Recurring Wrongful Conduct: Holiday Violations of Visitation Access
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.
Julian Nacol
The Nacol Law Firm P.C.
8144 Walnut Hill Lane
Suite 1190
Dallas, Texas 75231
(972) 690-3333
Are You An Alienated Parent With A Parental Alienation Syndrome (PAS) Family Experience? What Can You Do?
There is nothing worse than a family torn apart by parents who are battling over child custody. Many of these cases are in serious litigation and often, these disputes will continue for years.
What is Parental Alienation Syndrome (PAS)? In the 1980’s, forensic psychiatrist, Dr. Richard A. Gardner noticed a large increase in a disorder where one parent will program or brainwash a child to alienate the other parent. He also found the child was self-creating contributions supporting the alienating parent’s campaign of denigration against the targeted parent.
Dr. Gardner’s definition of PAS: Parental Alienation Syndrome (PAS) is a disorder that arises primarily in the context of child-custody disputes. Its primary manifestation is the child’s campaign of denigration against a parent, a campaign that has no justification. It results from the combination of a programming (brainwashing) parent’s indoctrinations and the child’s own contributions to the vilifications of the target parents. (Gardner, the Parental Alienation Syndrome)
There is no pure PAS diagnosis if the child still has a positive relationship with the parent even though the other parent is trying to alienate the child.
Courts are generally more conservative in their judgment acknowledging PAS in high conflict cases. Even though Parental Alienation evidence may be overwhelming, often courts will enter judgments allowing the “parents to make joint decisions about the child’s welfare.” This will not ever happen between two alienated parents! In many situations it will take a dramatic or tragic situation to force the court to change primary custody. When the alienating parent becomes unstable mentally, the court will recognize that there is something “out of line” and will become more supportive of the targeted parent.
What are the Best ways for the Alienated Parent to Deal with the PAS issue?
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Keep your “cool”. Never retaliate. Never act in anger since anger=unstable.
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Never give up! You cannot let your child grow up in this environment of hate. The child is the victim of a situation that he/she never asked to be in.
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Be “Proactive”! It is a terrible situation for the entire family, but work on seeking constructive action to solve the problem. Do not allow yourself to become a victim!
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Always keep a journal of dates and times of major key events. Explain when the situation occurred and what happened specifically. Any Witnesses?
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Always call and show to pick up the child even when you know he/she will not be there. Try to contact the police to have a record of the no-show event or take a witness to video the denial of possession. You do have an interest in your child, no matter what the alienating parent says.
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When you do see the child, focus on enjoying your parent-child time together. Never talk badly about the other parent and do not let children overhear inappropriate conversation on the telephone.
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Hire a skilled family lawyer who has experience in parental alienation syndrome issues. Do your homework on PAS and interview the lawyer on his experience and what your issues are. If you are not satisfied look again. This is your life and you are trying to save your child.
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Be prepared to financially see this case to the end. Most of these case last for years. You cannot start and stop.
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A forensic evaluator in PAS cases is usually an asset in showing that there is truly alienation occurring and recommend changing legal and primary custody to the alienated parent. An appropriate parenting plan included showing how well the child will be taken care of with the alienated parent, is advised.
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Always pay your child support on time and never violate court orders. Never give the alienating parent reason to question your behavior.
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Last but not least, to show that your parenting skills are superior, take a comprehensive parenting course to be able to show the court that you strive to be the best parent you can to the child, no matter what the alienating parent says.
Concerns About Special Needs Children in a Texas Divorce
Parents of a special needs child face many challenges while raising and nurturing their child. Many marriages falter and end in divorce due to the stressful demands required of parents with a special needs child. The stressors and emotional pressure that exists prior to the initiation of a divorce frequently accelerates during the divorce process. A special needs child is seriously affected by their parental decisions made during a divorce.
A divorce does not bring out the best in any couple. In the case of a special needs child, thoughtful and prudent care of the child should always be the main objective of both parents so the child knows that he/she is loved by both parents and is not at risk. A special needs child will experience serious emotional and behavioral problems during this time becoming more vulnerable and not knowing what is happening in life. The child is often afraid that he/she is losing Mom and Dad due to false and misplaced self-imposed guilt.
Many parents have already struggled with questions surrounding their child’s special needs such as correct diagnoses or the validly of treatments for their child’s conditions. During serious custody battles, such concerns become the focus of intense parental conflicts.
