Parental Alienation Syndrome (PAS) is a generally recognized platform that may result in child abuse. This occurs when a custodial parent of a child from a separated family uses deception to deliberately alienate children from their non custodial parent.
Misplaced Domestic Violence Restraining and Protective Orders are an excellent tool to advance the Alienating Parent’s malice! Misguided Protective Orders of a Court based on such false representations may remove the Accused Abuser Parent from the home, bar the Accused Abuser from seeing his/her children and give the Alienating Parent total physical custody of the children. The Accused Abuser Parent is now effectively “Guilty Until Proven Innocent”.
Once the Alienator obtains a Restraining Order through false domestic violence allegations, the Accused Abuser Parent may find it difficult to defend himself or herself against the false allegations. This sends the implied message to the children that “Daddy/Mommy” is bad or dangerous, stamped by the court.
The Accused Abuser Parent may only see his/her children in a cold and uninviting supervised visitation setting. Supervised Visitation Centers are facilities where a child is taken to meet with the Accused Abuser Parent in a third party monitored location. A third party observes the Accused Abuser Parent during their visit with their children so that the child is “protected” at all times.
Often the supervised visit is demeaning for the visiting parent in the eyes of his/her child. The impression to the child that “Daddy or Mommy” is dangerous comes across loud and clear since most children only see lock up situations on TV and these people are seriously viewed as being bad.
Many Alienating Parents use this scary situation to encourage their child not to see the Accused Abuser Parent at all. The more time a child is out of contact with the Alienated Parent the deeper the scaring and recovery period for that child.
Dr. Richard A. Gardner coined the term “Parental Alienation Syndrome” (PAS) in 1985. Dr. Gardner found that a child subjected to continual negativity and manipulation by the Custodial Parent over an extended period of time against the other parent would eventually adapt the distorted view presented. At the end of the day, what the Alienating Parent fails to understand is that his/her selfishness makes his/her child the “victim” who pays a hefty price in lost self esteem.
Unfortunately, False Domestic Violence Allegations have become more common in Divorce / Child Custody Proceedings. Most Judges usually enter a restraining or protective order for the safety of the child and in too many cases an Accused Abuser Parent is guilty until proven innocent!
Child support is one of the most heavily litigated issues in all of family law. To increase or decrease payments there are specific requirements that must be met to modify a previous child support order. Per Tex. Fam. Code § 156.401 the requirements necessary to modify a prior child support order are:
- The circumstances of the child or an affected party have materially and substantially changed; or
- Three years have elapsed since the order was entered or last modified, and the amount of child support differs from the statutory guidelines by either 20% or $100.00.
The second requirement is self-explanatory. The three-year limitation to file for another modification is for the benefits of the Courts. If there was no three-year waiting period to refill, then every conservator would constantly attempt to modify child support, thus creating endless litigation for clogging the Courts’ dockets.
The first requirement needs more explanation. A Material and Substantial change in the circumstances of the child or an affected party must be clearly shown at trial. Many Courts are meticulous in making the determination of what a Material and Substantial change is regarding the child and the affected party to insure this requirement is not abused for excessive litigation.
To prove a Substantial and Material change in circumstances, a conservator must show evidence at the final hearing of:
- The financial needs/expenses at the time of the divorce or prior modification for the children and the person affected, and;
- The financial needs/expenses at the time of the request for the modification.
If evidence of financial needs/expenses are not submitted and proved regarding both (1) the prior divorce/modification and (2) the recent modification, then no Substantial and Material change can be adequately proved. Further, if the request for modification of child support is predicated solely on one conservator’s increase in earning capacity, absent other compelling evidence, the change in circumstances is not Substantial and Material. Interest of L.R., 416 S.W.3d 675, (Tex. App.—Houston [14 Dist.] 2013, pet. denied.)
If one conservator decides to file a modification of child support within three years just because the other conservative received a better job, it may be dismissed. At the end of the day a Court has broad discretion on determining what is Substantial and Material and may allow the case to be heard and give an unfavourable ruling, but if that occurs you will have the ability to appeal the judgment and request attorney’s fees. It is important to know in any family law case the Judge has extremely broad discretion and interprets case law in a way that he deems fit using the Best Interest Test.
If you are a conservator that meet these requirements above and wish to increase or decrease the child support obligation, be sure to hire an experienced attorney. Nacol Law Firm will always fight for you and your children’s best interest.
Julian Nacol, Attorney
Nacol Law Firm, PC
Call (972) 690-3333
One in three children lose touch with a parent, usually the father, following a divorce. In a recent survey, one in five parents stated that their primary objective during the divorce was to make the experience as unpleasant as possible for the former spouse; despite the effects such attitudes and behavior have on the children. One in three children stated that they felt isolated and lonely during and following the divorce process.
