custodial parent

Nov
11

When the Custodial Parent Dies – Who Will Have Custody of the Child?

When the custodial parent of a child dies, in the state of Texas, not only is the child and family union devastated, but now is presented the difficult issue of who will become the child’s guardian.  Who are the possible candidates that may be legal guardians?

  • Non- Custodial parent, if paternity is acknowledged
  • Grandparents
  • Other relatives
  • Godparents, Family friends, Neighbors
  • State Foster System 

Usually, the surviving non-custodial parent will have an automatic right to custody of the child. Texas law favors a child having a solid relationship with both parents and in the event of death, the living parent will take over permanent exclusive custody of the child.   What factors should be considered in the child’s best interest that could determine custody by the surviving parent if he/she is not appropriate for the child? 

  • Did the court, after the divorce, terminate your parental rights in a legal proceeding? If the non- custodial parent had legally been terminated of his/her parental rights this is binding and the terminated parent WOULD NOT be granted permanent custody of the child. 
  • What if the custodial parent remarried and the new stepparent legally adopted the child? If the child was legally adopted by the stepparent and the non-custodial parent had waived their parental rights, the stepparent would be granted permanent custody of the child.
  • What if the non-custodial parent has acknowledged parentage, but paternity has not been established? To be entitled to custody of the child, the father would first claim parental rights through paternity testing to determine if he is the biological father of the child or if he has signed the child’s birth certificate. After Paternity is established, a separate legal proceeding may need to be initiated to override the terms of the mother’s will. 
  • What if the Custodial Parent created a will that stated the grandparents/godparents would take over as the legal Guardians of the child in the event of death? Many parents will request a particular person or group, such as grandparents, relatives, or godparents to become guardians for their minor children in the case of their demise, but a child is not a piece of property to give away to others when the other biological parent is living.  The judge will view what is in the best interest of the child and will always first look at the surviving parent. If this parent meets basic standards the child will live with this parent. If the surviving parent cannot serve the child’s best interest, then the judge will consider the guardian designated in the deceased parent will.  

Nacol Law Firm P.C. 
tel: 972-690-3333

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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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Child Visitation Cannot Be Denied To Texas Fathers Because Child Support Is Unpaid

TEXAS Family Code 154.011: SUPPORT NOT CONDITIONED ON POSSESSION OR ACCESS.

A COURT MAY NOT RENDER AN ORDER THAT CONDITIONS THE PAYMENT OF CHILD SUPPORT ON WHETHER A MANAGING CONSERVATOR ALLOWS A POSSESSORY CONSERVATOR TO HAVE POSSESSION OF OR ACCESS TO A CHILD.

Added by Acts 1995, 74th Leg., Ch. 751, Sec. 40, eff.  Sept. 1, 1995.

A Custodial Parent cannot refuse or cut back on visitation of a non-custodial parent just because child support has not been paid. Many custodial parents use denial of visitation as an effective way of getting child support paid.  Such conduct is against the law and punishable by contempt.

A child has an absolute right to visitation and child support.  Absent compelling reasons, visitation with both parents is always considered in the best interest of the child. Non-payment of child support should be dealt with and enforced in a proper court.  The non-custodial parent is still very important to the child’s life and must be allowed to participate in her/his life.

Conversely, a non-custodial parent cannot stop paying child support just because a custodial parent is denying visitation.

This is very important! This is Texas law!  Unpaid Child Support and Visitation with a child are two separate and distinct duties indigent of one another.  The non-custodial parent cannot be denied visitation for unpaid child support.  Do not take the law into your own hands unless you are willing to suffer the consequences and possible wrath of a Judge!

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Parental Alienation And False & Malicious Domestic Violence Allegations

Parental Alienation Syndrome (PAS) is a generally recognized platform that may result in child abuse. This occurs when a custodial parent of a child from a separated family uses deception to deliberately alienate children from their non custodial parent.

Misplaced Domestic Violence Restraining and Protective Orders are an excellent tool to advance the Alienating Parent’s malice! Misguided Protective Orders of a Court based on such false representations may remove the Accused Abuser Parent from the home, bar the Accused Abuser from seeing his/her children and give the Alienating Parent total physical custody of the children. The Accused Abuser Parent is now effectively “Guilty Until Proven Innocent”.

