Articles Posted in Issues Affecting Families

Parental alienation in a Texas child custody case can escalate this already contentious part of a divorce, which has long been associated with parents trying to make each other look bad, into a level where one parent manipulates a child or children to reject the other parent without a valid cause.

While parental alienation has always happened in bitter divorce battles involving children, only recently have family courts in Texas begun to take notice and take action when this happens, as they realized that this could profoundly harm the child or children caught in the middle of a child custody case.

What is Parental Alienation in Texas?

In a formal sense, “parental alienation” happens when one parent intentionally manipulates the child (or children) to cause him or her to reject the other parent without a valid cause. In many cases, a parent will vilify and demean the other parent in front of a child, causing him or her to share the feelings of hurt and anger, which then strains the relationship between the child and other parent.

Why Does Parental Alienation Happen?

Oftentimes, parents intentionally or unintentionally alienate the other parent because they sincerely believe that having custody is what’s best for their child or children. Other times, parents will smear each other out of spite over the divorce or out of fear that their ex-spouse will cut them out of their child, or children’s, lives.

Under the Texas Family Code, the Court, which will always act in the best interest of the child, will try to ensure that both parents are equally involved in their child’s life. But the problem is that identifying parental alienation can be a counterintuitive process, as any judge or juror would tend to assume that children who dislike one parent must be doing so because of a valid reason. Assumptions would then point to abuse or neglect at the hands of the alienated parent.

Consequences of Parental Alienation

Conditioning a child to hate one parent through propaganda can be extremely harmful to a child’s development, as well as his or her emotional and mental well-being. For all intents and purposes, manipulating a child to believe that one parent has been abusive or unloving is tantamount to child abuse.

But as family courts continue to realize the reality of parental alienation, the burden of proving its existence during a child custody battle will ultimately fall on the shoulders of a capable family law attorney.

If you feel that you are being alienated from your child, a Texas divorce attorney will help you by recommending and facilitating these measures:

Calling in mental health experts to assess the psychological state of the child and your relationship with him or her
Seeking custody modification to move the child to a neutral dwelling
Seeking custody arrangements that let you maintain contact with the child
Requesting the court to order therapy as intervention
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A couple in Texas is considering filing for divorce to change their marriage status just so they can afford the medical bills of their six-year-old child.

Married for nine years, Maria and Jake Grey have arrived at the conclusion that a separation could be the most practical solution for their family. Their daughter Brighton suffers from a rare disease called Wolf-Hirschhorn Syndrome, a genetic disorder that causes delayed growth and development, impaired vision and hearing, seizures, heart problems, and kidney problems among others. The condition demands 24-hour care and expensive medical bills.

The Greys reportedly spend as much as $15,000 per year out of their pockets (representing 30 percent of their income) on Brighton’s health care needs—that’s on top of their health insurance. Because Jake, an army veteran, pulls in around $40,000 annually, the Greys are unable to qualify for Medicaid.

But there’s a solution, albeit a drastic one. If the couple were to divorce, Maria’s marriage status would change to a single, jobless mother of two, which, in turn, would make her eligible for state assistance. And while the family has tried to apply for state assistance in the past, they would be part of a huge backlog of tens of thousands of people, most of who have waited several years for relief.

This kind of financial planning is by no means new. The expansion of Medicaid under the Affordable Care Act (also known as Obamacare) provided health care coverage to all kinds of adults. In particular, it helped couples where one spouse was healthy and the other sick, ensuring that the sick person’s health care would not bankrupt the couple of their assets or make it difficult to keep their health insurance.

And so, some couples would seek a “Medicaid divorce” or a “medical divorce,” separating legally so that one partner could enroll in Medicaid and the other person could still keep their assets, whether it’s the family home, the car, or retirement. This option certainly has its appeal—it’s a vast improvement over drawing down on your home equity or retirement accounts until they run out.

