Going thru the Big D & Taking Care of the GPs: Divorce & Grandparent Rights 2016

Jamie L. Taylor, JD Client Focused Family Law

The part she left out...

LEGAL ISSUES Choosing an Attorney Family Law Attorney Get an Attorney in Tarrant County Friends, Family & Professional Referrals or Client Reviews The consultation! Go to meeting prepared with information and questions The Representation Agreement, The Retainer, The Fees Consider interviewing more than one attorney

We only wish we were Psychic What will the Judge Do? (What are my odds?) How long will the case take? How much will the case cost?

Choosing A Process Uncontested Cases Agreed (Kitchen-Table)... Not So Agreed Litigation Court Structure... Agreeable to Highly Contested Collaborative Law Contract, Structure, Informed Consent, No Discovery... But my cousin’s gardener's friend’s brother did Mediation before the Divorce... Or Did His Own

Paperwork within the Process Original Petition for Divorce & Who Files What is a Temporary Restraining Order & Why I need one Service or a Waiver Court procedures – The Court, Temporary Orders, Discovery, Motion Hearings, Pretrial, Mediation, Trial, Post Trial Proceedings Ancillary Paperwork Including Other Professionals

Temporary Orders

The Temporary Order T emporary restraining orders and Mutual Injunctions Temporary use of Property Temporary Payment of Obligations Conservatorship & Possession Child Support and Spousal Support Can you Divide Assets? Can you sell property? Discovery issues – how will you find out what’s there?

What is Decided In My Divorce? Basic Info and Grant of Divorce Children’s Issues: Conservatorship, Possession & Access, Money Matters Property Distribution Assets, Debts, Sell of Property, Etc. Extras: Taxes, Spousal Support, The Lawyer Language

But What If We Agree? What Will The Judge Do?

Children Conservatorship (Custody) Joint Managing Conservator Rights and Duties Extraordinary Circumstances Parenting Classes My Family Wizard, Apps Possession & Access Std, Ext’d Std, 50/50, Custom Summer & Holidays Child support Support guidelines When support ends What child support covers How other expenses of children are handled How to modify support Who claims children on tax return Medical Child Support Uninsured Medical Expenses

LEGAL ISSUES Property Division How personal property is divided (cars, furniture, jewelry) How real estate is divided (home, vacation home, rental property, time shares) How debt is divided (credit cards, personal loans, car loans, mortgages) How businesses are handled – marital property or separate, value, how other spouse is paid

Spousal Support, Spousal Maintenance and Alimony Code vs. Contract Who gets it How Much... For How Long Wage garnishment Offsets How alimony is taxed

Common Concern: Health Insurance Can health insurance be terminated before divorce is final? Can existing coverage can continue after divorce? Can the other spouse be ordered to pay for health insurance after divorce? How COBRA works – apply for it as soon as you can

Wrapping Up the Decree The Miscellaneous Tax Information Attorney’s Fees and Court Costs The Lawyer Language Orders to Execute Documents

Grandparent Rights: U.S. Constitution SMJ or Standing Statutory Requirements Then you get to the facts! Troxel v. Granville – United States Supreme Court – Evaluated Washington State Statute giving any person the right to petition a court for visitation with a child at any time if it was in the best interest of the child. Court Said: There is a presumption that a fit parent acts in the best interest of the child, and so long as a parent adequately cares for the child there is no reason for the State to interject itself into family matters and question the decision of such a fit parent. The Court DID NOT: (1) Require a showing of harm, (2) state nonparent visitation was per se unconstitutional and (3) did not explain the scope of parental due process

Texas Law takes Troxel to the Next Level: TEXAS SUPREME COURT The trial court MUST PRESUME that a fit parent acts in his or her child’s best interest when considering the rights of a third part against a parent’s rights. Standing Hurdles And Parental Presumption (Law are not uniform within different appellate regions) Standing Standing is a component of Subject Matter Jurisdiction and is a threshold issue in the ability to bring a suit in a SAPCR case. However, standing only ALLOWS the party to litigate the case and be heard – it does not guarantee any right to win or receive relief. Can be decided in beginning or decided at final trial depending on the facts

Standing to File Original Suit An Original Suit: Actual care, control and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petitioner A person with whom the child and the child’s guardian, managing conservator, or parent have resided for at least six months ending not more than 90 days preceding the date of the filing of the petition if the date of the filing of the petition if the child’s guardian, managing conservator, or parent is deceased at the time of the filing of the petition; Related within the third Degree of Consanguinity... If the child’s parents are deceased at the time of filing NOTE: No requirement to show harm or significant impairment to child’s physical or emotional health

Isn’t 6 months pretty clear? The court may not require that the time be continuous and uninterrupted bust shall consider the child’s principal place of resident during the relevant time preceding the date of filing the suit. Residence? – A fixed place of abode, Occupied consistently over a substantial period of time, Which is permanent rather than temporary Legal Residence and some visitation with the child do not qualify IF the child was up the actual care and control of another

Additional GP Standing May file an Original Suit if there is satisfactory proof that: The order is necessary because the child’s present circumstance would impair the child’s physical health or emotional development, or [The parents] file the petition or consented to the suit You cannot file an original suit requesting PC, but may have leave to intervene in a suit if: Standing as discussed, substantial past contacts AND you meet the impairment burden above

Parental Presumption Lewelling v. Lewelling Places a heavy burden on nonparent Parental Presumption is deeply imbedded in TX Law If the parent is adequately caring for the child there is no reason for the state to act or question the ability of the parent Showing the nonparent would be a better parent is not enough You MUST prove BY A PREPONDERANCE that the parent has engaged in specific acts and omissions that demonstrate that an award of custody to the parent would result in physical or emotional harm to the child

It is a question of fact: You don’t have to have blameworthy conduct Uprooting the child from a long term caregiver has been enough You are required to offer evidence as proof Lay witness testimony of opinion and observation is not enough Potential harm and theoretical threats are not enough Specific, identifiable behavior or conduct of a parent by act or omission along with evidence that it is likely to cause harm to the child

Possession and Access Overcome the parental presumption AND the GP must show they are a parent to a parent of the child and that parent (1) has been incarcerated for three months, (2) has been found incompetent by a court, (3) is death, (4) does not have actual court ordered possession or access Closeness is not enough Contact is not enough Sadness not enough unless you can PROVE b/c of the grandparent and not the loss of the parent

Specific Cases NOT discussed Termination of the Parent Child Relationship Adoption of a Child and Standing to File Grandparents named as a party with rights in a prior court order Grandparents with conferred standing... Tricky! Protective Orders... Standing is much easier Conflicting case law after the death of a parent when there is an existing order in place