Author: Nacol Law Firm P.C.

Feb
28

Fathers Rights and Legal Presumptions of Fatherhood in Texas

The presumption of fatherhood in Texas is strong, and positively impacts a father’s claims upon his children. Without the presumption of fatherhood, a father would face significant barriers in asserting his rights. The presumption of fatherhood supports access, rights, and duties, allowing the father to assert his right to help raise his child as he deems fit.

The presumption of fatherhood is determined in the Texas Family Code 160.204 and states that a man is presumed to be the father of a child regardless of genetic testing in the following circumstances:

  1. If the man is married to the mother and the child is born during the marriage;
  2. If the child is born before the 301st day after the day the marriage is terminated by death, annulment, invalidity, or divorce;
  3. If the man is married to the mother before the  birth of the child in apparent compliance with the law;
  4. If the man married the mother after the birth of the child in apparent compliance with the law and voluntarily asserted his paternity of the child by:

a. The assertion in a record filed with the vital statistics unit
b. The man is voluntarily named as the Child’s father on the child’s birth certificate or
c. He promised in a record to support the child as his own occurrence

    5. The man during the first two years of the child’s life resided in the household in which the child lived and the man represented to others, (held out) that the child was his own.

These five factual series support the presumption of a father without actually filing a Suit Affecting Parent Child Relationship.

Only the 5th element pertains to men that are not married to the mother of the child. A man that is not married most likely will not legally be presumed the father even if the child is the man’s genetic son or daughter. This is a shock to many men if the relationship between the mother deteriorates and the mother decides to leave town. The father of the child will have no enforceable rights to his genetic son or daughter absent the filing a suit to establish the paternity of the father.

If a father is not married to the mother of his child, then the only option to the father is that he must continuously live with the mother and his child for the first 2 years of the child’s life and hold out to the public that the child is his own. This usually does not happen because of the stress involved in the beginning stages of raising a child and other factors. The father may have an active role in his child’s life but if he does not live with his child continuously for the first 2 years of his child’s life, then the mother may take exclusive possession of his child and move anywhere in the U.S. and the father will have no way to stop her unless he petitions the court for emergency relief, which will likely result in genetic testing.

If you have fathered a child out of wedlock and have not continuously lived with your child for the first 2 years of the child’s life, then it is wise to secure a genetic test and file suit to adjudicate yourself as the father of your child so you may receive the rights of a parent as a matter of law. It is prudent to contact an experienced family law attorney for the process because the innate right to see, guide, and teach your child is too important to forfeit. A man never knows what the future holds in a relationship, and if you have a child out of wedlock it is important to protect your right to be a part of that child’s life. To do this seek an experienced attorney to ensure your right is not infringed or sabotaged.

By Nacol Law Firm P.C. | Parental Rights . Paternity
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Feb
10

Texas Family Court Actions and Parental Alienation

Most children of divorce want to be loved and maintain strong and healthy relationships with both of their parents. These children also want to be kept out of the conflict between their parents. But there are some parents who through their feelings of hatred, rejection or want of control over the rejected parent, brainwash the alienated child to have very adverse feelings for the rejected parent and choose sides to bolster their parental identity. This is called Parental Alienation.

Parental Alienation usually happens equally between children of both sex and many times occur in highly conflicted and long lasting divorces and custody battles. A Study by Fidler and Bala (2010) states that about 11-15% of all divorces involving children involve parental alienation issues.

Parental Alienation involves destructive actions by an aligned parent to discredit and sabotage the rejected parent in the eyes of the alienated child. This is usually a sign of a parent’s inability to separate the couple’s conflict with the needs of the alienated child’s well-being. This adverse action will eventually cause increased hostility and decreased contact with the alienated child and the rejected parent. The aligned parent programs the child to believe that the rejected parent is mean, unloving, worthless and selfish, and makes the alienated child believe that he/she will be happier if the rejected parent is erased from his/her life. In very extreme cases, through manipulation by the aligned parent, the alienated child will start to hate the rejected parent which can lead to many behavioral, emotional and mental problems of separation.

