6
May
2013

What about a Texas Father’s Summer Visitation? The Standard Child Possession Order – Texas Family Code

When parents are battling over divorce issues and child custody, they often times do not understand that the Texas Family Code has expanded the standard child possession order to make joint managing conservators with more equal rights and duties and possession of the child. It is important to keep in mind that, under certain circumstances, and depending on the age of a child, a judge may alter the standard possession order in any way that serves the best interest of the child.

The following is an example of a standard possession order for a parent who lives within 100 miles of their child under the Texas Family Code.

IT IS ORDERED that the conservators shall have possession of the child at times mutually agreed to in advance by the parties, and, in the absence of mutual agreement, it is ORDERED that the conservators shall have possession of the child under the specified terms set out in this Standard Possession Order.

PARENTS WHO RESIDE UNDER 100 MILES APART:

Except as otherwise explicitly provided in this Standard Possession Order, when Possessory Conservator resides 100 miles or less from the primary residence of the child, Possessory Conservator shall have the right to possession of the child as follows:

3. Weekends—
Weekends that do not occur during the regular school term, beginning at 6:00 p.m. on the first, third, and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday.

2. Extended Summer Possession by Possessory Conservator—

With Written Notice by April 1—If Possessory Conservator gives Managing Conservator written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, Possessory Conservator shall have possession of the child for thirty days beginning no earlier than the day after the child’s school is dismissed for the summer vacation and ending no later than seven days before school resumes at the end of the summer vacation in that year, to be exercised in no more than two separate periods of at least seven consecutive days each, as specified in the written notice, provided that the period or periods of extended summer possession do not interfere with Father’s Day Weekend. These periods of possession shall begin and end at 6:00 p.m.

Without Written Notice by April 1—If Possessory Conservator does not give Managing Conservator written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, Possessory Conservator shall have possession of the child for thirty consecutive days in that year beginning at 6:00 p.m. on July 1 and ending at 6:00 p.m. on July 31.

Notwithstanding the Thursday periods of possession during the regular school term and the weekend periods of possession ORDERED for Possessory Conservator, it is explicitly ORDERED that Managing Conservator shall have a superior right of possession of the child as follows:

2. Summer Weekend Possession by Managing Conservator—If Managing Conservator gives Possessory Conservator written notice by April 15 of a year, Managing Conservator shall have possession of the child on any one weekend beginning at 6:00 p.m. on Friday and ending at 6:00 p.m. on the following Sunday during any one period of the extended summer possession by Possessory Conservator in that year, provided that Managing Conservator picks up the child from Possessory Conservator and returns the child to that same place and that the weekend so designated does not interfere with Father’s Day Weekend.

3. Extended Summer Possession by Managing Conservator—If Managing Conservator gives Possessory Conservator written notice by April 15 of a year or gives Possessory Conservator fourteen days’ written notice on or after April 16 of a year, Managing Conservator may designate one weekend beginning no earlier than the day after the child’s school is dismissed for the summer vacation and ending no later than seven days before school resumes at the end of the summer vacation, during which an otherwise scheduled weekend period of possession by Possessory Conservator shall not take place in that year, provided that the weekend so designated does not interfere with Possessory Conservator’s period or periods of extended summer possession or with Father’s Day Weekend.

PARENTS WHO RESIDE OVER 100 MILES APART:

If the possessory conservator resides more than 100 miles from the residence of the child, the possessory conservator shall have the right to possession of the child as follows:

1. Summer Possession:

(A) Gives the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 42 days beginning not earlier than the day after the child’s school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, to be exercised in not more than two separate periods of at least seven consecutive days each with each period of possession beginning and ending at 6 p.m. on each applicable day; or

(B) Does not give the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 42 consecutive days beginning at 6 p.m. on June 15 and ending at 6 p.m. on July 27;

2. If the managing conservator gives the possessory conservator written notice by April 15 of each year the managing conservator shall have possession of the child on one weekend beginning Friday at 6 p.m. and ending at 6 p.m. on the following Sunday during one period of possession by the possessory conservator under Subdivision (3), provided that if a period of possession by the possessory conservator exceeds 30 days, the managing conservatory may have possession of the child under the terms of this subdivision on two nonconsecutive weekends during that time period, and further provided that the managing conservator picks up the child from the possessory conservator and returns the child to that same place; and

3. If the managing conservatory give the possessory conservator written notice by April 15 of each year, the managing conservator may designate 21 days beginning not earlier than the day after the child’s school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, to be exercised in not more than two separate periods of at least seven consecutive days each with each period of possession beginning and ending at 6 p.m. on each applicable day, during which the possessory conservator may not have possession of the child, provided that the period or periods so designated do not interfere with the possessory conservator’s period or periods of extended summer possession or with Father’s Day if the possessory conservator is the father of the child.

