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.
Texas family law states that a court may modify a child custody order if the change is in the best interest of the child and one of the following applies:
1. The circumstances of the child or parent have materially or substantially changed since the date of the original child custody order or order to be modified.
2. The child is at least 12 years of age and will tell the court in private chambers with the judge that he/she would like a change.
3. The custodial parent has voluntarily given the child’s care and custody to another person for at least 6 months.
Material or Substantial Change
What could be acceptable as a change for the Texas family courts? Some examples could be a parent’s remarriage, a medical condition the affects a parent’s ability take care of the child, a parent’s criminal acts or convictions, a parent’s change in residence that makes visitation a hardship for the other parent, family violence, drug or alcohol related issues, absence of supervision, and other material changes concerning adequate care and supervision of the child.
Child Wants Change
The child must be at least 12years of age and maybe interviewed in the judge’s chambers. The court will consider the child’s desire but only make a change if it is in the child’s best interest.
This happens when the custodial parent has voluntarily given up custody of the child to another person for at least six months. This does not apply to a period of military deployment or duty.
After finding one of the three prerequisites, the court must still consider whether the change will be in the child’s best interest. The court will consider factors affecting the child’s physical, emotional, mental, education, social, moral or disciplinary welfare and development. The factors considered for this evaluation are:
1. Child’s emotional and physical needs.
2. Parenting ability of the conservators or potential conservators
3. Plans and outside resources available to persons seeking the modification
4. Value to the child of having a relationship with both parents
5. Visitation schedule that requires excessive traveling or prevents the child from engaging in school or social activities
6. Stability of the person’s home seeking the modification
7. The child’s desires
8. Child’s need for stability and need to limit additional litigation in child custody cases.
Modification within one year of prior court order
A parent who files a motion to modify a child custody order within one year after a prior order was entered must also submit an affidavit to the court. The affidavit must contain, along with supporting facts, at least one of the following allegations:
1. The child’s present environment may be endanger the child’s physical health or significantly impair the child’s emotional development.
2. The person who has the exclusive right to designate the child’s primacy residence is the person seeking or consenting to the modification and the modification is in the child’s best interest.
3. The person who has the exclusive right to designate the child’s primary residence has voluntarily relinquished the primacy care and possession of the child for at least six months and the modification is in the child’
The New Year is always a good time for personal changes and after another stressful Holiday Season with your kids and Ex, you have decided to make some serious changes in your child custody situation to stabilize the entire family. Mom is not helping and the children are seriously acting out. What to do? What to do?
Maybe it is time to look at changing your child custody status with the children or at least modifying the current orders. Many changes have occurred in American Family Behavior and fathers are taking a more active role in their children’s lives. The Pew Research Center has recently published some new research on today’s fathers with some important and surprising changes:
Fewer dads are the family’s sole breadwinner: dual income households are now the dominant arrangement (60%). Both mom and father must now be responsible for child raising and home chores.
Dad and mom roles are converging: fathers have taken on more housework and child care duties and moms have increased time spent at a paid job. There is definitely a more equal distribution of labor between mother and fathers in today’s world.
Fathers feel they spend more or as much time with their children as their fathers did when they were children
With the latest scientific research showing that a father’s involvement is essential to a child’s social, moral, and physical growth during the adolescent period, many state legislatures and family courts are now recognizing a father’s ability to care for his children as equal to the mother. Courts are also looking at the more stable parent, who may have a better income and parenting plan in place for the child and is capable of providing a better home life and more quality time with the child.
Another reason for changing opinions regarding fathers’ rights child custody issues has been the high divorce rates and the affect it has had on the USA population life experiences. Many adults have been raised in a divorced home with Mom as the main custodial parent. Now these adults are divorcing they want a different and better experience for their own children and their lives.
Things you want to consider as you prepare for your child custody battle are:
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.
Establish a detailed viable 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 (ren) 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 (ren).
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, social networking sites, video tapes, texting, etc. that may help your case?
Avoid unnecessary compromising photos, data on social networking sites, or texting!
