Parental Alienation And False & Malicious Domestic Violence Allegations
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!
Getting a Divorce? Should I Move Out of the Marital Home?
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.
Interstate Jurisdiction Cases when a Parent Abducts their Child
Parental child abduction is the offense of a Parent wrongfully removing, retaining, detaining or concealing their child from the other parent. This often occurs when parents separate or divorce proceedings begin. The abducting parent may consensually remove or retain the child to gain an advantage in pending child-custody proceedings or because the parent fears losing the child in the divorce proceeding. Many times the abducting parent may refuse to return a child at the end of an approved visit or may flee with the child to prevent the other parent from seeing the child or in fear of domestic abuse.
Many abducting parents try to take the child across state lines (Interstate Jurisdiction issues) or out of the country to make sure that the child will never be found by the other parent. They would rather live a fugitive than lose their child.
Are there any laws to stop this child abduction to another state or country? The Uniform Child Abduction Prevention Act (UCAPA) provides remedies with valuable enforceable tools in deterring both domestic and international abductions by parents and unethical people or agents on their behalf. This Act empowers courts to impose measures designed to prevent child abduction both before and after a court has entered a custody decree. Unfortunately, the UCAPA has only been enacted in 14 states (Alabama, Colorado, Florida, Louisiana, Kansas, Mississippi, Nebraska, Nevada, South Dakota, Tennessee, Pennsylvania, New Mexico, Michigan, Utah) and District of Columbia, since its inception.
In Texas Interference with child custody is a felony!
Texas currently follows the Texas Penal Code 25:03, Interference with Child Custody:
Sec. 25.03. INTERFERENCE WITH CHILD CUSTODY. (a) A person commits an offense if the person takes or retains a child younger than 18 years of age:
(1) When the person knows that the person’s taking or retention violates the express terms of a judgment or order, including a temporary order, of a court disposing of the child’s custody;
(2) when the person has not been awarded custody of the child by a court of competent jurisdiction, knows that a suit for divorce or a civil suit or application for habeas corpus to dispose of the child’s custody has been filed, and takes the child out of the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, without the permission of the court and with the intent to deprive the court of authority over the child; or
(3) Outside of the United States with the intent to deprive a person entitled to possession of or access to the child of that possession or access and without the permission of that person.
(b) A noncustodial parent commits an offense if, with the intent to interfere with the lawful custody of a child younger than 18 years, the noncustodial parent knowingly entices or persuades the child to leave the custody of the custodial parent, guardian, or person standing in the stead of the custodial parent or guardian of the child.
(c) It is a defense to prosecution under Subsection (a) (2) that the actor returned the child to the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, within three days after the date of the commission of the offense.
(C-1) It is an affirmative defense to prosecution under Subsection (a) (3) that:
(1) The taking or retention of the child was pursuant to a valid order providing for possession of or access to the child; or
(2) notwithstanding any violation of a valid order providing for possession of or access to the child, the actor’s retention of the child was due only to circumstances beyond the actor’s control and the actor promptly provided notice or made reasonable attempts to provide notice of those circumstances to the other person entitled to possession of or access to the child.
(C-2) Subsection (a) (3) does not apply if, at the time of the offense, the person taking or retaining the child:
(1) Was entitled to possession of or access to the child; and
(2) Was fleeing the commission or attempted commission of family violence, as defined by Section 71.004, Family Code, against the child or the person.
(d) An offense under this section is a state jail felony: Minimum term: 180 days to Maximum Term of 2 years; fine up to $10,000.00
Hopefully, in the near future, more states will adopt the Uniform Child Abduction Prevention Act, but until then, if you think you have a problem with your ex trying to kidnap your child, find out what can be done in your state to stop this before it happens!
Divorce And Your Business: Who Gets What
In today’s unpredictable economy there has been a continuing growth of small businesses and a substantial decrease of existing established businesses in Texas. In the regrettable instance of “Divorce” how may the “Family Business” be divided between a dissolving couple to reach a fair and reasonable result for both parties?
In such a situation, an experienced Family Law Attorney with the aid of economic experts becomes critical in establishing a fair and equitable price on the business, consulting the client on their rights relative to the business, helping with negotiations for a business entity to be sold, transferred, or appraised, and making sure the client’s rights are protected in the transaction.
The most important fact to establish is a credible determination of the true fair market value of a business and how the business or the business assets are to be divided between the spouses in the divorce.
The dividable interest is determined by the fair market value of the business. This value is the price a willing buyer would pay and a willing seller would give in a purchase with both buyer and seller having reasonable knowledge of the relevant facts of the business and neither being under pressure to buy or sell the business.
During a Divorce, the concept of a credible hypothetical buyer and seller may be determative and very complicated. Going through a divorce is difficult enough, but fairly determining the true value of the business in the process can be complicated and sometimes expensive. There are always two different ideas in every divorce and the family business will bring out the some very serious opinions of just what is the “fair market value”! Ideas may range from too high in today’s economy to too low base on emotional attachments, complicated further by feelings as to possible other family members who own or claim parts of the business. The value placed on proposed purchases that are not part of an arm’s length transaction may not be relevant to the correct fair market value.
To help determine the fair market value and complete the transaction fairly for both parties the family law attorney must be able to obtain and review all business and financial records, financial statements and tax returns, and any other pertinent information for the preceding 5-7 years. Often an independent business appraiser or CPA will be retained to help in determining a credible and correct valuation of the business that a Judge or Jury will respect.
