FAQs Family Law

    • General Information
    • Marriage and Divorce
    • Division of Property Upon Divorce
    • Alimony/Court Ordered Maintenance in Texas
    • Enforcement of Court Orders
    • Custody Issues
    • Modifying Custody, Visitation, and Child Support
    • Family Violence / Protective Orders in Family Cases
    • Grandparent’s and Close Relative’s Rights to Custody and              Visitation or Access
    • Paternity Actions
    • Bankruptcy Issues

 

General Information

The following are basic rules regarding divorce and family law cases. Remember, however, that these are only some of the basic rules and are not substitutes for detailed discussions with your attorney and their staff. If you have any questions, do not hesitate to ask

Attorney and Client

The following section discusses the relationship and general interactions between you and the attorney and his or her staff and is for informational purposes only.  See Disclaimer.

Attorney and Staff Employees

The attorney and staff work together, each doing those tasks which they can do most effectively,  both from a time standpoint and quality standpoint. The legal assistant’s time costs less than the attorney; therefore, the legal assistant may handle many of the time consuming tasks involved in gathering information and day-to-day contact with the client.  If you hire a lawyer, you will be dealing with both the attorney and the legal assistant(s) while your case is pending.

Your Role As the Client

This is your case, not your attorney’s. There are a great number of things that you must do during your case.

Be Informed

You should be as informed and as involved as your case as possible. You should read and understand any and all documents that are produced in your case.

Keep a Complete File In Your Possession

All correspondence and documents produced in your case should be forwarded to you.  Keep a copy of any document furnished to your attorney, so that if it is lost, it can be replaced.   Please establish one file in which to keep all your case related documents. Please remember to bring that file with you each time you go to court, mediation, or when you visit your attorney’s office.

It Is Important to Tell Your Attorney the Truth About All Facts and Documents

You should consider that it is critical to be totally honest with your attorney on every aspect of your case and give all information about anything which could be related to your case.   Your attorney will discuss with you how attorney client confidentiality and privilege works, and it limitations, and how ethics relate to what you should or should not disclose to your attorney.   This includes not only information helpful to your case but, equally important, all facts or documents which might hurt your case. Chances are your opponent’s attorney is going to find out about them anyway, so do not let your attorney be the last to know.   Hidden negative facts are usually not as harmful as you may think, and usually hidden facts that become known, especially if lied about under oath, can be harmful if not fatal to your case.

Legal Requirements to Tell the Truth

In this respect, you do need to be made aware that, at any time you are placed under oath at a deposition or a trial, or when signing a document under oath, you will be required to tell the truth, the whole truth, and nothing but the truth. If you do not, you subject yourself to criminal perjury charges and judicial sanctions.   Likewise, Texas law requires your attorney to see to it that you tell the truth; therefore, when you are under oath, your attorney cannot and will not condone any testimony by you which is less than the whole truth.  If you insist upon telling lies or material misrepresentation, your attorney may have no choice but to withdraw.   If this happens, you might has well paint a “Scarlet Letter” on your forehead.

Information Gathering

Facts are the heart of your lawsuit. You will be given information sheets to fill out and requested to gather information and documents. This will be time-consuming and tedious work, but it is extremely important. It must be done. You, the client, have a much greater knowledge of and access to this factual information than your attorney. Further, as you research and piece together this information, you begin to develop the necessary understanding of your case. Also, you can do this work at no charge to yourself, whereas the lawyer or staff, if required to do it, will be billing you for their time and labor. For all of these reasons, you should do as much of the information gathering, under the direction of your attorney and staff, as possible.

Review Opposing Client’’s Documents

Your attorney will provide you with copies of all documents supplied by you or by the opposing party. It is very important that you review these documents immediately, familiarize yourself with them completely, and ask any questions or detect anything important or unusual in the documents (e.g., checks written for unusually high amounts or to unfamiliar persons or sources).

Decision Making

No final settlement of your case will be made without your approval and consent. Other major decisions will also be made with your approval and consent (e.g., to demand a jury or not, to seek child custody or not, etc.). However, you will need to allow your attorney the authority to make other decisions which bear on your case, but which involve professional judgment or courtesy. For example, your attorney should decide how to phrase allegations contained in your pleadings and when to file the pleading. On occasion, your spouse’’s attorney may ask for a continuance or postponement of a hearing on a motion, deposition, etc. Resistance to a legitimate request of this nature is often not in your best interest. For example, your attorney may know that your side will need to make a similar request in the future. Your attorney should be the decision maker for these and similar matters.

Attorney-Client Relationship

You and your attorney and her staff are in an attorney-client relationship, which is recognized by the law to be a very special relationship. Your attorney and staff owe one hundred percent of the allegiance to you and your case and owe no allegiance to your spouse whatsoever. Your attorney is required to represent you zealously, but within the bounds of the law.
Do not be mislead if you find your attorney dealing with your spouse’’s attorney on a friendly basis. Professional and common courtesy dictate this. Good lawyers are perfectly capable of zealously defending and promoting their clients’’ best interest, without becoming personal enemies. Attorneys are in fact trained to be advocates for the children without becoming emotionally involved. One of the very reasons you hire a lawyer is to have someone on your behalf who not only has legal expertise, but who will not become emotionally involved. You want your lawyer to use her head, not her heart. Indeed, you should expect your lawyer to be objective and to remain unemotional on your behalf, because it will often be hard for you to do so.
By virtue of the attorney-client relationship, there automatically arises what is known as the ““attorney-client privilege.”” The privilege prohibits from disclosure any information, whether communication orally or in writing, between the attorney and the client, so long as the communication was intended to be confidential. Such communications also include all correspondence or documents from your attorney/staff to you, and vice versa (e.g., information sheets you prepare for us), as well as all telephone conversations and in-person conferences between you and your attorney and staff.

Caution: The attorney-client privilege exists only between you and your attorney and her immediate, in-house staff. The attorney-client privilege can be waived if the otherwise confidential information is disclosed to persons other than your attorney and her immediate staff. For example, if you tell your spouse something that your attorney has told you, then the information will lose its privilege from disclosure and will have to be disclosed by you in court. Also, the privilege does not exist between you and other persons who may be involved in your case to assist you (e.g., CPAs, appraisers, etc.). Therefore, be very careful what you say to these persons, even if they are ““on your side””, for anything you do or say may be required to be disclosed to your spouse’’s attorney.

Contract

You should read and understand your fee contract. If you do not understand the financial obligations required of you under the contract, you should immediately discuss those questions with your attorney. You should not sign the contract unless you understand it.

Other Professionals

Besides your attorney and her immediate, in-house staff, other outside professionals are sometimes hired to assist in the divorce case. It may be necessary to engage an appraiser, a tax expert, CPA and other such professionals. Your attorney will discuss the necessity of these experts with you and hire only those that are in your case and only with your consent.
Caution: Again, even though these persons are hired on your behalf, information provided to them is not protected from disclosure by the attorney-client privilege (as discussed above).

Decision to Divorce

At the outset, you should be absolutely sure that your marriage is beyond saving. If you are uncertain, you should encourage your spouse to join you in marriage counseling, and a counselor can help you with emotional problems much more effectively than your attorney.  Many times, major medical health insurance policies will pay for limited family or marital counseling.
If you find you are experiencing emotional problems, please employ a professional counselor for your personal benefit. Your attorney is a knowledgeable in law, not psychology or marriage counseling, and a counselor can help you with emotional problems much more effectively than your attorney.  See our Resources Page for information on Divorce Counseling and links to Counseling sites.