What are some symptoms of Parental Alienation by the Aligned Parent?

  1. Interference with the target parent visits. Giving children unhealthy choices when there is no choice about the visit. Not allowing any target parent visits.
  2. Depriving the target parent from information regarding educational, medical and social activities of the child and excluding or not informing the target parent of all of the school, medical, social activities of the child.
  3. Sharing with the child “everything” about the marital relationship with false information to be “honest” with the child. Blaming the target parent of breaking up the family, financial problems, or not loving the child enough to stay, the alienating parent tries to turn the child and his/her anger against the target parent.
  4. Interference with or not supporting contact between the child and the target parent. Listening into telephone conversation or reading all emails, texting, or correspondence between the child and target parent.
  5. Making major unilateral decisions regarding the child without consulting the target parent.
  6. Refusing to let the child take his/her possessions to the target parent’s residence.
  7. Telling the child, in a time of juvenile crisis, that the target parent has been abusive and the target parent may hurt the child.
  8. By defying the target parent’s authority and supervision, the alienating parent is asking the child to impossibly choose one parent over the other. This causes considerable stress and potential long term emotion scarring for the child and much unnecessary pain, difficulty, and anxiety when trying to love both parents.

The alienating parent will try to program the child to dislike, hate, or fear the rejected parent. By causing the child to disown or distance themselves away from the rejected parent, the aligned parent may, in the end, cause a very distrustful and emotionally scarred child. The goal may be achieved, but not with the desired results of the alienating parent. Many times, the child, without hope, will turn on both parents and never be able to have trusting, loving relationships in his/her life.

Since the American Psychiatric Association does not formally recognize Parental Alienation Syndrome/Disorder, The State of Texas does not provide legal standards to evaluate a parental alienation presence in a child. Texas courts have started to act when there is suspected parental alienation. Some of the aids are courts appointing guardians ad litem, parenting facilitators and forensic psychologists used to study the child’s living situations and mental health of both parents and the child. Reports from these specialists have been used in making some very important rulings for the benefit of the child and the families in suspected Parental Alienation cases.

If you and your child are victims of Parental Alienation Syndrome, please contact a Dallas family law attorney who is experienced in these types of cases in Texas family courts.

By Nacol Law Firm P.C. | Parent Alienation
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Jan
19

Divorce’s Emotional Stages: Are You There Yet?

In 2014, The United States at 53%, had the 10th highest divorce rate in the world! According to the Forest Institute of Professional Psychology: 50% of first marriages, 67% of second marriages and 74% of third marriages end in Divorce in the United States.

Marriages do not break up overnight. There is not one incident or one party that ends a marriage. Your emotional break up usually extends over several years with the marriage parties continually at different stages in the emotional process.

Just remember,” no marriage is totally bad nor totally good!” Do not go fault finding!  Both partners stay in a marriage for a longer period of time because there are good things about it. Now the couple is divorcing because the “bad” things make the marriage not work anymore.

A new divorce survey by Slater and Gordon Law Firm (survey of 1000 divorced people) recently came out with some very interesting results:

  • The average person will spend about 2 years thinking about a divorce before they file.
  • During this time the average person spends 18 months really trying to fix their marriage and working to save it.
  • 76% try to fix their marriage problems before deciding on a divorce
  • 53% discuss divorce with someone besides their spouse before filing
  • 36% spoke with an attorney before deciding on a divorce

What are the emotional stages a couple will experience leading up to a divorce?