Parental Alienation Syndrome is the systematic denigration by one parent with the intent of alienating the child against the other parent. In most cases, the purpose of the alienation is to gain custody of a child and exclude involvement by the father. In other cases the mother wants the father out of the way to start a new life, the mother wants more of the money and assets than she is entitled to and uses the children as pawns. The mother hates the father and the children become false weapons. These are just a few reason Parental Alienation occurs in domestic disputes.
Parental Alienation Syndrome is common because it is an effective device for gaining custody of a child. Trough systematic alienation, one parent may slowly brainwash a child against the other parent. The parent involved in such alienation behaviors then gains misplaced loyalty of the child.
There are two types of Parental Alienation Syndrome, medical and legal. Medical Parental Alienation Syndrome is a form of emotional child abuse. Parents in hostile separations may suffer depression, anger and anxiety or aggression. The expression of these feelings often takes on a form of withdrawing love and communication. This extends to the children through the custodial parent. It is a mechanism employed to stop the father from having contact with his children; and can be described by the mother holding the children “hostages,” afraid of the mother, and obeying her as a means of survival. The child may also be instilled with false memories of the father, may be coached and/or brainwashed. Parental Alienation Syndrome is recognized by the courts but is very difficult to define and in most cases requires bringing in County Social Services, Child Protective Services, and/or other professionals. Anyone claiming Parental Alienation Syndrome should look for family therapy as a constructive way forward. Other forms of abuse are physical, sexual, and neglect and are much easier to identify.
It is important no matter how bad the alienation becomes that you strategize to create a line of contact with your children, the mother and anyone connected to them. Having a plan is critical. When a father loses contact with his children he goes from disbelief, to despair, anger, depression, confusion and a total sense of social injustice. Having a plan means looking at the situation logically, rather than emotionally.
1. The first stage is to look for direct contact with the mother and children. Can you meet, write, or phone?
2. If you are not allowed contact, can a relative contact the mother or children on your behalf?
3. Can you contact your children through church, school, clubs, sports activities, or daycare?
4. Can you participate in your children’s activities?
5. Do you have a non-suggestive witness that can go with you when you exercise your visitation rights?
6. Is there a local grocery store where you can purchase something to have a receipt stating the date and time you were in the area?
7. Will the police make a report stating that you attempted to exercise your visitation?
8. Whenever possible take video and pictures.
In cases of Parental Alienation Syndrome it is important that you document everything. Keep a diary or timeline. Write important events down on a calendar.
If you are a victim of Parental Alienation Syndrome, contact an attorney. Discuss your options. Formulate a plan to move forward. Do not give up your parental rights as a father.
Divorce is frustrating, confusing, and personally resentful. Divorce is never a pleasant experience even in the most amicable terms. It is important to know what you are in for when a divorce is filed. An original petition will be filed by one of the spouses (the petitioner). Then, the Respondent spouse must be served with papers by a process server unless they will agree to waiver service.
After service of the original petition, the Petitioner may file for a Temporary Restraining Order (“TRO”) to protect the child and marital estate. Once a TRO is granted by the District Judge, a temporary order hearing will be set within 14 days. This temporary order hearing is extremely important and will determine the direction of the case.
Temporary Order hearings are usually condensed to 20 minutes a side depending on the complexities of the case. Within these 20 minutes, you will have to put on evidence for your entire case regarding custody of the children, management of the marital estate, and any other considerations such as receivership of a business.
After the temporary orders hearing, the case will dive into full throttle litigation. Discovery on both sides is usually conducted including interrogatories, admissions, and production of documentation. The documents that are usually requested consists of bank statements, retirement pensions, social media pages, text messages, and emails. Each case requires specific Discovery requests that are narrowly tailored to the facts presented. Discovery can last months and usually follow with motions to compel and sanctions. In highly contested cases the rigors of discovery and compiling documentation can be brutal.
During the Discovery phase, Depositions may be warranted. Depositions consists of your attorney questioning your spouse and any other witnesses that are relevant to the case for impeachment purposes. Depositions are necessary if the case will go to a jury, because impeachment of your spouse is a necessity to prove your truthfulness.
Mediation is often mandatory in Courts, but this is the general rule. Certain Courts in the Dallas, Fort Worth, and Collin county do not require mandatory mediation. Each Court has its own rules of procedure and requirements. If the Mediation fails to produce a settlement between you and your spouse, then the only thing left is a trial.
Depending on the complexities of the case and assets, a trial can last half a day or be a three-day trial. Most trials are before the District Judge. Certain facts may give rise to a jury trial, but a jury trial is more costly and can take up more time. After the trial is complete the parties will have to wait for a ruling. This can take days to months depending on the case and jurisdiction.