Some of the more serious concerns are:
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A child’s reactions to overly permissive or excessively rigid parenting
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Use and dosage of prescribed medicines for a diagnosed problem
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Proper diagnosis being made by a competent professional
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Whether a professional label and diagnosis will be noted in school records
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Whether a child be placed in special education classes for leaning or emotional disabilities. Whether one parent is so occupied with the special need child that the parent has lost perspective on how to best manage the child
Often one parent accepts a child’s diagnosis given by the specialist and actively advocates for the child, while the other parent may remain in denial of the child’s obvious needs. Which parent is actually and consistently working in the child’s best interests?
Special efforts are needed when setting up possession schedules for your special needs child. Both parents must understand the nature of the child’s physical/emotional problems and the level that the child can function. When the child spends time in each parent’s home, both parents must reasonably work together and agree on a parenting approach that addresses the child’s needs.
When parents cannot agree upon the child’s actual needs and course of care, the court may appoint a specialist to conduct a complete evaluation of the child. From this evaluation the specialist will offer specific opinions to the parents and court regarding the nature of the child’s special needs and specifically address these needs.
In a divorce involving a special needs child many joint decisions are critical to and impact a child’s self-esteem. Other family issues and problems may need to temporally be put aside between the parents to assure a special needs child will fully receive the attention needed. We suggest that in the divorce decree a parenting plan be included setting out specific provisions for the care of the child.
Some suggested items to include in this Plan would be:
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Can the child be cared for in the home or an outside facility and how would these costs be covered?
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Medical, educational, and therapeutic interventions and decision making authority
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Treatments not covered by insurance. Who is responsible as to the authority and cost?
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Working with the child’s school to implement plans for the educational needs of the child.
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Care decisions on parents’ ability to work outside the home with a special needs child
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Handling of Lifetime care and support and the cost necessary for the special needs child
Unique Possession Orders that Work with a Fathers Profession
Many professions create impositions on conservators making a standard possession order inapplicable and unworkable. The Court may deviate from a standard possession order if the order is inappropriate or unworkable in reference to the schedules of both the conservators and the child. Unique professions and irregular school schedules for children allow the Court to have flexibility to deviate from a standard possession order that is in the Best Interest of the Child. There are multiple ways in which the Court may depart from a standard possession order to fulfill the needs of all parties involved with the custody of the child.
First, the Family Code § 153.254 states that the Court will be allowed deference to modify the standard possession order if work schedules of either conservators or the school schedule of the child is irregular. The Court must attempt to narrowly tailor the modifications to keep the new possession order as similar to the standard possession order as possible. This instance most commonly occurs when the Managing Conservator and the Possessory Conservator cannot reach an agreement and one of the two Conservators has a unique profession such as a firefighter, police officer, or airline pilot. The working hours of these jobs allow the Court to modify the standard possession order even if both of the parties do not comply with the changes. The modifications must be made only if it is in the Best Interest of the Child.
Secondly, the standard possession order may always be modified if it is by the mutual agreement of both the Managing Conservator and Possessory Conservator. Family Code § 153.007 is the Agreed Parenting Plan Statute and allows for both parties to agree on a standard possession order for the child. This statute was passed to promote amicability in settlement for child custody issues and to give flexibility to the parents if they are willing to agree on custody terms. The Agreed Parenting Plan must be in the Best Interest of the Child for the Court to approve. If the Court grants the Agreed Parenting Plan then the Managing or Possessory Conservator will have a remedy as a matter of law for any violation of the agreement committed by either party.
Finally, both Conservators may enter into a Mediated Settlement Agreement under Family Code § 153.0071. A Mediated Settlement Agreement is the only time in which the Court will NOT look at the Best Interest of the Child when granting the custody agreement.
The Mediated Settlement Agreement § 153.0071 must be:
- In bold, underlined, and capital letters that the agreement is NOT REVOCABLE
- Signed by Both Parties to the agreement
- Signed by the lawyers (if represented) of each party
The Mediated Settlement Agreement is binding and not revocable so if the Conservators wish to go this route they must understand that what is in the agreement will be held as binding. This method can be used to modify or change a standard possession order and the Court will not look at the Best Interest of the Child regarding the agreement, unless there exists a credible threat of domestic violence.
