The holidays can be very frustrating times for both spouses when undergoing divorce proceedings that involve custody issues with children and one spouse acts in bad faith or arbitrarily. 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, the order is binding on both spouses. The temporary custody order is binding civilly and NOT criminally per se. This is an important distinction to understand before you decide to call the police. Family law matters, with notable exceptions such as domestic violence and protective orders, are generally governed in civil and not criminal courts. Because temporary custody orders involving children are governed by civil courts, a police officer has no immediate basis to enforce the civil order.
If your spouse refuses to release your child to you at the prescribed time mandated in the temporary custody order, there are certain things that you should do to insure this wrongful conduct properly is 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 or validate your properly made demand for access in accordance with your temporary order.
- Save and preserve any text messages, emails, letters, or recorded phone calls that demonstrate and reaffirm your spouse’s refusal to deliver your children into your custody during the holiday or other allotted time in your visitation order.
- Call your attorney and notify him of your spouse’s refusal to deliver the children to you.
- Do not be tricked or cohered into a physical confrontation with your soon to be ex-spouse!!!
By completing these four tasks you will be gathering and preserving evidence to hold your spouse in civil contempt of Court. After the Christmas Holiday season or other access periods are over, your lawyer with your consent will file 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 for up to 180 days until the fine and attorney fees are paid, and the violation may be a solid basis to favourably modify the previous temporary custody orders. Such rulings are at the judge’s discretion.
Though you may feel helpless at the time, justice may be achieved through the District Courts in the form of civil or contempt sanctions. Judges usually look down on a spouse that blatantly violates temporary custody orders especially during Christmas or other special holidays. Just relax and be patience if your spouse refuses to deliver the children to you and document the conduct. Justice may take time but in the end, it is usually affirmed.
The Nacol Law Firm P.C.
8144 Walnut Hill Lane
Dallas, Texas 75231
In the State of Texas there is one birth statistic that continues to rise: The Birth of Out of Wedlock Children! With dropping marriage rates and increasing non-married couples living together, the percentage of children being born out of wedlock is growing yearly. The Texas Out of Wedlock Childbirth rate of 2019 stands at 41.4%. How are the fathers of these children treated? Does a father have any rights to their children? In most states, the mother of a child has 100% of the custody rights until the paternity of the father is legally established. How does a Texas father legally establish paternity when the mother of their child refuses to allow him to sign the birth certificate and tells him that he will never have any type of communication or relationship with his child?
What are a father’s rights in the State of Texas?
Any and every right a parent may have is available to a father who seeks them.
How does the father file for paternity of the child in Texas?
1. Paternity Registry (Family Code 160.401-2)
The Texas Paternity Registry was created in 1997 to aid men (potential fathers) who desired to be notified of a proceeding for the adoption of or the termination of parental rights regarding a child that he may have fathered. They may register with the Registry of Paternity. The purpose of the Registry of Paternity is to “protect the parental rights of fathers who affirmatively assume responsibility for their children by registering or acknowledging their children (FC Chapter160, Subchapter E). To sign up with the Registry, the father or suspected father must file a Notice of Intent to Claim Paternity before a child is born or within 31 days of the child’s birth. (see form) https://www.dshs.texas.gov/vs/field/docs/vs130(2).pdf
Many men use this Registry when a Father and Mother do not have a continuing relationship and the man is not listed as the presumed father on the birth certificate or Acknowledgement of Paternity.
- Man and woman have a consensual sexual relationship for a brief time and no further contact. Man wants to make sure that if woman becomes pregnant and has a child, he wishes to assert his paternity
- Man and woman do no agree he is the father of the child. Man wishes to assert paternity.
- More than one man claims to be the father of the child. Each man would complete a separate Notice of Intent to Claim Paternity.
- Mother refuses to complete and sign the Acknowledgment of Paternity form.
The notice of Intent Claim Paternity form will not legally establish paternity nor be used to add a man’s name to the child’s birth certificate.
2. Alternate Means to Establish Paternity (Family Code 160.301-2 and 160.402, 160.601)
The mother of a child and a man claiming to be the biological father of the child may sign an acknowledgment of paternity with the intent to establish the man’s paternity.
An acknowledgment of the paternity must:
- Be in a record
- Be signed or otherwise authenticated by the mother and the man seeking to establish paternity
- State that the child whose paternity is being acknowledged:
1. Does not have a presumed father or has a presumed father whose full name is stated
2. Does not have another acknowledged or adjudicated father
- State whether there has been genetic testing and that the acknowledging man’s claim of paternity is consistent with the results of the testing
- State that the signatories understand that the acknowledgment is the equivalent of a judicial adjudication of the paternity of the child and that a challenge to the acknowledgment is permitted only under limited circumstances and is barred after 4 year.
A man is entitled to notice of a proceeding regardless of whether he registers with the registry of paternity if:
- A father-child relationship between the man and the child has been established under this chapter or another law.
- The man commences a proceeding to adjudicate his paternity before the court has terminated his parental rights.
The parentage of a child may be adjudicated in a civil proceeding by voluntary legitimation.
A Father should be proactive and enforce his rights promptly to enhance his probability of fair and equal treatment that is binding under the law!
Nacol Law Firm P.C.
Walnut Glen Building
4188 Walnut Hill Lane #1190
Dallas, Texas 75231
tel: (972) 690-3333
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
Divorce can be frustrating, confusing, and 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, and your spouse must be served with a process server.
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 this 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 documentations. 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, more often than not, 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 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 call Nacol Law Firm so that you have an experienced family law attorney to represent your interests throughout the process.
Dallas Fathers Rights Divorce Attorney
Nacol Law Firm PC
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:
- Did you sign the Pre-Nuptial voluntarily?
- Were you given fair disclosure of the property or obligations of the other spouse?
- Did you waive the right of disclosure in writing?
- 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.