Holidays Unaffected by Distance

Notwithstanding the weekend and Thursday periods of possession of Possessory Conservator, Managing Conservator and Possessory Conservator shall have the right to possession of the child as follows:

Father’s Day Weekend—Father shall have the right to possession of the child each year, beginning at 6:00 p.m. on the Friday preceding Father’s Day and ending at 6:00 p.m. on Father’s Day, provided that if Father is not otherwise entitled under this Standard Possession Order to present possession of the child, he shall pick up the child from the other conservator’s residence and return the child to that same place.

General Terms and Conditions
Except as otherwise explicitly provided in this Standard Possession Order, the terms and conditions of possession of the child that apply regardless of the distance between the residence of a parent and the child are as follows:

1. Surrender of Child by Managing Conservator—Managing Conservator is ORDERED to surrender the child to Possessory Conservator at the beginning of each period of Possessory Conservator’s possession at the residence of Managing Conservator.

If a period of possession by Possessory Conservator begins at the time the child’s school is regularly dismissed, Managing Conservator is ORDERED to surrender the child to Possessory Conservator at the beginning of each such period of possession at the school in which the child is enrolled. If the child is not in school, Possessory Conservator shall pick up the child at the residence of Managing Conservator at 6:00 p.m., and Managing Conservator is ORDERED to surrender the child to Possessory Conservator at the residence of Managing Conservator at 6:00 p.m. under these circumstances.

2. Surrender of Child by Possessory Conservator—Possessory Conservator is ORDERED to surrender the child to Managing Conservator at the residence of Managing Conservator at the end of each period of possession.

3. Return of Child by Possessory Conservator—Possessory Conservator is ORDERED to return the child to the residence of Managing Conservator at the end of each period of possession. However, it is ORDERED that, if Managing Conservator and Possessory Conservator live in the same county at the time of rendition of this order, Possessory Conservator’s county of residence remains the same after rendition of this order, and Managing Conservator’s county of residence changes, effective on the date of the change of residence by Managing Conservator, Possessory Conservator shall surrender the child to Managing Conservator at the residence of Possessory Conservator at the end of each period of possession.

If a period of possession by Possessory Conservator ends at the time the child’s school resumes, Possessory Conservator is ORDERED to surrender the child to Managing Conservator at the end of each such period of possession at the school in which the child is enrolled or, if the child is not in school, at the residence of Managing Conservator at [address].

4. Surrender of Child by Possessory Conservator—Possessory Conservator is ORDERED to surrender the child to Managing Conservator, if the child is in Possessory Conservator’s possession or subject to Possessory Conservator’s control, at the beginning of each period of Managing Conservator’s exclusive periods of possession, at the place designated in this Standard Possession Order.

5. Return of Child by Managing Conservator—Managing Conservator is ORDERED to return the child to Possessory Conservator, if Possessory Conservator is entitled to possession of the child, at the end of each of Managing Conservator’s exclusive periods of possession, at the place designated in this Standard Possession Order.

6. Personal Effects—each conservator is ORDERED to return with the child the personal effects that the child brought at the beginning of the period of possession.

7. Designation of Competent Adult—each conservator may designate any competent adult to pick up and return the child, as applicable. IT IS ORDERED that a conservator or a designated competent adult be present when the child is picked up or returned.

8. Inability to Exercise Possession—each conservator is ORDERED to give notice to the person in possession of the child on each occasion that the conservator will be unable to exercise that conservator’s right of possession for any specified period.

9. Written Notice—written notice shall be deemed to have been timely made if received or postmarked before or at the time that notice is due.

10. Notice to School and Managing Conservator—If Possessory Conservator’s time of possession of the child ends at the time school resumes and for any reason the child is not or will not be returned to school, Possessory Conservator shall immediately notify the school and Managing Conservator that the child will not be or has not been returned to school.
Again, a Judge may under varied circumstances change any provision of a Standard Possession Order.

16
Feb
2013

For Richer or Poorer, Hire Expert Help to Protect Your Interests in Your Texas Divorce

For better or worse,
For richer or poorer,
Until . . . a divorce is filed.

When there are several zeros at the end of your bank balance, as in $500,000.00; $5,000,000.00 or more, the financial aspects of divorce can be high risk.

Texas divorce laws are the same regarding the division of property whether the money and assets in a marital estate are a lot or a little; however, the courts will inevitably encounter and address more complex issues regarding the property division in a divorce case with substantial financial and business assets.

Texas is a community property state. What does that mean, as a practical matter, when divorce occurs?

1. The law presumes that all property owned by either spouse is community property, meaning that both spouses own an undivided one-half interest.
2. The court cannot divest a spouse of his or her separate property in divorce.