Gary Kollmeier

Attorney • Mediator

501 S. Carroll Blvd, Suite B
Denton, TX 76201
(940) 387-8181
 

Marriage and Divorce

How do I begin my divorce suit?

A petition for divorce must be filed and the required fees paid in the district clerk's office in the County in which you or your spouse have resided for at least 90 days.  This process is started by filing a properly prepared written petition asking that the marriage end and stating what you want to happen about in relation to community and separate property, debt custody, visitation, child support, health support for the children, your children (who they should live with.  You may also say in general what you want to do concerning who gets what property and who pays what debts, including income taxes and tax refunds.

What do I do if I'm served with divorce or modification papers?

Immediately see a competent lawyer experienced in family law matters. If you do not have a proper written response filed with the court by the time stated on the citation (usually the front paper attached to the bundle served on you), a default judgment can be granted against you and you may have a very difficult and expensive time getting it changed, if you can get it changed at all. The attorney will guide you through each step of the process, and while it can be expensive, it might not be nearly as expensive, both financially and emotionally, as if you do it yourself and do it wrong.

What if there are children of the marriage?

If there are children born, adopted, or expecting during the marriage, the suit for divorce must also address matter of custody, visitation, and child support.   This part of the divorce suit is called a Suit Affecting The Parent-Child Relationship.    The property part of a divorce, or the status of marriage dissolution cannot be separated and tried apart from the Suit Affecting The Parent-Child Relationship.    If a wife has given birth to a child or is expecting a child since the time she married, but the child is not or may not be the biological child of her husband, that information must be given the court as soon as possible.    A denial of paternity needs to be filed if the Wife or the Husband does not think the husband he is the biological father of the child born or to be born of the wife.   DNA testing is available, and the wife and the father can be ordered to participate.

Who is the "Petitioner" and who is the "Respondent?"

The party who files divorce first is called the "Petitioner" and the other party is called the "Respondent."

Is my spouse notified after I file my petition?

Yes.    Not automatically, in most counties in Texas, this information is not automatically published, however, most counties, including Denton County, have a sophisticated web site that contains information about pending court filings.  .

How is my spouse notified?

By receiving a copy of the petition from a sheriff, constable, or court approved private process server; or

Certified mailing from the district clerk's office; or

If the parties agree, the non-filing spouse may, after the petition is filed, sign a document called a "Waiver Of Service and Citation"; or

If your spouse cannot be located after a diligent search, a notice may be published in the newspaper.
This is called: Citation by Publication

What happens after my spouse is notified of the filing?

Once a Respondent is officially notified, there is a deadline to file a response to the petition. If the deadline is not met, the Petitioner can go forward and obtain a divorce by "default."  This is not usually a good viable option because of significant issues related to enforceability and because most defaults can be set aside or appealed.

What is a Temporary Restraining Order?

A Temporary Restraining Order (TRO) sets forth the acts which either or both parties are prohibited from doing immediately after the petition is filed such as wasting assets or harassing the other party.   In Denton County, Texas, the family courts have issued a Standing Order in family law cases that includes most of the relief that would have been sought in a TO.

Can I get a Temporary Restraining Order (TRO) without notice to my spouse?

Yes, if the court approves the request for a TO, and provided that your spouse does not have an attorney.

What happens if the TRO is violated?

A person who violates a TO, or any other court order, can be held in contempt of court and punished by a fine and/or jail sentence.  This is called an Enforcement Action.

What happens at the TRO hearing?

Usually, the TRO becomes a Temporary Order, (TO) that is a temporary injunction.   This order lasts until modified by the court or the final orders are entered.   A temporary order is enforceable by contempt also.

Can my spouse also ask for a divorce?

Yes. The respondent can file his or her own request for divorce in a document usually referred to as a Counter-petition for divorce.

What happens if I reconcile with my spouse?

You can dismiss your divorce proceeding.  This is called a Non-Suit in Texas.

How soon can the court grant my divorce?

A petition for divorce must be filed with the court for at least sixty (60) days before the court can grant the divorce.  This “cooling off period” cannot be waived, even with the consent of both spouses.

How long does it take to get a divorce?

If the parties are in agreement, a divorce proceeding can be finalized soon after the sixty-day waiting period is over. If the parties are not in agreement, the time it take will depend on the court's schedule and the complexity of the case. From start to finish, the divorce process may go through a number of phases which might include temporary orders, exchange of financial information, psychological evaluations or social studies (in custody cases), alternative dispute resolution such as mediation, final trial, and potentially an appeal. A divorce in which the parties are not in agreement on some or all issues will usually take at least several months to one year.   If urgency is a goal of one or both of the spouses, your attorney should be informed at the outset of the case.

When am I divorced?

You are divorced when all the property and child related issues are resolved and the judge signs a final written order, usually call a Decree of Divorce.   Many times the parties appear before the judge, who will issue a rendition of divorce, however,  the written decree is submitted at a later date for approval and entry by the judge.   The divorce is not final until the written order is signed by the Court.

How long must I wait to get married again?

In most cases, you must wait thirty (30) days, but the court can grant a waiver to permit you to marry sooner.   If this is an issue, your attorney should be informed at the outset of the case.

Does Texas have an age requirement for marriage?

Yes. Both parties must be at least 18 years old to obtain a marriage license. If either party is under 18 years of age, parental consent or a court order is required.

Can I marry someone who is related to me?

It depends. You cannot marry (1) someone who is an ancestor (mother, father, grandmother, grandfather, etc.) or descendent (son, daughter, grandson, granddaughter, etc.); (2) your brother or sister; (3) your parent's brother or sister (aunt or uncle); (4) your niece or nephew.

Can I legally marry someone of the same sex?

No.

What is a "licensed marriage?"

A "licensed marriage" or "ceremonial marriage" requires a license and is performed by an authorized official (minister, priest, rabbi, judge, etc).

What is an informal marriage or "common-law marriage?"

An informal marriage (sometimes called a common-law marriage) can be created in two ways.

When a man and woman sign and register an official document of marriage at the county clerk's office they can become married.

A man and woman may also enter into an informal marriage if they agree to be married, live together in Texas as husband and wife, and represent to others that they are married.

Is there a "common-law" divorce?

No. If the parties to a non-registered informal marriage separate and live apart for two (2) years or more, the parties may or may not need a divorce depending on the circumstances.   This is a very critical issue, and needs to be discussed with an experienced family law attorney. 

Parties to a registered informal marriage must be divorced the same as parties who were married in a ceremony with a marriage license.

Is an annulment different from a divorce?

Yes. An "annulment" is a proceeding to have a marriage declared void as if it never took place. A "divorce" is the proceeding to end a valid marriage.

What are the grounds for an annulment?

An annulment will be granted if (1) the parties are related, by blood or adoption, as set out above, or (2) either party was previously married and the prior marriage has not been dissolved.
An annulment may be granted if at the time of the marriage one party to the marriage was (1) underage, (2) under the influence of alcohol or drugs, (3) impotent, (4) mentally incompetent, (5) forced to marry, or (6) was misled about prior divorce. In most cases, the law requires that the person seeking the annulment must cease living together with the other party once the problem is discovered.

Must fault be found against a party for a divorce to be granted?

