irving, along with surrounding DFW areas.

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