When the final ruling is given to all parties, the Judge will charge one party to create a final order that will be submitted to the Court. This can give rise to more litigation depending on the interpretation of the Judge’s rulings by both parties. Finally, when both parties agree to a final order or the Judge determines which version of the final order is proper, then the case will be over.
Divorce can be a painful process that lasts 6 months to three years depending on the circumstances and the nature of the parties involved. If you are about to file for a Divorce in the DFW Metroplex or need help call the Nacol Law Firm, experienced family law attorneys to represent your best interests throughout this painful process.
Nacol Law Firm P.C.
Julian Nacol, Attorney
Rights and Duties of a Parent – Joint Managing Conservator in Texas.
Waiver To the Guidelines is a Matter of Court Discretion
As a joint managing conservator of a child in a divorce proceeding in Texas, unless special circumstances arise justifying a variance from the Guidelines, the Court will normally order guideline code rights and duties and a parent will be awarded the following:
1.the right to receive information from any other conservator of the child concerning the health, education, and welfare of the child.
2.the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child.
3.the right of access to medical, dental, psychological, and educational records of the child.
4.the right to consult with a physician, dentist, or psychologist of the child.
5.the right to consult with school officials concerning the child’s welfare and educational status, including school activities.
6.the right to attend school activities.
7.the right to be designated on the child’s records as a person to be notified in case of an emergency.
8.the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child.
9.the right to manage the estate of the child to the extent the estate has been created by the parent/conservator or the parent/conservator’s family.
10.the duty to inform the other conservator of the child in a timely manner of significant information concerning the health, education, and welfare of the child; and
11.the duty to inform the other conservator of the child if the conservator resides with for at least thirty days, marries, or intends to marry a person who the conservator knows is registered as a sex offender under chapter 62 of the Code of Criminal Procedure or is currently charged with an offense for which on conviction the person would be required to register under that chapter. IT IS ORDERED that this information shall be tendered in the form of a notice made as soon as practicable, but not later than the fortieth day after the date the conservator of the child begins to reside with the person or on the tenth day after the date the marriage occurs, as appropriate. IT IS ORDERED that the notice must include a description of the offense that is the basis of the person’s requirement to register as a sex offender or of the offense with which the person is charged. WARNING: A CONSERVATOR COMMITS AN OFFENSE PUNISHABLE AS A CLASS C MISDEMEANOR IF THE CONSERVATOR FAILS TO PROVIDE THIS NOTICE.
12.the duty of care, control, protection, and reasonable discipline of the child.
13.the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure.
14.the right to consent for the child to medical and dental care not involving an invasive procedure.
15.the right to direct the moral and religious training of the child.
16.Only one parent shall have the exclusive right to designate the primary residence of child in a specific geographical area, which is commonly the county in which the child currently resides and the contiguous counties thereto.
17.the right to consent to medical, dental, and surgical treatment involving invasive procedures may be subject to agreement, an independent right or an exclusive right;
18.the right to consent to psychiatric and psychological treatment of the child may be subject to agreement, an independent right or an exclusive right;
19.Only one parent shall have the exclusive right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;
20.the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child may be subject to agreement, an independent right or an exclusive right;
21.the right to consent to marriage and to enlistment in the armed forces of the United States may be subject to agreement, an independent right or an exclusive right;
22.the right to make decisions concerning the child’s education may be subject to agreement, an independent right a joint right or an exclusive right;
23.except as provided by section 264.0111 of the Texas Family Code, the right to the services and earnings of the child may be subject to agreement, an independent right or an exclusive right;
24.except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government may be subject to agreement, an independent right or an exclusive right; and
25.the right to manage the estate of the child to the extent the estate has been created by community property or the joint property of the parent/conservator may be subject to agreement, an independent right or an exclusive right.
In accordance with section 153.001 of the Texas Family Code, it is the public policy of Texas to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child, to provide a safe, stable, and nonviolent environment for the child, and to encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage. The Court will therefore normally establish the primary residence of the child in the county where the child currently resides and/or a contiguous county thereto, and the parties shall not remove the child from such county for the purpose of changing the primary residence of child until there is a modification to the existing order of the court of continuing jurisdiction or a written agreement signed by the parties and filed with the court.
The geographical restriction on the residence of the child may be lifted or modified if, at the time the primary parent with the right to establish residence wishes to remove the child from the county for the purpose of changing the primary residence of the child, the other parent does not reside in that county or a contiguous county thereto.
Time constraints, employment issues of the primary Joint Managing Conservator, and other material factors may come into play when a Joint Managing Conservator requests waiver of the geographical restrictions. It customarily is a very difficult, but not always insurmountable, burden to achieve a geographical restriction waiver. The success, consistency and regularity of the non-primary conservator’s possession and access to the child is a factor the court will view in making a ruling. Frequently, an agreement to adjust the amount of support and/or transportation costs comes into play in resolving such disputes.