No. In Texas, a divorce may be granted without either party being at fault. A divorce may also be granted when one party is found to be at fault in the break-up of the marriage.

How long must I live in Texas to get a divorce here?

Before filing, one of the spouses must live in Texas for at least (6) months and in the county where the divorce is filed for at least ninety (90) days.  Keep in mind, however, that there may be jurisdiction both personal and of the subject matter of the case which prevent a complete divorce if the court determines that it does not have personal jurisdiction over the absent spouse.   This is a very critical issue, and needs to be discussed with an experienced family law attorney.

Domicile and Residence

At least one spouse must have been “domiciled” in Texas for six months, and a “resident” of the county where the suit is filed for ninety days, before the petition may be filed. The terms “domicile” and “residence” have different legal meanings, which can be explained to you by your attorney.

Is this different if I am in the Military?

Yes. Time spent by a Texas resident outside of Texas, while in the military, satisfies the residency requirement in Texas for a divorce

Are there any problems if my spouse is in the Military?

Yes, the Soldier’s and Sailor’s Relief Act, and other Federal and State laws establish some stringent criteria in relation to pursuing any civil case when one spouse is in the military.

This is a very critical issue, and needs to be discussed with an experienced family law attorney.

 

Gary Kollmeier

Attorney • Mediator

501 S. Carroll Blvd, Suite B
Denton, TX 76201
(940) 387-8181
 

Division of Property Upon Divorce

This subsection is an elementary discussion of some basic rules underlying Texas marital property law.

What are the types of property in Texas?

In the context of divorce law in Texas, all property, both real and personal, is characterized as two different types of property; (1) “separate property” and (2) “community property”

What is Separate Property?

Separate property is that property owned by a spouse prior to marriage or acquired by a spouse during marriage by gift or inheritance. If new property is acquired with separate property, the new property usually maintains its separate character.

Separate Property

Separate property” is property either (1) owned or acquired by a spouse before marriage or (2) acquired by a spouse during marriage by either (a) gift or (b) inheritance. It is the date of acquisition and the source of the property that control, not how it is eventually paid for. For example, if one spouse owned a house or car before marriage, it will be characterized at the time of divorce as that spouse’’s separate property, even if it was paid off in whole or in part during marriage.
A gift includes, for example, any Christmas or birthday gifts from one spouse to another during marriage (even if purchased with community funds). If a gift or inheritance goes to both spouses (e.g., wedding gifts), then each spouse has an undivided fifty percent interest in that one piece of separate property.
Separate property can change forms without changing its character as property (this is often referred to as a ““mutation””). For example, if wife has $5,000 in cash which is her separate property and uses that $5,000 cash alone to purchase outright a $5,000 boat, then the boat would likewise be her separate property.
A court has no authority to take a spouse’’s separate property from him or her at the time of divorce.
Caution: Any property owned by either spouse at the time of divorce is, by law, presumed to be “community property” unless otherwise proved to be separate property (see discussion of “community property presumption” below); therefore, a spouse must (1) specifically plead and (2) prove by clear and convincing evidence each item of real or personal property claimed to be his separate property.

What is Community Property?

It is presumed that all property acquired by the parties during the marriage is community property.  

Community Property

Community property” is any property acquired by either or both spouses during marriage other than by gift or inheritance. This may include virtually everything purchased or earned during marriage.  It is important to remember that a marriage legally endures even after your separation (whether before or after the divorce petition has been filed) and all property may be characterized as community property. This is true even if the property is not physically received until after marriage. For example, if the day before the divorce is granted a wife contracts to purchase a new home (with closing set off for one month later), or husband enters into a partnership agreement, this will be characterized as community property.

All property which exists in whole or in part in the name of either spouses at the time of the divorce is presumed by law to be community property. This is referred to as the “community property presumption.”  Therefore, if you have any separate property or if you are in the possession of property which does not belong to either you or your spouse, you must point this out to your attorney.

In Texas, earnings from separate property are community property. For example, if husband has $5,000 in the bank account at the date of marriage, the $5,000 remains his separate property, but all interest earned on the $5,000 becomes community property.

Unlike separate property, a court has the authority to divide community property in any manner that it deems to be ““just the right”” (as discussed in more detail below.)

What is Mixed Title Property?

Mixed Title to Property can be both separate property and community property in character. For example, suppose a car is bought during marriage for a total of $10,000 in cash; $6,000 of that was from husband’s separate property account which he had prior to marriage, while $4,000 of it was from a bank account established during marriage and contained the community property earnings of the parties. In such event, title to the automobile would be sixty percent husband’s separate property and forty percent community property.

What is Reimbursement?

Reimbursement is an equitable claim from one estate against other. 

Pursuant to the rules above, there may at the time of divorce, exist three different “estates”; (1) husband’’s separate property estate, (2) wife’s separate property estate, and (3) the community estate. Each of these estates may have a “claim for reimbursement” back against the other estate or estates. For example, if Husband owned a car, as well as a note on that car, before marriage, then at the time of the divorce the car will belong to husband’’s separate estate, but the community estate would have the right to ask a court to order the husband (i.e., his separate estate) to ““reimburse”” the community estate for community funds used to pay off his separate property car. This is one very simple example of the doctrine of ““reimbursement””. Again, reimbursement can be by, against, and between any of the three estates.

Since reimbursement is an ‘‘equitable” doctrine, a court is not required to order reimbursement, but may choose to do so if the court considers it equitable under all of the circumstances of the case. It should be noted: however, that to prove reimbursement, it often requires a great deal of time, accounting, “tracing” of funds (discussed below) and expense to prove the claim. Whether reimbursement should be sought is a decision you and your attorney will make after weighing all of the factors. Texas has a new doctrine called economic contribution. Be sure to ask your attorney if this applies to your case.

What is Tracing?

To determine title to property as being separate property and/or community property, and to determine rights to reimbursement between the different marital estates, an accounting method referred to as “tracing” is often employed in divorce cases. For examples, one bank account may contain funds which consist of both separate property and community property. Or, community property funds may be used to pay off a balance of a separate property debt. Tracing is employed to determine the title to property or the amount of reimbursement.Doctrine of commingling: If funds in an account contain both separate property funds and community property funds and these funds have been so commingled as to defy a clear divorce-time segregation by means of tracing, then the entire account will be characterized as community property (because of the clear “community property presumption” discussion above). This is referred to as the doctrine of “commingling”.

What is Economic Contribution?

A claim for Economic Contribution under Chapter 3, entitled Property Rights and Liabilities, of the Texas Family Code, is a claim of a contributing marital estate against a benefitted marital estate.  This statute was enacted in 1999, and has been amended several times since.   The purpose of the new statute was to address the inequities in Texas case law that did not fairly recognize the claims of one marital estate for making an economic contribution to another marital estate.  This is a very complex are of law, and the application thereof should be discussed with an experienced divorce attorney.  

Does the judge divide Community Property and Separate Property at the time of divorce?

No.  The judge can only divide the parties community property. The judge cannot take away a spouse's separate property.

How is the property divided?

The judge divides the community property and liabilities in a "just and right" manner. In some circumstance the judge may award more of the community property and/or the liabilities to one of the spouses.

What does a Court do with Debt?