In a very simple explanation: Texas community property is everything earned or acquired during the marriage other than inheritances or gifts. Your paycheck is community property, your rental income is community property, the cars you purchase are community property, retirement funds accumulated during marriage are community property.

At the time of the divorce, the court will make a just and right division of the community property. “Just and right” does not mean 50/50. Often the courts will split the community property equally, but many factors may affect this division including:

1. The spouses’ earning abilities and education.
2. The spouses’ actual earnings.
3. Who has care and primary custody of the children.
4. The value of separate property owned by the spouses. If the wife inherited $3,000,000.00, should the husband be awarded more of the community property?
5. Fault in the break up of the marriage, especially if a cheating spouse spent substantial assets dating or cavorting with others.
6. The debts of the spouses.
7. Tax consequences.

The bigger the marital pocketbook, the bigger the risk to assets in play.

Texas Child Support and High Asset Divorces:

The court also has discretion in setting child support when the parents are wealthy. The Texas Family Code provides guidelines and the guidelines are presumably in the best interest of the child.

The law caps the Texas child support amount guidelines to a percentage of the first $7,500.00 of the paying parent’s earnings. However, the cap is not made of steel. The law is a guideline.

The court has the discretion to order child support in excess of the guidelines based on the children’s best interest which includes an examination of the proven needs of the children. In the case of children growing up in a high-income household, do not expect the court to necessarily limit its consideration to basic food and shelter. The court may consider many factors in setting child support, including the children’s current living standards, such as private education, nannies, medical issues, emotional issues, sports and other extracurricular activities and, in the rare case, a body guard.

When setting child support within a wealthy family undergoing divorce, the court has discretion, based on the evidence, to set order child support above the presumptive amount in the guidelines. The court’s determination is subjective and is reversed by higher courts only if the trial court “abused its discretion,” a high threshold indeed.

With so much at stake, you should hire an experienced family law attorney who can present your case clearly, and persuasively.

18
Jan
2013

What Are Your Father’s Rights In Texas?

Are you the father of a child in Texas and Mom is refusing to let you see or communicate with your child? Are you paying child support in Texas for your child, yet Mom tries to dominate all interaction between you and the child to suit her needs. Is this Parental Alienation in the present or a step commencing down that path?

Fathers have rights in Texas and because this is one of the more frequent calls we receive from Dads, I thought it was time to discuss some specific law from the Texas Family Code regarding the rights and duties afforded to a Parent, whether Mom or Dad!

Under the Texas Family Code a “Parent” is defined as the mother, a man presumed to be the father, a man legally determined to be the father, a man who has been adjudicated to be the father by a court of competent jurisdiction, a man who acknowledged his paternity under applicable law or an adoptive mother or father.

Tex. Fam. Code Sec. 160, otherwise known as the Uniform Parentage Act, states that a man is presumed to be the father of a child if:

1. he is married to the mother of the child and the child is born during the marriage;

2. he is married to the mother of the child and the child is born before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;

3. he married the mother of the child before the birth of the child in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;

4. he married the mother of the child after the birth of the child in apparent compliance with law, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child, and:

a)the assertion is in a record filed with the bureau of vital statistics;
b) he is voluntarily named as the child’s father; or
c) he promised in a record to support the child as his own; or

5. during the first two years of the child’s life, he continuously resided in the household in which the child resided and he represented to others that the child was his own.

If the above applies to you and you have established legal standing to support that you are “the father,” what are your rights and duties as the Texas Family Code Sec. 151.001 states:
§ 151.001. Rights and Duties of Parent

(a) A parent of a child has the following rights and duties:

(1) the right to have physical possession, to direct the moral and religious training, and to designate the residence of the child;

(2) the duty of care, control, protection, and reasonable discipline of the child;

(3) the duty to support the child, including providing the child with clothing, food, shelter, medical and dental care, and education;

(4) the duty, except when a guardian of the child’s estate has been appointed, to manage the estate of the child, including the right as an agent of the child to act in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government;

(5) except as provided by Section 264.0111, the right to the services and earnings of the child;

(6) the right to consent to the child’s marriage, enlistment in the armed forces of the United States, medical and dental care, and psychiatric, psychological, and surgical treatment;

(7) the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;

(8) the right to receive and give receipt for payments for the support of the child and to hold or disburse funds for the benefit of the child;

(9) the right to inherit from and through the child;

(10) the right to make decisions concerning the child’s education; and

(11) any other right or duty existing between a parent and child by virtue of law.

Both parents have these rights unless a court order has created, modified, ordered, or delegated the statuary rights of a parent. The rights you have will support and empower you in a hands on relationship with your child.

All parents have the right to have a relationship with their children! One misguided parent may attempt to employ parental alienation to hurt the other parent and cause the child to be denied a loving relationship with the other parent. Know your rights and contact an attorney who can help you and your child fulfill a meaningful relationship!

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