These are the methods in which a unique possession order may be obtained to accommodate irregular schedules or working hours of both the conservators. Any possession order must be correctly drafted and all future contingencies must be accounted for. An experienced lawyer must be contacted to safeguard an individual’s custody rights of their children and to make sure that a fair custody arrangement is obtained.
How To Avoid Major Financial Pitfalls in a Divorce
You are getting divorced! After the emotional decision is made you must address financial situations impacting the family breakup.
What are the major financial pitfalls of a divorce? Are you prepared to stay on top of all financial problems and decisions in this divorce to strive for a financial win-win situation?
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Where’s the liquid cash? Divorce generally never goes as fast as you would like nor do you receive as much as you think you should! If divorce is imminent start saving up money now! You will need to pay divorce expenses and have support for your new household. There will be many unanticipated costs that may drain you financially.
- If you don’t have a credit card in your name get one now. If you share credit with your spouse, close out as many credit cards as possible if he/she can charge on your credit. Even if you don’t use the cards, the account balance will still be owed and both spouses may be legally responsible for the debt.
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Not Prepared for this Divorce? Divorce is a serious change of life event. Get Prepared Now! Timing is all important! When is the best time for you to get divorce? Make sure your financial situation is good before you take the divorce leap. Need new tires, buy them. Kids need dental work, see the dentist. Just remember: after the separation, your expenses will be paid by court order and not always be to your liking.
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Where are the important divorce financial records? Don’t leave without all your documents that identify what you and your spouse accumulated during your marriage and which can establish the fair market value! Even if you were not in charge of finances while you were married, you must secure copies of all records. You are entitled to your share of financial property and any additional income you find may increase the earnings that calculate child support or spousal maintenance support. What are you looking for? At least three years of tax returns, mortgage paper on your home, wills, trusts, bank, credit card, and financial statements, car registrations and titles, insurance policies, and deeds to real estate. If you have separate property from inheritance or gifts from your family, make sure you have all records of these transactions. Our blog, Texas Financial Checklist http://dld.bz/dqcej is a detailed list of items and records needed to have before filing for divorce. A very good item to use for your preparation!
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Have you overlooked any Divorce Assets? If a business is involved a forensic accountant may be hired to look of any signs of additional income or overstated expenses.
- Hobbies and side businesses that use expensive equipment or generate income needs to carefully be looked out. Are you entitled to compensation for expenses you paid to get your spouse through school?
- All assets, big or small can add up. These assets can always be used for trade on something you can use.
- Your spouse may try to hide assets. By keeping all documents and paystubs to make sure there are not any irregularities, things usually work out fine. Stay honest and reveal your assets.
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Do Not Ignore Tax Consequences! Divorce may or may not create taxable events but you must report it on your tax return. Should you sell the house now to claim the capital gain exclusion? Who should be paying the mortgage until it sells? Should you take your spousal maintenance monthly or in a lump sum? What about retirement funds? An accountant can help to determine the best path for you on these questions.
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Passive Observer of your Divorce? NO! Get control of this process, focus on practical things and work with your future Ex to get this divorce over! You can do this! There is a reason for this divorce and you are the master/mistress of your destiny. Your children need you now to be a responsible parent and wise decision making will save you time and legal fees. Listen to your attorney but you make the decisions!
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Is Divorce your survival plan? Now that you have decided to divorce you must break it to your children. People engaged in a Divorce should be in survival mode. The person who will be your future “EX” is looking out for themselves and you need to look out for yourself and your children. YOU must insist within reason on getting what you need and deserve! Emotions and money do not mix! You must be able to take care of yourself and your family financially so look at all property division decisions very carefully and make good decisions to bring the divorce to a successful conclusion.
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Prepare for the worst! When entering into a divorce, prepare yourself for the worst! If you are prepared for anything, than your fears will not cause you to panic and you will keep control of your situation. Outside of death, divorce is considered one of the worst emotional situations that a human being will ever experience!
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How will you support yourself and the kids after divorce? Hopefully this is not a problem, but now would be a good time to get some career counseling at a community college, university or local job center. Having a fulfilling career is lucrative and helps your self-esteem!
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Get Good Advice! Decisions you make now will affect the rest of your life. Find a good, knowledgeable attorney to help you though the rough spots. If you are emotionally a wreck, find a good therapist. If you feel there are hidden assets, hire a forensic accountant. Now is the time to get the best advice you can afford! You will have to live with your financial decisions for a long time.