Debts and Liabilities

Debts and liabilities incurred before marriage, if still in existence at the time of divorce, will generally remain the debt of the party who incurred it. Debts incurred during marriage will be subject to the “community property presumption.” and may be divided by the court between the parties at the time of divorce. One spouse may be required to assume a debt incurred solely by another spouse during marriage. Although not an absolute rule, the general rule of thumb is that, following the filing of the divorce petition, courts are usually going to award a debt to the spouse who incurred the debt during separation. Decisions will also need to be made regarding contingent liabilities, such as past income tax liabilities which may arise in the future if the parties are audited, as well as tax liabilities for the year of divorce.

Caution: Although a court will order each spouse to be solely responsible for certain debts and to pay them immediately when due, this is binding only as between the parties. This division, however, is not binding upon the third party creditors who are not parties to the lawsuit. This is unavoidable unless every creditor (e.g., MasterCard, Visa, etc.) is actually made a party to your suit and even then, the court would probably make one party primarily liable and the other party secondarily liable. The only protection is by way of indemnification, that is, if Spouse A is obligated to pay a bill, but does not do so and the creditor goes after Spouse B has the right to sue Spouse A to recoup those funds. Sure this is not a very good solution, but it is the only practical one available. While a lien can be placed against one spouse’’s property, to assure the payment by that spouse of court-ordered debts, most parties and judges will not agree, to so indefinitely tie up a person’’s property in this respect.

Gary Kollmeier

Attorney • Mediator

501 S. Carroll Blvd, Suite B
Denton, TX 76201
(940) 387-8181
 

Alimoney/Court Ordered Maintenance in Texas

What is alimony?

Alimony is periodic payments from one spouse for the support of the other spouse.   Alimony is a term of art that usually refers to the payments of money on a periodic basis from one ex-spouse to the other ex-spouse.    Alimony as used in the Internal Revenue Code has specific requirements, and can be tax shifted from the Payer spouse to the Payee spouse, or the payments can be categorized otherwise.

Does the State of Texas have court-ordered alimony?

Yes, but it is referred to differently depending on whether it is ordered while a divorce is pending which is temporary spousal support, or if the support is court-ordered in a divorce decree which is "court ordered spousal maintenance," or if the support is agreed upon by the parties as part of the terms of a final court order, which is called "contractual alimony."   The parties can also agree on the imposition of Court ordered maintenance.

"Alimony" is spousal support, that is, funds paid by one spouse to and for the support of the other spouse.  Texas enacted a new Spousal Maintenance Statute effective only for actions filed after September 1, 1995 which only applies if the parties were married over 10 years or if the spouse from whom maintenance is sought was convicted of, or received deferred adjudication probation for a criminal offense that constitutes family violence within two years before the divorce is filed or which occurs during the pendency of the divorce suit.  This spousal maintenance is for a maximum of three years unless the former spouse is disabled, in which case payments may be extended indefinitely.  The maximum maintenance payable is 20% of the payer's average gross monthly income, or $2500.00 whichever is less.  The maintenance award is subject to reduction by filing an action to modify the support order.  Maintenance can also be terminated upon remarriage or conjugal cohabitation by the former spouse receiving child support.  Maintenance payments may be enforced by contempt and the court may render judgments for amounts unpaid.  Maintenance is not authorized between unmarried cohabitants under any circumstances, (i.e. common law marriages do not count). 

Note:  This area of law is complex and also relatively new in Texas, and you and your attorney must completely discuss whether or not the factors and eligibility requirements of court ordered spousal maintenance are available to either spouse in your divorce case.  In most cases, where the spouse can meet his/her minimum reasonable needs through employment there is minimal hope of court ordered maintenance.

Can either a husband or wife receive court ordered maintenance?

Yes.

Under what circumstances would the judge order maintenance in a final decree of divorce?

If either of the following circumstances exists:

A spouse is convicted of a crime or received deferred adjudication for a crime that also constitutes domestic violence against the spouse or the spouses family within 2 years of the filing of the suit, or while the divorce is pending; or

The spouses have been married for at least 10 years, and the financial resources of the spouse seeking maintenance are limited; and

The spouse seeking maintenance.

Is unable to be self-supporting due to an incapacitating physical or mental disability; or

Has custody of a child who requires substantial and continuous care, making it impractical and inappropriate for that spouse to work outside the home; or

Clearly lacks the ability to earn a living which would meet that spouse's minimum reasonable needs

Court ordered maintenance is a very complex subject and evolving area of Texas law, and should be discussed with your attorney.

Gary Kollmeier

Attorney • Mediator

501 S. Carroll Blvd, Suite B
Denton, TX 76201
(940) 387-8181
 

Custody

When do I need a custody order?

When you are separated and not divorcing, when you are divorcing or when a paternity or legitimation suit has been filed.  This type of order is called an order in suit affecting the parent child relationship.

In Texas, Conservatorship is the legal word to describe what most people refer to as “custody rights”

In Texas, Possession is the legal word to describe what most people refer to as “visitation rights”

What exactly does custody mean?

It means both legal rights and the time a child spends with each parent.

If there are minor children of the parties, all divorce decrees and settlements will contain orders governing the custody, possession and support of the children after the divorce.  A "child" is any minor who was born or adopted by the parties.  Once a child turns eighteen, the court's jurisdiction over the adult child ends (with several exceptions regarding child support, which are discussed below).

Forms of Conservatorship

The Texas Family Code speaks in terms of "conservatorship" of children, meaning the legal status between the children and their parents after the divorce as it relates to controlling the children's lives, having possession of and access to the children, and supporting the children.

The Code expressly sets out a non-exclusive list of the rights, privileges, duties and powers of parents.  In a nutshell, these rights and duties may be categorized into three areas: (1) the right to make major decisions regarding the children; (2) the right to have physical possession of the children; and (3) the duty to financially support the children.  Conservatorship orders divide these various rights and duties among the parents after the divorce.

Conservators

The Code refers to two types of conservators: (1) the managing conservator(s) and (2) the possessory conservator.  These terms are confusing, because the "managing" conservator is, generally speaking, the primary custodian of the children, while the "possessory" conservator is not the primary custodian of the children (the "possessory conservator" merely has some "possessory" rights to the children, e.g., visitation).

Managing Conservator

A "managing conservator" is generally given all of the rights, privileges, duties and powers of a parent, to the exclusion of all others, including the other parent, except as otherwise ordered by the court.  In short, the managing conservator is the primary custodian of the children, and (1) has the right to make all of most of the major decisions governing the children's lives, (2) has the primary physical possession of the children (custody) and (3) has the right to receive child support on behalf of the children.  As discussed below, there are now two types of managing conservators, "sole managing conservatorship" and "joint managing conservatorship".

Possessory Conservator

A "possessory conservator" is generally given (1) only a handful of rights and duties to make decisions for the children which can be exercised only when the children are actually in the physical session of the possessory conservator, (2) the right to certain limited times of possession of the children (often referred to "visitation rights"), and (3) the duty to pay the managing conservator child support for the benefit of the children.

Types of Managing Conservatorship

A managing conservatorship can be either a "sole managing conservator" or a "joint managing conservatorship" [Unless very extreme circumstances exist, a parent will be appointed the managing conservator of the children.  A non-parental managing conservator(e.g., grandparent) can only be appointed if the appointment of a parent would create an extreme danger to the child, or unless the parents agree.]

Sole Managing Concervatorship

A "sole managing conservatorship" exists when one parent alone is appointed the managing conservator of the child and given virtually all of the rights, privileges, duties and powers of a parent to the exclusion of the other parent.  In such event, the other parent will be the "possessory conservator".

