3
Mar
2010

Supervised Visitation in Texas – Part 1

Former spouses often use informal visitation arrangements as an opportunity to assault, harass, stalk, and emotional abuse their children and former partners.  In addition, some parents will use their children as a means to hurt the other parent by denying access to the child(ren) even though such access has been ordered by the court, i.e. failing to be at home during scheduled visitation periods, failing to bring the child(ren) to a scheduled location for the other parent to exercise their court ordered visitation, faking illness, etc.

Supervised visitation takes place between the non-custodial parent and his or her child(ren) in the presence of a third party who observes the visit to ensure the child’s physical and emotional safety.  Though sometimes reasonably and successfully ordered, visits voluntarily supervised by friends and family in their homes can be fraught with danger for the child and parent, as well as the monitor, especially in cases of domestic violence.  Family members may trust the parent whose visits are being supervised and therefore may not take proper or sufficient measures to assure the child(ren) are watched or monitored at all times during the visit. 

Consequently, when supervision is indicated, possession/visitation supervised by a neutral third party with the capacity to enforce effective safety measures is normally ordered and enforced by the courts.  The expenses of such supervision are often excessive and may in themselves create a detriment to possession by a parent.  Such agencies may also provide reports and recommendations to the court based on the success or failure of the supervised visits.  Such recommendations assist the courts in making informed decisions regarding supervision and whether continued supervision in the best interest of the child(ren).

If supervised visitation is requested, some type of compelling reason and evidence, based on the circumstances surrounding the child(ren) must normally be established.  Such evidence may include denial of access, drug addiction, mental or physical abuse, neglect, or severe mental illness of a parent.  The following is a potential list of acts and/or circumstances that may be considered contrary to a child’s best interest.

• Violence or physical endangerment – A noncustodial parent may be denied visitation rights if the parent has abused the child or threatened physical violence.
• Emotional harm – Where sufficient proof is offered of potential emotional harm or that standard visitation has detrimentally affected a child’s welfare, supervised visitation may be ordered.
• Child’s wishes – A court may consider the child’s wishes as to visitation.  The weight given to a child’s preference is dependent on the child’s age, emotional stability, maturity and motives.
• Abduction – There must be a showing that there is a strong imminent probability of abduction to limit visitation on this basis.
• Substance abuse – A parent who abuses drugs or alcohol may be ordered to supervised visitation restrictions if the conduct endangers the child or if the parent uses abusive language and/or mistreats the child.
• Mental illness –Mental incapacity may be a reason for supervised visitation only if it is determined by the court that there is a reasonable potential for harm to the child due to such mental illness.
• Sexual behavior – Courts rarely deny visitation solely on the basis of a non-marital heterosexual relationship.  Courts will, however, cancel overnight visitation by a child with a parent because of the parent’s cohabitation on a showing of an adverse and material negative impact on the child.
• Incarceration – Visitations due to incarceration may be suspended only on a showing that such visits are detrimental to the child.

To have more of your questions answered on supervised visitation in Texas, or for answers to any other Texas child custody concerns you may have, call  Dallas Divorce attorney Mark Nacol of the Nacol Law Firm P.C.

15
Feb
2010

Texas and Federal Confidentiality Laws – Use Caution with Your Texas Divorce

There are many legal and proper ways to obtain proof of a spouse’s infidelity.  Take care to avoid tactics used to obtain private information that may violate federal and Texas confidentiality laws and a spouse’s right to privacy.  You may be tempted by others to obtain proof of a partner’s infidelity by various inappropriate and/or illegal methods.  Reading emails, recording telephone calls, installing spyware or geographical tracking devices or even setting up hidden cameras are just a few methods a spouse may be offered when entertaining the thought of catching a cheating spouse.  However, such actions may expose both parties and their attorney to civil liability and possible criminal penalties.  Under Texas law, it is a crime to install a geographical tracking device on a vehicle owned by another person.  When emotions are running high, it is imperative that you seek proper counsel as to the proper legal action to be taken when establishing facts.

Both federal and state wiretapping laws apply to divorcing spouses.  A spouse may sue the other spouse or their agents for invasion of privacy.  Federal law regulates electronic surveillance of conversations and access to emails, faxes and voicemail.  The law imposes civil and criminal sanctions for intentional interceptions of electronic communications.  However, accessing email after it has been transmitted, i.e. downloading a text from your telephone or email from the hard drive of a family computer, is not an offense under the Federal Act.  Texas has laws that also prohibit the interception of communications.  Under such laws, counsel may also be held liable if they disclose information received from the intercepted communications provided by their clients.

Federal and Texas laws both allow recording of telephone calls and other electronic communications with the consent of at least one party to the communication.  Under the one-party consent statutes, a spouse may record conversations in which he or she is participating.  This has been extended to include parental recording of a child’s conversations with a third party, including the other parent.  The parent can consent to the recording on behalf of the child so long as the parent has a good faith objective and a reasonable belief that it is in the best interest of the child, even if the child is unaware of the recording.

It is important that a spouse take great care in their means and methods of gathering information.  Information obtained by illegal means can expose one, even if he or she is a spouse, to civil liabilities and possible criminal prosecution.  Texas recognizes that every person has a certain right to privacy.  Such right is violated if a person intentionally intrudes upon the private affairs of another by offensive means.  Accessing stored email or secretly recording a spouse can be a violation of a spouse’s right to privacy.  If a suit is filed, the damaged spouse may recover monetary damages, including punitive damages.

For answers to your questions on gathering information for your Texas Divorce, contact Dallas fathers rights attorney Mark Nacol with the Nacol Law Firm, P.C.

20
Oct
2009

Divorce: What is separate property and what is community property?

Under the Texas Family Code, a spouses separate property consists of 1) the property owned or claimed by the spouse before marriage; 2) the property acquired by the spouse during marriage by gift, devise, or descent, and 3) the recovery for personal injuries sustained by the 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 mean 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.

In 1917 the Legislature defined and income from separate property to be the separate property of the owner spouse.  In Arnold v. Leonard, 114 Tex. 535,273 S.W. 799 (1925), the Supreme Court held that the Legislature did not have the constitutional authority to characterize the income from separate property as the owner’s separate property.  The court explained that the Legislature’s authority was limited to enacting laws regulating the management and liability of marital property, not its separate or community character.  This decision strengthened the constitutional principal that the Legislature may not define what is community and separate property in a manner inconsistent with Article 16, Section 15 of the Texas Constitution.

There are numerous means by which separate property may be acquired in defiance of Article 16, Section 15, a partial list includes mutations of separate property, increases in value of separate land and personality, recovery for personal injury not measured by loss of earning power, improvements of separate land with an unascertainable amount of community funds, and United States Securities purchased with community funds.

Although such property may undergo changes or mutations, as long as it is traced and properly identified it will remain separate property.

The Texas Family Code defines community property as follows:  “community property consists of the property, other than separate property, acquired by either spouse during 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 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.