The holidays are frustrating times for both spouses when undergoing divorce proceedings that involve custody issues with children. If a spouse violates a temporary custody order, he or she may not face consequences at the time but must explain their actions to a district judge in the future.
If a temporary custody order describes in detail the periods of possession during the Christmas holiday, this order will be binding on both spouses. The temporary custody order is binding civilly and NOT criminally. This is an important distinction to make before you decide to call the police. All of family law, with few exceptions such as domestic violence and protective orders, are governed within civil jurisdiction and not criminal jurisdiction. Because temporary custody orders involving children are governed within civil jurisdiction, a police officer has no grounds to enforce the order.
Now if your spouse refuses to release the child into your custody at the prescribed time mandated within the temporary custody order then there are certain things that you should do to ensure it is properly documented for future civil contempt proceedings.
- Call the police!!! Many police departments will not respond because temporary custody orders are not criminally enforceable, but if the police department decides to respond then you may request a police report to be filed, noting that your spouse deliberately violated the temporary custody order. This may be used in Court to persuade the judge to hold your spouse in civil contempt.
- Save any text messages, emails, or recorded phone calls that demonstrate your spouse’s refusal to deliver the children into your custody during Christmas.
- Call your attorney and notify him of your spouse’s refusal to deliver the children into your custody.
- Do not get into a physical confrontation with your spouse!!!
By completing these four simple tasks you will be gathering evidence to hold your spouse in civil contempt of Court. After the Christmas Holiday season is over your lawyer, with your consent, will fill a motion to hold your spouse in contempt of Court for violation of the temporary custody order. If your spouse is found in civil contempt of Court, he or she may be fined, ordered to jail until the fine is paid with certain limitations, and the violation may be a basis to modify the previous temporary custody orders. This will be at the judge’s discretion.
Though you may feel helpless at the time, justice will be done through the district Courts in the form of civil contempt. Judges usually look down on a spouse that blatantly violates a temporary custody order, especially during Christmas. Just relax and have patience if your spouse refuses to deliver the children to you, justice may take time but in the end it will be served.
With the Covid19 virus pandemic, many changes in Texas have happened with visitation issues. On March 13, 2020, the Texas Supreme Court issued an Covid19- Virus Emergency Order: divorced /single parents should go by the originally published school and visitation schedule in their current decree. This includes Holiday Visitation Schedules. The Counties of Dallas, Collin, and Denton also came out with standing orders re; exchanges relating to possession and access to children considered “an essential activity”.
Now is the time to contact the other parent to ensure that your visitation time with your child will be insured without any problems. If not, contact an attorney to make sure that the Holiday Season visitation with your child will happen happily.
Nacol Law Firm P. C.
Holidays 2020 Visitation with your child could be difficult since “Normal” life for families has changed greatly with the threat of the Covid19 Virus. Now is the time to review your Holiday Schedule for visitation with your children and we suggest you review the specific provisions of your order concerning this 2020 Holiday Visitation.
NOTICE: In Texas, March 13, 2020, the Texas Supreme Court issued an Covid19- Virus Emergency Order: divorced /single parents should go by the originally published school and visitation schedule in their current decree. This includes Holiday Visitation Schedules. The Counties of Dallas, Collin, and Denton shortly after came out with standing orders regarding Exchanges relating to possession and access to children considered “an essential activity’.
The Holiday Visitation time is the most modified area in the Standard Possession Order.
Here is a reminder of the current Texas Family Law Code’s Standard Possession Order for the Holidays.
Texas Family Law Code’s Standard Visitation Guidelines for Thanksgiving:
The possessory conservator or non-primary conservator shall have possession of the child in odd-numbered years, beginning at 6 p.m. on the day the child is dismissed from school before Thanksgiving and ending at 6 p.m. on the following Sunday, and the managing conservator shall have possession for the same period in even-numbered years; The Holiday schedule will always override the Thursday or Weekend schedules.
Texas Family Law Code’s Standard Visitation Guidelines for Christmas Break:The possessory conservator or non-primary conservator shall have possession of the child in even-numbered years beginning at 6 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and the managing conservator shall have possession for the same period in odd-numbered years;
The possessory conservator or non-primary conservator shall have possession of the child in even-numbered years beginning at noon on December 28 and ending at 6 p.m. on the day before school resumes after that vacation, and the managing conservator shall have possession for the same period in odd-numbered years; The Holiday schedule will always override the Thursday or Weekend schedules.
The Holiday Season should be a happy time for but for families split by divorce, the emotional issues from the result of the break-up on the affected family can cause the joy of the season to be overshadowed by unhappiness and despair! Children need to have structure in their Holiday Visitation schedule to ensure that they will be able to see both parents and share the joy of the season with their entire family. The children are often the ones who suffer when the Holiday Visitation arrangement goes awry.