Joint Managing Conservatorship

There is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child. (eff. Sept. 1, 1995).   A court may order that both parties are to be "joint managing conservators" of the children.  This is true, whether or not the parties agree to the joint appointment.  Thus, both parents are, jointly, managing conservators, and neither is a possessory conservator.  Joint managing conservatorship is often agreed to by the parties.  While a court is not required to appoint joint managing conservatorship, even when the parties request it, courts usually do so if both parties request it.

It should be noted, however, that joint managing conservatorships vary.  A joint managing conservatorship order may be either a "pure" or "real" joint managing conservator, or a joint managing conservatorship in name only, or any combination thereof.  A "pure" (real) joint managing conservatorship authorizes both parents to equally exercise jointly all of the rights, privileges, duties and powers of a parent.  On the other hand, under a joint managing conservatorship which exists in name only, while both parents are given the title of joint managing conservator, one parent is in reality, by the detailed terms of the joint managing conservatorship order, given all of the rights and duties of a sole managing conservator, while the other "joint managing conservator" is in reality treated like a possessory conservator.  There are advantages and disadvantages to going either route, which will be discussed with you by your attorney.

The Court will usually appoint one parent as the sole parent to furnish the primary and hence primary possession or the child.  Joint Conservatorship does not mean that each parent will have equal or nearly equal periods of physical possession.

What is the difference between the two forms of custody?

Except in the extreme circumstances which must be discussed with an attorney, each party will have certain legal rights as a parent. The legal rights of each parent does not determine how much time that the parent will have with the child. Some legal rights belong to both parents at all times (such as the right to consult with the child's schools or doctors); some legal rights belong to both parents and apply when the child is with them (such as the right to discipline the child or provide routine medical care); and some legal rights will be given to only one parent (such as the right to say where the child will live or to consent to surgery that is not an emergency.)

In some cases the court may determine where the child will live (i.e., Denton, Dallas, or Contiguous Counties) or what school the child will attend.

Besides the legal rights, each parent will have specific time either agreed or set out by the court when the child will be with them.

Does joint custody (or Joint Managing Conservatorship) mean the child lives half of the time with each parent?

No. Joint Managing Conservatorship is about legal rights, duties, powers, privileges, and not about where the child lives. There is very little difference today in the legal rights given to the child's parents no matter what the custody title is. The specifics should be discussed with an attorney.

Will I probably get joint custody?

Yes. It is now the preference in Texas, absent certain condition in which a parent has been found to be violent, convicted of family violence, or received deferred adjudication probation for family violence. However there can also be orders naming a sole primary managing conservator (sole custody) and possessory conservator (visitation) instead of Joint Managing Conservators. The specifics are somewhat complex and should be discussed with an attorney.

Does custody mean where my child will live?

More than likely, your child will live the majority of the time with the parent who is given the legal right to determine where the child lives. That person is called the "primary" Joint Managing Conservator , or in some circumstances, the Sole Managing Conservator. The other parent is called the "non-primary" Joint Managing Conservator, or, in some circumstances, the Possessory Conservator.

Will the type of Custody affect the Child-Support?

Child-support will be discussed later on in this section, but generally answer is "no."

Will the type of custody affect the visitation?

Generally, "not". No matter what the custody arrangement is called, the court's goal is to keep the child in a stable environment while encouraging a relationship with both parents. There are guidelines for visitation between each parent and the child which make provisions for weekends, spring break, father's day, mother's day, summer, Thanksgiving, and Christmas. The times with the child are shared, especially during the holidays. There are guidelines for visitation if the parties live within 100 miles of each other and another set of guidelines if the parties live over 100 miles from each other. The second set of guidelines are sometimes called "long distance visitation" and give extra time at spring break and in the summer. There can also be provisions for other religious holidays such Hanukkah or Ramadan. These parties can always make their own agreement about visitation. The court will order specific times in case the parties in the case the parties cannot agree.

The court will make provisions for visitation if the parent visiting and the child live within 100 miles or outside 100 miles from one another. The basic difference is that, outside of 100 miles, the visiting parent gets every spring break and more time in the summer and special provisions are made for weekends. The specifics should be discussed with an attorney.

What if I have to move after the order is signed by the judge?

If the court has restricted the county where the child can live and you have to move outside that area, you must receive permission from the court first or you could be subject to some severe penalties, even losing custody.   This type of restriction is called a geographic restriction.   A final court order must either contain a restriction or specifically allow the primary parent to move with further court intervention or control.   Litigation related to imposing or lifting a geographic restriction is generically called relocation litigation

If the court has not restricted where the child can live, you may move after giving notice to the other parent. If you move more that 100 miles away, the "long distance" visitation will take effect.

If you are the "primary" parent and you move outside the county where you lived at the time of the order, you will be required to pick up the child at the end of each visitation period at the other parent's home. If it is too far to drive, you will be required to pay for the airline or bus ticket for the child. If the child is under five years of age, you will also be required to pay for the cost of the transportation of the adult who will have to accompany the child.

How much child support will I receive or will have to pay?

The non-custodial parent (e.g., possessory conservator), who has less physical possession of the children, is generally required to pay financial child support to the primary custodial parent for the benefit of the children.  Although this can take many forms, child support usually consists of periodic (e.g., monthly) payments to the custodial parent.
Child support is generally set out according to a formula. The specifics should be discussed with an attorney.
Under Texas law, child support is presumed to be proper if set at the following percentages:

  • 20% of net resources for 1 child
  • 25% of net resources for 2 children
  • 30% of net resources for 3 children
  • 35% of net resources for 4 children
  • 40% of net resources for 5 children
  • Not less than 40% for 6 or more children
        

The legislature by statute has adopted Child Support Guidelines.  Basically, the amount of child support under the Guidelines will be based upon percentages (based on the number of children) of the support payer's "net resources" (as defined in the Guidelines).  For example, the guidelines require the payer to pay 20% of his "net resources" for one child, 25% for two children, etc, in addition to providing or paying for the health insurance for the children.  Most courts generally follow the guidelines in the usual case, absent unusual circumstances such as children who have special needs.  If a payer has more than one family, the child support for each child is reduced.  The child support guidelines currently cap out at $7,500.00 of net resources per month.  For obligors who earn more than $7,500.00 “net” per month, potential child support should be carefully discussed with the attorney.

Also, the Family Code requires that, all "earnings" shall be including in the computations for child support and whether withholding orders apply to persons or entities who owe the obligor money. 

Texas Family Section 101.011 provides that "Earnings" is defined as "any payment to or due an individual, regardless of source and how denominated.  The term includes a periodic or lump sum payment for:

  1. wages, salary, compensation received as an independent contractor, overtime pay, severance pay, commission, bonus, and interest income;
  2. payments made under a pension, an annuity, worker's compensation, and a disability or retirement program; and
  3. unemployment benefits.  Therefore, if the support payer is a salaried employee, or an independent contractor, the payer's child support (or a portion thereof) can be withheld from his wages by his employer or any other person or entity providing payments or income to the payer, and will be paid directly to the custodial parent.  Although the transmittal of the withholding order can be waived by your spouse, it rarely is by the court, and if the payer becomes over 30 days delinquent, then the wage withholding can become automatic upon request.