1. Disillusionment of one / two marriage partners ( not verbalized to other partner)

  • Continued, ongoing feelings of discontent, pent up resentments and breach of trust
  • Emotional feelings of anxiety, anger, denial, depression ,fear, grief, guilt ,and  love
  • Real problem but unacknowledged
  • Developing greater distance, lack of mutuality, and increase in arguments
  • Consideration of pros and cons of possible divorce and/or separation

2. Verbalized Dissatisfaction ( no legal action yet)

  • Feelings of anguish, doubt, emotional, grief, guilt, relief, and tension after expression of discontent is now in the open!
  • Marriage counseling and giving “one last try” for the marriage

3. Decision to Divorce ( no legal action yet)

  • Feelings of anger, anxiety of the future, guilt, resentment, and sadness
  • Other partner now in emotional stage one and both parties feeling victimized by each other.
  • Realizes this decision is usually not reversible

Divorce Decision Action (the legal process begins)

  • Feelings of anger, blame, shame, fear, and guilt
  • Emotional and physical separation
  • Going public with decision to family and friends
  • Dealing with the “Children Problem”. No way around this one.
  • Hiring an attorney and start the divorce process

4. Acceptance of Divorce / Single Life ( during the legal process or after)

  • Many life adjustments: emotional, mental, and physical
  • Realization that the marriage was not fulfilling or happy
  • Dealing with your children and helping them to understand they are loved and did not cause the end of the marriage
  • Work on developing the “new single you”, new identity and a plan for the future!

This emotional roller-coaster may take years to complete, but keep focused and you will get through it.  Surround yourself with competent legal professionals who will help you through this life changing event.

Just remember this: the divorce emotional stages are a normal occurrence when going through a divorce.  Outside of a death, divorce is one of the most life changing events in an individual’s life.  This list is very basic and you will probably add many other emotions on to the list You are not alone. It is a grieving process and you will recover.

By Nacol Law Firm P.C. | Filing for a Divorce
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Jan
18

Invalid Pre-Nuptial Agreement: Attacking Pre-Nuptial Agreements

Modern High Asset marriages commonly  involve Pre-Nuptial agreements to preserve and protect each spouses‘ property. If one spouse takes advantage of the other and the Pre-Nuptial is unconscionable, it may be attacked as invalid as a matter of law. There are a few considerations you should make sure of before determining if a Pre-Nuptial is valid:

  1. Did you sign the Pre-Nuptial voluntarily?

OR

  1. Were you given fair disclosure of the property or obligations of the other spouse?
  2. Did you waive the right of disclosure in writing?
  3. Did you have adequate knowledge of the property or financial obligations of the other spouse?

If you answered “NO” to either (1) or all of (2)-(4) then you may be in a position to contest the Pre-Nuptial agreement. It is difficult to show that a Pre-Nuptial agreement is unconscionable. The Courts have made it clear that “unfairness” which is short of unconscionability does not make a Pre-Nuptial unenforceable. Determining whether a Pre-Nuptial agreement is valid or not is in large measure a question for the judge and not for the jury. This means that a judge will make the determination if your spouse has forced you to sign a Pre-Nuptial in an unconscionable way.

For high asset divorces, Pre-Nuptial agreements are more common. If you are a spouse that was pushed into signing a Pre-Nuptial without fair disclosure or without adequate knowledge of the property or obligations enforced in the agreement you may have a claim. Depending on the circumstances, invalidating a Pre-Nuptial agreement may be time consuming and costly, so an experienced attorney must be consulted.

Assess your situation at the time you signed your Pre-Nuptial. Did your spouse muscle you into signing the Pre-Nuptial, thus possibly invalidating the Pre-Nuptial? Once you have answered these questions find an experienced attorney that is familiar with contesting or setting aside unconscionable or unenforceable Pre-Nuptial Agreements.

Julian Nacol, Attorney
Nacol Law Firm P.C.

By Nacol Law Firm P.C. | Texas Prenuptial Agreements
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Dec
07

Holiday Violations of Visitation During Covid 19

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. 

  1. 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. 
  2. Save any text messages, emails, or recorded phone calls that demonstrate your spouse’s refusal to deliver the children into your custody during Christmas. 
  3. Call your attorney and notify him of your spouse’s refusal to deliver the children into your custody. 
  4. 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.

By Nacol Law Firm P.C. | 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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