Unfortunately, many parents, wait too long to confirm visitation plans for the upcoming holiday season and with the current Covid19 Virus Pandemic, the family situation. If you cannot reach an agreement regarding visitation or believe you may be deprived of holiday visitation by the other parent, now is the time to contact an attorney. Time is short and Courts are already starting to overload with future visitation problems for the 2020 Holiday Season
The best gift of the holiday a child can experience is an early proactive arrangement of all holiday plans so everyone knows dates and times for visitation with both Mom and Dad. This Holiday Season vow to keep your child out of the middle of any family conflict and start to develop new holiday traditions with your child and family. Many parents have new relationships/marriages and other children in the family group. The new holiday traditions should include everyone and be a bonding experience for years to come.
Call Us. We Can Help!
NACOL LAW FIRM P.C. , Dallas Family Law Attorneys (972) 690-3333
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’
A regrettable truth in family law often finds one parent unilaterally removing a child from the other parent while dissolving a marriage without any grounds or evidence of wrongdoing. Not surprisingly, disturbing numbers of children are routinely separated from loving, responsible parents for reasons that have nothing to do with their wishes, safety, health, or welfare and many times have to do with a lack of proper legal counsel.
In 50% of the marriages that end in divorce, 80% of these are over the objection of one spouse (close to 100% when children are involved). I am sure you have heard about “custody battles,” but you probably do not know that many start out with one parent taking a child from the other and refusing visitation until a court orders possession sometimes months down the line. You have heard about the witch hunt for “deadbeat dads,” but did you know that many of these fathers are well educated men who have lost their jobs due to a downtrodden economy and still love their children and want to play a leading role in their lives and upbringing. You have heard the hysteria over “child abuse,” but did you know that many accusations against fathers are shown to be false and used by one parent as a weapon to alienate the children from the other parent.
David Popenoe in his book “Life Without Father” tells us that negative consequences of fatherlessness are all around us. Evidence indicating damage to children growing up in fatherless homes has accumulated in near tidal-wave proportions. Fatherless children experience significantly more physical, emotional, and behavioral problems than do children growing up in intact families.
Children from fatherless homes are:
- 5 times more likely to commit suicide
- 32 times more likely to run away
- 20 times more likely to have behavioral disorders
- 14 times more likely to commit rape
- 9 times more likely to drop out of high school
- 10 times more likely to abuse chemical substances
- 9 times more likely to end up in a state-operated institution
- 20 times more likely to end up in prison.
(Information from Mark Hall, Father’s Manifesto).
In “My Rewar, My Punishment…My Son, Sons of Divorce,” Steven Manchester describes the situation many dads are dealing with when exercising visitation:
“I’d take my son for our court-ordered visits, only to drop him off two hours later, so another man could bounce him off his lap. Ironically, each new boyfriend was given all the time he wanted with my son. At first, it killed me, but I decided, “Whatever’s best for my boy. His happiness must come first!” Though it stung terribly, that attitude sustained me all the way to Christmas.
I waited in my old driveway for 4 excruciating hours, while three inches of snow muffled the screams from the cab of my truck. When they finally pulled in, my ex-wife snickered, “I must have lost track of time?” and handed over my son. I was livid! My boy was dead tired and half-asleep. And the EX…well…she just grinned, confident that there was nothing I could do about it. It took everything I had left to conceal my tears. I didn’t plan to give her anything for Christmas and was doing my best to stick to the plan.”
It is a sad scenario.
In divorce court, many fathers are left feeling that everything they have done, years of hard work, years of tender love, years of unstinting devotion to their family and children count as nothing.
In the 1960’s women fought hard to get laws passed to protect them against family violence, stalking and sexual harassment. The shame is that women of the 1990’s now use these same needed and appropriate laws wrongfully to their advantage and feel justified in punishing their spouse for wrongs they feel have been done to them by misusing the legal system; and in the process erase fathers from the lives of their children!
The facts are that many times the courtroom becomes a legal battleground. Inadequate counsel or absence of counsel can result in decisions that negatively affect children and the family for years to come.
The U.S. Air Force has recently announced a new initiative making it easier for their Airmen and Women, the ability to defer an assignment or be stationed near their children with a court-ordered child custody decree. Assignment authorities will now be able to consider requests for an assignment or deferment to a location near their children, even if the co-parents are not married.
“We recognize family dynamics don’t always look the same and there is not a one-size-fits-all solution to managing people’s careers and assignments,” said Lt. Gen. Brian T. Kelly, deputy chief of staff for Manpower, Personnel and Services. “We ask our people to move frequently and we know that can cause additional stress and sacrifices for their families. This change gives us the flexibility needed to better take care of them.”
Service members who are named as a parent, either biological or adopted, and have a court-ordered child custody agreement are eligible to apply. Assignment matches will be made when possible. It must meet the best needs of the Department of the Air Force. Service members are still required to fill valid manning requirements, perform the duties in which they are trained, and meet all PCS eligibility requirements without waivers.
Nacol Law Firm PC