Child support is usually ordered to be paid through the Texas Child Support Disbursement Unit, located in San Antonio, Texas.  This agency is charged with recording child support payments, and transferring the payments to the parent entitled to receive them. The Disbursement unit then keeps a record of all payments received and forwards the payment to the child support recipient.  A major reason this is done is that, if the support obligor fails to pay support as ordered, the payment registry is presumed to be correct, and will either show timely and full payment of child support obligations, or will show delinquencies.

Other "child support" is also required in the form of a requirement to provide and pay for major medical health insurance for the children, orders requiring the payment of non-covered medical expenses, etc.   The Court can order that the employer deal directly with the parent with primary possession utilizing a court order entitled Qualified Medical Support Order.

Child support is due until the child turns eighteen or, thereafter, until the end of the school year in which the child graduates from high school or other qualified program.  IMPORTANT:  If a child is mentally or physically impaired to the extent of requiring continuous care, child support may be ordered to be paid indefinitely past the child's 18th birthday.  If this is the case with any of your children, be sure to inform your attorney.

How will the child support be paid?

It will be ordered to be paid monthly usually in one or two payments. Unless the parties agree or the court finds a good reason not to, the child support will be deducted from the salary of the person paying support, and is so, the correct amount will be deducted either monthly, bi-monthly, bi-weekly, or weekly, depending on the pay cycle of the employee.  The child support is usually ordered to be paid through the Texas Child Support Disbursement Unit, located in San Antonio, Texas.  This agency is charged with recording child support payments, and transferring the payments to the parent entitled to receive them. The Disbursement unit then keeps a record of all payments received and forwards the payment to the child support recipient.

What if the support is not paid?

You can ask the court for help in enforcing the order. That will be discussed in another section of this FAQ section entitled Enforcement.

 

Gary Kollmeier

Attorney • Mediator

501 S. Carroll Blvd, Suite B
Denton, TX 76201
(940) 387-8181
 

Enforcement of Court Orders

What is enforcement?

Enforcement is a separate lawsuit that is filed apart from other lawsuits to force a person to obey a written prior court order.  The person seeking to enforce the court order will be the Petitioner or Movant, and the person who is alleged to have violated the order is called the Respondent.

What orders will the court enforce?

In the context of family law the court may enforce orders dealing with the following matters:


  • Child Support and Medical Support Obligations
  • Possession/Visitation Terms
  • The property division ordered by a court in a divorce decree including the division of property and payment of certain debts.
  • Post-divorce spousal alimony (now called "maintenance").

How does a court enforce an order?

Usually court orders will be enforced by "contempt."  If a person is found in "contempt" of a court order, the judge may punish the person by ordering them to pay a fine, by sending them to jail, or both.  Usually the punishment is a maximum fine is $500.00 and 180 days in the County Jail.   Contempt punishment can either be concurrent or consecutive.   Concurrent means that all punishment time is served at the same time.  Consecutive means that jail punishment is stacked.   Any potential sentence of over 180 days allow the Respondent the right to a jury trial and a court appointed defense attorney, if the Respondent is indigent.

What is needed in order to make a court order for visitation or child support enforceable be contempt?

In order for a court order to be enforceable by contempt, it must use "command language" and be clear, specific, and unambiguous, so that the parties will know exactly what they have ordered to do or not to do. In the case of visitation, the court order must contain specific terms that command the party who has the children to "surrender" them to the other party at the start of the visitation period, and order the party to return the children at the end of the visitation period. Additionally, the order should identify the specific place where the children are to be exchanged, and state in specific detail the time when each period of visitation is to begin and end. In the case of child support, the court order must state the specific amount to be paid, to whom the payments are to be made, the date on which the payments are to begin, where the payment are to be made, and when the payments are to end (which will be either a specific date, or the occurrence of a specific event).

What if a court order is not clear and specific enough to be enforceable by contempt?

If a court order is not clear and specific enough to be enforced by contempt, the court can clarify the order. The court will then give the party an limited opportunity to obey the order.

What happens if a person is found in contempt of court?

When a party is found in contempt of court, the judge can order the party to pay a fine and/or order that the party be confined to the county jail.  Usually the punishment is a maximum fine is $500.00 and 180 days in the County Jail.   Contempt punishment can either be concurrent or consecutive.   Concurrent means that all punishment time is served at the same time.  Consecutive means that jail punishment is stacked.   Any potential sentence of over 180 days allow the Respondent the right to a jury trial and a court appointed defense attorney, if the Respondent is indigent.

If a party is found in contempt of court, will the judge always send them to jail?

No. If the party is employed, sending the party to jail may not be the best alternative because the party will almost certainly lose his or her job. For this reason if the judge sentences a party to jail, the judge may suspend the jail sentence. If the judge does so, the judge will impose various conditions which can include requiring the party to make specific payments (if the contempt involves failure to pay child support), ordering the party to pay attorney's fees, costs of court, and a fine. The judge can also place the party on probation (now called "community supervision") for a term not to exceed five years and can include a requirement that the party obtain counseling on financial planning, budget management, alcohol and drug treatment, or other matters that may have caused the person to disobey the court order. When a jail sentence is suspended, the judge will order the party to appear in court at a later date in order to determine if the party has obeyed the conditions of the suspended jail sentence. If not, the party will most likely be sent to jail.

Are there any limitations on what orders can be enforced by contempt?

Yes. For example, in divorce case it is common for the decree to include orders requiring a party to pay specific debts, liabilities, or obligations. Such an order may not enforceable by contempt because the law does not allow a party to be imprisoned for non-payment of a debt.  If the order requires payment of debt from funds or proceeds of property sale that exist at the time of the divorce, the order may be enforceable by contempt.   Also, in general property divisions provisions are only enforceable for a term of two years after the judge signs the decree of divorce.

Child support and Court ordered spousal maintenance is enforceable because it is not considered to be a debt.  Child support is a duty all parent owe to their children. 

If the property division order is not enforceable by contempt, are there other ways to obtain enforcement or collection. 

Yes.  For example, in an agreed decree, the payment of debts may be considered a contract, and as such is enforceable under contract law.   With property notice and hearing, the party not adhering to the contract may have to pay a judgment and attorney’s fees and costs to the wronged party.

Gary Kollmeier

Attorney • Mediator

501 S. Carroll Blvd, Suite B
Denton, TX 76201
(940) 387-8181
 

Modifying Custody, Visitation and Child Support

Can the terms of a divorce decree or custody order regarding children be changed?

Yes, through a process called Modification In Suit Affecting the Parent-Child Relationship.  To modify a prior court order, a Petition to Modify or Motion to Modify must be filed in the Court of Continuing Jurisdiction.   This is usually the county in which the current orders were filed.   If the children have lived in another county for more than six months, then the case may be transferred to the new county.  A modification action is just like a new lawsuit, and the Respondent must be served and filing fees must be paid.

What terms can be modified?

Conservatorship (Custody) - including change of status from Sole to Joint, from Sole to Sole, and from Joint to Sole.   Additionally, within each form of conservatorship, there are specific rights that can be awarded to a parent exclusively, independently, or jointly.

Terms of  Possession (Visitation) - The usual form of possession order is called a Standard Possession Order, which form is promulgated by the Texas Legislature and set out in the Family Code.   The Standard Possession Order has several options that affect when and how long possession by the non-primary parent will be.    Usually, these variations must be requested or elected at the time the order is requested or agreed to.  Variations from the standard possession order are available depending on the circumstances of the child and the needs of the parents.   Additionally, pick-up and surrender obligations, geographic restrictions, and other terms or restrictions of possession can be requested from the court.