Once the Alienator obtains a Restraining Order through false domestic violence allegations, the Accused Abuser Parent may find it difficult to defend himself or herself against the false allegations.  This sends the implied message to the children that “Daddy/Mommy” is bad or dangerous, stamped by the court.

The Accused Abuser Parent may only see his/her children in a cold and uninviting supervised visitation setting. Supervised Visitation Centers are facilities where a child is taken to meet with the Accused Abuser Parent in a third party monitored location.  A third party observes the Accused Abuser Parent during their visit with their children so that the child is “protected” at all times.

Often the supervised visit is demeaning for the visiting parent in the eyes of his/her child.  The impression to the child that “Daddy or Mommy” is dangerous comes across loud and clear since most children only see lock up situations on TV and these people are seriously viewed as being bad.

Many Alienating Parents use this scary situation to encourage their child not to see the Accused Abuser Parent at all. The more time a child is out of contact with the Alienated Parent the deeper the scaring and recovery period for that child.

Dr. Richard A. Gardner coined the term “Parental Alienation Syndrome” (PAS) in 1985. Dr. Gardner found that a child subjected to continual negativity and manipulation by the Custodial Parent over an extended period of time against the other parent would eventually adapt the distorted view presented. At the end of the day, what the Alienating Parent fails to understand is that his/her selfishness makes his/her child the “victim” who pays a hefty price in lost self esteem.

Unfortunately, False Domestic Violence Allegations have become more common in Divorce / Child Custody Proceedings. Most Judges usually enter a restraining or protective order for the safety of the child and in too many cases an Accused Abuser Parent is guilty until proven innocent!

By Nacol Law Firm | Parent Alienation
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Father’s Rights – Visitation Enforcement

What is needed for visitation enforcement?

  1. A valid court order that has been signed by a judge or issued by the district clerk’s office, certified as having been signed by a judge.
  2. Be sure to read your order thoroughly.  If you do not understand any of the provisions, take it to an attorney and have them explain it to you.
  3. The custodial parent must have been validly served with the court order or it must be shown that the they had prior knowledge of the court order and its content.
  4. The custodial parent must have full knowledge of the above two factors and must be intentionally and willfully violating the court order.

Despite the fact that you may have a valid court order, many police departments do not want to get involved in enforcing civil orders.  If you call the police department and show them the order they may or may not assist you in gaining access to your children.  Despite whether you get your children or not, you need to ask them to create a police report stating that you were there to pick up your children and noting the time and date you were present.  If the police refuse to prepare a report, go to a local grocery store or fast food restaurant and purchase something so that you have a receipt stating that you were in the area and stating the date and time you were there.

How to prove a denial of visitation.

Take a witness along with you – preferably an off-duty constable or deputy or neutral party.   Have your witness stay in the vehicle, but with the window down so that he/she can hear any conversations that take place.  Have your vehicle parked in such a way that the witness can see you at all times.

Take a copy of your divorce decree along with you which shows you are suppose to have possession of your children on the date and time you arrive to pick them up.

Always be on time, and if possible a few minutes early.

If the custodial parent does not answer the door or have the child available to exercise visitation then call the police and request a Police Incident Report.  If the police will not issue a police report then make sure you document the incident as best as possible.  After two or three violations, take the reports, along with any witness statements, to an attorney to discuss how to bring an enforcement action against the custodial parent who is violating the order.

Take a tape recorder with you, have it running from the time you approach the residence, and do not stop it until you leave.  Keep the tape recorder running as you leave the area.

As you approach the residence state the following facts in the recorder:  your complete name, the address you are approaching, the reason you are there “I am going to pick up my children as stated in the final decree,” state who is with you and why, state the time of day, state when you are leaving and a brief description of what occurred.  Keep a written record of each recording and label them according to date.

Keep a calendar of each denied visitation.

Make sure you have a credible witness each time you try to exercise your possession with your children.

Do not argue with your exhibit-spouse regardless of how angry you are or whether you get your children or not.  Staying calm will work in your favor in the long run.

If you file an enforcement action, if the custodial parent continues to deny you visitation after the suit is brought, continue to go and knock on the door to exercise your visitation, as each separate violation of the court order can be used in the enforcement action.

By Nacol Law Firm | Possession of Children
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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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