Just Remember the five biggest mistakes men make in a custody suits are: 1) failing to respond to the legal action itself; 2) obtaining incorrect child custody legal advice (from friends and family rather than a legal expert); 3) signing a quick child custody settlement agreement while passions are high that is later deeply regretted; 4) failing to perform under the actual settlement agreement as signed; and 5) getting frustrated and/or acquiescing to unreasonable demands and orders.
Think smart when contemplating Child Custody Modifications, be prepared and get an experienced legal professional to help you accomplish your goals!
Consider the legal consequences of Trusts regarding the characterization of marital property, especially Trusts created by separate property prior or after marriage. A Trust can be a creative and useful tool depending on the perspective and actual need of the parties. To a spouse owning substantial separate property, an irrevocable Trust may be a safe haven that will guard the separate property and potentially the income from the separate property against property divisions in a Divorce Court. On the other hand, in some cases, a spouse that has no separate property may be defrauded by the other spouse.
The Texas Courts have indicated that separate Trusts created prior to marriage, that are irrevocable spendthrift Trusts are a valid means to shelter separate property of the marriage and the income from the trusts are not subject to division during the divorce proceedings. The beneficiary of the separate Trust (the spouse with the separate trust or beneficiary of a separate trust) do not have a present possessory right to any asset within the corpus of the Trusts. If the spouse is granted a present possessory right to any portion of the trust in the trusts, then the income from the Trusts may be divided in a Divorce Court as community property.
This is an area of concern to the other spouse. If you are married to an unsavory spouse, where separate property assets owned prior to the marriage are put into an irrevocable spendthrift trust, take measure to insure no money or other property acquired during the marriage is siphoned into those separate Trusts. One spouse may siphon community property throughout the marriage into separate Trusts in order to deplete the community estate. This constitutes fraud on the community estate and the innocent spouse may seek adequate compensation.
It is important to hire an experienced attorney that understand the intricacies of Trusts and the part Trusts can play in sheltering community funds from a spouse during the marriage. Many wealthy men or women may abuse the Trust formation to defraud their spouses from fair community property allocation. Wealthy spouses may use irrevocable or discretionary Trusts created prior to the marriage for asset protection instead of using prenuptial agreements or post marriage property agreements. The case law is still not completely settled in Texas regarding irrevocable Trust as they pertain to divorce and it is important to hire an attorney that can help guide you through these complexities and insure you are not being defrauded or taken advantage of in a divorce proceeding.
The Texas Family Code defines Family Violence as an act by a member of the family or household against another member that is intended to result in physical harm, bodily injury, assault, or a threat on a family member in danger of imminent physical harm. This abuse is defined as physical injury that results in substantial harm or genuine threat of sexual, intercourse or conduct; or encouraging the child to engage in sexual conduct.
What does “family” include? Individuals related by blood or affinity, marriage or former marriage, biological parents of the same child, foster children, and members or former members of the same household (including roommates).
What about child abuse?
Some very interesting statistics:
A report of child abuse is made every ten seconds
More than four children die every day as a result of child abuse
70% of children that die from abuse are under age of 4
Child abuse occurs at every socioeconomic level within all ethnic and cultural lines and all religions and all levels of education!
Approximately 30% of abused and neglected children will later abuse their own children
Statistics re: childhelp.org
In Texas (2008 Crime in Texas.com), victims are primarily female (75%) and the offenders are primarily male (77%). The primarily weapon involved in family violence is physical force with the use of hands, feet or fists (78%).
How can you know if child abuse exists in a household?
Look for these most common child abuse indicators in children:
Injuries that are unexplained
Major and sudden changes in a child’s behavior
Return to earlier behavior: such as bed wetting, thumb sucking, and fear of dark or strangers or more serious language or memory problems
Serious fear of going home
Changes in eating or sleeping habits
Changes in school performance or attendance
Lack of personal care or hygiene
New risk taking behaviors
Inappropriate sexual behavior
If you are a family member, friend, teacher, or child-care giver of a child who has started displaying very different behaviors or showing injuries, it is imperative that you contact someone who can either help this child or prevent any more family violence from occurring in this child’s family. This child and family need help now!