Child Support - Texas uses specific guidelines to help judges and the parents determine child support obligations.  There are many variations and exceptions to the use of “guideline support.”    This is a very complex area of family law that seems to be always changing, and the consultation with an experienced family law attorney is advisable.  For instance, in September 1, 2007, the Family Code was amended to provide for an increase from the prior $6,000.00 net resources cap on support to $7,500.00, thereby allowing a modification to increase support in certain circumstances.

Health Support - In Texas, usually the parent providing child support also provides or pays for health insurance.   Each parent usually pays a share of the uninsured medical expenses, dental, orthodontic, mental health, and vision care expenses.  This amount is typically fifty percent each.    There are many variations and rules that apply in relation to health support obligations, and the consultation with an experienced family law attorney is advisable.

Which court can modify an order regarding children?

A request to modify custody, visitation or child support must be filed in the court which last entered an order regarding the children.   This is usually the county in which the current orders were filed.   If the children have lived in another county for more than six months, then the case may be transferred to the new county.   The Choice of County is called Venue.

Who can file a request to modify an order regarding children?

Generally, any person who is affected by the court order can request a modification.

What are the reasons (grounds) that a court will modify custody of a child?

The grounds for a change of custody are complex, change occasionally, and should be discussed with an experience family law attorney. Some of the factors the court considers are changes in circumstances of the parties of the child, an emergency concerning the child, if the proposed change would be positive improvement for the child, and if a change would be in the best interest of the child.  Specifics should be discussed with an attorney.

Do I have to wait a certain amount of time before I can file a motion to modify custody?

Except in the case of an emergency, you generally must wait one year after the initial custody order was entered by the court.   Support orders can be changed every three years, with certain restrictions, and upon a substantial and material change in circumstance of either parent, or the child.  Specifics should be discussed with an attorney.

At what age can my child choose where to live?

If a Motion to Modify is filed, a child 12 years or older may file a statement of preference by child with the court naming the parent with whom the child wishes to live. However, this choice is not binding on the court, because the court must also consider technical grounds and the best interest of the child.  Specifics should be discussed with an attorney.

How can I get legal custody if my child is living with me but the other parent has court-ordered custody?

If the person having custody of the child under the last court order voluntarily leaves the child in the possession of another person for a period of more than 6 months and the court finds that this arrangement is in the best interest of the child, the court may modify custody upon the filing of the proper motion with the court.  Specifics should be discussed with an attorney.

Can I get a temporary change in custody while the modification is pending?

Normally, a court cannot change a prior order during the pendency of a modification proceeds except under certain circumstances.  Specifics should be discussed with an attorney.

  1. There is a immediate need to change custody on a temporary basis because of an emergency effecting the health, safety or emotional well being of the child.
  2. There has been a voluntary relinquishment of the child for a period of more than six months preceding the filing of a modification action.
  3. The child has signed a statement of preference by child designating a choice of the parent seeking primary temporary custody.

How can I modify visitation with my child?

The court must consider some of the following and may consider all of the following:

  • a material and substantial change of circumstances since the last visitation order
  • The last visitation order is unworkable.
  • The person with custody moves outside of Texas or moves without giving proper notice to the person with visitation rights before the move.
  • A person with visitation rights repeatedly fails to exercise visitation with the child.

Specifics should be discussed with an attorney.

On what grounds will a court modify child support?

Child support may be increased or decreased depending on any change in financial circumstances of the parties or a change in the needs of the child.   Texas uses specific guidelines to help judges and the parents determine child support obligations.  There are many variations and exceptions to the use of “guideline support.”    This is a very complex area of family law that seems to be always changing, and the consultation with an experienced family law attorney is advisable.  For instance, in September 1, 2007, the Family Code was amended to provide for an increase from the prior $6,000.00 net resources cap on support to $7,500.00, thereby allowing a modification to increase support in certain circumstances.   Specifics should be discussed with an attorney. 

On what grounds will a court deny a request to decrease child support?

If the court determines that the obligor is underemployed or intentionally un-employed, or intentionally unemployed, the Court may deny a requested modification, even if the obligor is making less income.   Specifics should be discussed with an attorney.

Gary Kollmeier

Attorney • Mediator

501 S. Carroll Blvd, Suite B
Denton, TX 76201
(940) 387-8181
 

What are Grandparent’s and Close Relative’s Rights in Texas?

The legal rights of Grandparents in Texas is currently in turmoil, and may be one of the most complex and hard to understand areas of family law in Texas today.  Up until the landmark United States Supreme Court case entitled, Troxel v. Granville, of June 5, 2000, grandparents in Texas had liberal rights to sue for custody, possession or access.   Post Troxel case law and recent changes to the Texas Family Code have significantly modified and limited those rights.   It is important for anyone researching grandparent’s rights in Texas to understand that much of the law in this area has changed, not only because of the effect of  Troxel, but also because of significant and far reaching changes to the Texas Family Code in 2005.  Therefore, any older articles or old cases may be outdated and inapplicable to the current law.  It is important that any person interested in obtaining rights to another’s child have a consultation with an experienced Texas family law lawyer.    Gary Kollmeier has the experience to help grandparents keep or establish bonds with their grandchildren.

The relationships between children and their grandparents is important and generally in the best interest of the children.   Unfortunately, these relationships may be strained or eliminated because of divorce, separation or death.  When child custody and child possession is finalized, grandparents often lose the ability to contact and have an influence.   Historically in Texas, Grandparents have stepped in to fill the void in care and nurturing caused by divorce separation, drug and alcohol abuse, or mental illness of the biological parents.   Grandparents can play and important and supporting role to promote stability in the lives of children whose families are in deep conflict.

In a normal situation, there would be no need for court-ordered visitation or custody of children by grandparents. Grandparents and parents would work together to ensure and promote the normal family bonds and visitation by grandparents with grandchildren.   Unfortunately, this if often not the case, when parents separate or divorce.   There may or may no be justified and rational reasons, for a parent(s) to limit a grandparent's visitation with a grandchild.    Usually, when Grandparent’s rights are in issue, the grandparent is in conflict with not only with the parent of the child from the other side of the family, but, usually his or her own adult child, and hence loses contact or influence with the grandchild.    In Texas, a grandparent can always enjoy a relationship with a grandchild providing that at least one parent allow or facilitates the contact.   Sometimes, especially in the case of unmarried or deceased parents, the remaining parent who has custody or control of the child is resistant to allow the grandparent access or visitation. 

Overview - Grandparent Rights in Texas

Texas law provides a mechanism for a grandparent, and in some cases a close relative, to sue for custody (Conservatorship), Possession (visitation), or access of a grandchild.   However, in Texas, the rights of a grandparent or other close relative in relation to a child can only be explained in the context of what is sought to be accomplished.   Is it conservatorship (primary custody or some form of parental type rights), possession (visitation),  or merely access?

May I ask the judge for visitation with my grandchild?


Yes, under certain conditions. 

Under what conditions will a judge grant my request for visitation with my grandchild?

The judge may order visitation with the grandchild if:

  1. The parental rights of at least one parent have not been terminated; and
  2. Visitation with your grandchild is in that grandchild's best interest; and
  3. At least one the following is true;

Your child (a parent of your grandchild)

Has been incarcerated during the three month period prior to filing the petition; or,

Has been found to be incompetent; or

Is dead;            

The parents of your grandchild are divorced or have been living apart for at least three months; or

Your grandchild has been abused or neglected by a parent; or

Your grandchild has been found by the court to be child in need or supervision;

Your child (a parent of your grandchild has had his or her parental rights to your grandchild terminated; or

Your grandchild has resided with you for at least six months during the last two years.

Are there any circumstances under which I may not request visitation with my grandchild?

You may not request visitation with your grandchild, if the following circumstances exits:

  1. Your child's parental rights have been terminated by court order or death;
  2. Your grandchild's other parent's parental rights have been terminated by court order or death
  3. Your grandchild has been adopted by someone other than your grandchild's step-parent.

What are limitations of a non-parent’s rights to file a suit?

A significant and primary issue is whether the grandparent has standing, or the right to bring the suit and thereafter assert the rights they may have.    Usually, certain of circumstances must arise before a grandparent has the right to bring a lawsuit or intervene in a Suit Affecting The Parent-Child Relationship.   If the grandparent does not have the right to bring suit, it may not matter that the child’s best interest would not be met.   If a grandparent or other close relative has standing, then they may have the right to request conservatorship (primary custody or possessory custody, possession, (visitation), or access, (telephone, cards, letters, email, web based access).

In Texas, there have traditionally been three ways for a grandparent to seek custody or visitation with a grandchild.  Grandparents could file an original petition for custody, they could intervene in a pending lawsuit, or they could sue to request pure visitation.   Under Texas' unusual terminology (managing conservatorship, possessory conservatorship and possession of or access to a child), the rights conferred by each procedure differ.

It is important that any person interested in obtaining rights to another’s child have a consultation with an experienced Texas family law lawyer.    Gary Kollmeier has the experience to help grandparents keep or establish bonds with their grandchildren. 

Does my being a grandparent or close relative give me the legal right to file suit for possession, access, or custody of grandchildren or other children that I am related to?

It depends.   Depending on the rights being sought, there are other requirements which must be met before you have the right to file suit against the will of the parent(s).   The requirements to allow for a suit seeking managing conservatorship (custody) are much more stringent that if just seeking Possessory Conservatorship (visitation) or access.   It is critical to understand that the right to sue is different than what rights you can sue for.    The situations may greatly vary depending on the relief the grandparent or other relative is seeking and when in procedural  time line of the lawsuit the grandparent or other relative seeks that relief

If I am not interested in getting primary custody of my grandchildren or the child of another close relative, do I have the right to file an original suit seeking possessory rights over the children (secondary to that of the parent named managing conservator)?

It depends. Assuming the suit is filed against the will of the parents, unless the grandchild has lived with the grandparent for at least six months (as mentioned above), an original suit requesting possessory conservatorship (visitation) may not be filed by a grandparent, however, a grandparent or other qualified adult may file an intervention into a pending suit affecting the parent-child relationship.

If I do not qualify to file an original suit, are there any other avenues available to me wherein I have standing to request possessory conservatorship of my grandchildren or the child of another close relative?

Usually, yes.   A grandparent or other qualified adult may intervene in a pending suit affecting the parent-child relationship seeking  possessory conservatorship of the children if: 1) the grandchild has lived with the grandparent for at least six months (as mentioned previously), or 2) the grandparent is found by the court to have had substantial past contact with the grandchild and the failure to appoint the grandparent as possessory conservator would significantly impair the child’s physical health or emotional development.

 

Assuming I have the legal right to file suit, what must I prove to be awarded primary custody (managing conservatorship) of the children who will the subject of the suit?

 

To be awarded managing conservatorship of child(ren), the person seeking the custody must prove: 1) that the appointment of the parents as managing conservators

(to the exclusion of the grandparents or the other close relative) would not be in the child’s best interest because the appointment would significantly impair the child’s physical health

or emotional development, and 2) the parents are unfit.

 

What if do not desire to make important decisions made on behalf of the grandchildren (those made by “managing conservators” and “possessory conservators”) and I just want to see them regularly, do I have any legal right to the access of my grandchildren?

 

A grandparent can be granted access to his or her grandchildren, against the wishes of the grandchildren’s parents, if: 1) at the time of the request at least one of the parent’s rights have not been terminated by court order; 2) access is in the grandchild’s best interest; 3) the grandparent’s own child (the mother or father of the grandchild at issue) has been in jail/prison for three months prior to filing or has been found by a court to be incompetent or dead or does not have court-ordered possession or access to the child; and 4) the parent is unfit or denial of access by the grandparent to the grandchild would significantly impair the child’s physical health or emotional development.

 

Are there any presumptions against a grandparent being granted custody of or having possession and access to his or her grandchildren?

 

Yes. There is a fundamental legal presumption that a parent, not extended family (including the grandparents), should raise his or her own child. The above is based on the presumption that a fit parent makes decisions in the best interest of his or her child.

 

 Can the above presumption be rebutted? If so, how?

 

Yes. The presumption that a parent should be appointed sole managing conservator, or the parents appointed as joint managing conservators over the children (to the exclusion of the grandparents), holds true unless: 1) it would not be in the children’s best interest because it would significantly impair the child’s physical health or emotional development, or 2) there is a finding of a history of family violence involving the parents.  The presumption that a parent not

appointed sole managing conservator or joint managing conservator should be appointed possessory conservator over the children (to the exclusion of the grandparents) holds true unless: 1) this would not be in the children’s best interest, and 2) it would endanger the physical or emotional welfare of the children.

 

What are the rights of related persons to sue for custody or possession of a child?

 

Recently, the Texas Family Code was amended to expand the class of persons who could obtain custody (conservatorship) of a child.  The right to seek custody of a child has been extended to a specific class of adults related to the child within the third degree of consanguinity.  “Third degree of consanguinity” means a child’s parents, brothers and sisters, grandparents, and great-grandparents, aunts and uncles by blood. Gary Kollmeier has the experience to help related persons and grandparents keep or establish bonds with their grandchildren.

 

In addition, Texas law now also provides certain persons within the third degree of consanguinity (in termination cases great-grandparents are excepted) to seek custody of a child when the Texas Department of Family and Protective Services (Child Protective Services) has obtained the judicial termination of the child’s parent’s rights, provided that suit is filed within ninety days from the date of the termination.

 

Gary Kollmeier

Attorney • Mediator

501 S. Carroll Blvd, Suite B
Denton, TX 76201
(940) 387-8181
 

Bankruptcy Issues

 

How does filing bankruptcy affect child support collection?


Filing for bankruptcy does not allow a party required to pay child support to be relieved from that obligation. However, filing for bankruptcy does automatically stop collection activities on a support order. Since there are legal procedures that must be followed in order to lift the stay, or to allow collection activities to go forward, it is crucial to hire an attorney who has expertise in bankruptcy law.

 

Does my divorce decree protect me from having to pay a joint debt if my ex-spouse files bankruptcy?

If you have jointly made debts during the marriage with your ex-spouse, even though the divorce decree orders the ex to pay the debt, you can still be held accountable to pay it and it is possible that your ex can discharge or escape having to pay it. If you find out that your ex has filed bankruptcy and you had joint debts that were handled under your divorce, there is a way to attempt to keep the ex from discharging that debt. You should seek legal advice to find out about your rights under these circumstances.

Copyright  ©  2005 by Gary Kollmeier.  All rights reserved.  You may reproduce materials available at this site for your own personal use and for non-commercial distribution.  All copies must include this copyright statement.          

 
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