Usually, couples who have filed for a Medicaid divorce stay together and continue to care and love one another—the divorce was only on paper. Still, this plan would still involve spending money and possibly cause family unrest. There’s also uncertainty as to whether a court would even approve this kind of divorce strategy.
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Anyone who has ever gone through a divorce knows that when a child custody battle is involved, the gloves tend to come off. Anything can and will affect the outcome of the child custody case—that includes factors like age, location, income, parenting ability, and relationship with the child. And if the child is a baby, this adds another layer of complexity to your case.

But what if one parent is breastfeeding the baby?

As is often the case with child custody cases in Texas, the answer to this questions rests on several factors. What’s clear, however, is that the complex nature of child cases highlights the importance of working with an experienced Texas child custody attorney as soon as possible. When a child is under three years of age, the Court will consider the following before finalizing a parenting plan for a child under the age of 3:

– The Status Quo – who previously provided care and/or the amount of contact between parents and child
– Any Expert Opinions – how the child will be affected by separation from either party
– Current Family Dynamics: the availability and willingness of parents to personally care for the young child
– Co-Parenting Relationship – the ability of the parties to share in the responsibilities, rights, and duties of parenting, how well the parents get along.
– The Child’s Individuality – child’s physical, medical, behavioral, and developmental needs
– Your Personal Relationships – the impact and influence of individuals, other than the parties, who will be present during periods of possession
– The Family Unit – The existence of siblings
– Geographic Considerations – how close or far apart the parents live (the geographic distance between parents)
– The adaptability of the child – whether a transition schedule is needed to help the child adjust
any other evidence of the best interests of the child.

Specifically, with breastfeeding, How Are Child Custody Cases Involving Breastfeeding Decided?

All states encourage the divorcing spouses to arrive at their own child custody arrangements, provided it’s in the best interests of the child/children.

In the case of a breastfed child, the parents may come to an agreement that lets the father visit the child but allows for breaks where the mother can come in to feed the baby every few hours or so. Alternatively, the mother could agree to pump breastmilk so the baby can stay with the father for longer periods of time. This is something more feasible as the baby gets older (and much more difficult with an infant).

Again, parents are free to negotiate visitation and parental arrangements as they see fit so long as it is what’s best for the child.

Does Texas Consider Breastfeeding in Child Custody Cases?

Because each state determines their own child custody laws, different states will have different views on considering a breastfed baby’s situation when approving custody agreements. States like Maine, Michigan, and Utah have laws that specifically require judges to consider whether a child is currently breastfeeding or of a certain age requiring sustenance and nutrition from breastmilk when determining parental rights and responsibilities.

Texas, on the other hand, does not have any such laws. But the Texas Family Code, however, does specify that unique consideration must be given to custody cases involving children below the age of three (as stated above). In other words, the court may exercise its discretion to decide what is best for infants when making an initial custody order. And because of the unique needs of the baby, the court will issue another order, which will take effect when the child turns three.

This also means that a judge’s decision can be swayed by how well the mother or father can argue their case for getting custody of the baby.

For example, in a custody battle, a mother can use the argument that breastmilk is best for babies, so she must have primary custody of the baby—at least until the baby turns three. On the other hand, the father’s attorney can argue that it is in the best interest of the baby to develop healthy attachments to both parents, and that awarding exclusive custody to the mother would inhibit the father’s right to bond with the child.

Cases involving babies can be the most challenging. New parents not only have to get used to adjusting with their new baby and becoming parents but also with co-parenting in less than ideal situations.
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When Texas parents get divorced, it is not unusual for one or both spouses to move to another city, state, or even country to begin life anew. Issues may arise, however, when one parent wishes to bring the child who is bound by an existing child custody order.

Under the Texas Family Code, a divorced parent’s ability to move with a child depends on the existing custody arrangement established after the divorce. So, before you make any decisions about relocating with your child, it’s imperative that you understand the basic factors and rules of child custody in Texas.

What Is the Custodial Arrangement?

While Texas law recognizes many types of custodial arrangements, the most common setup is joint custody, also known as joint managing conservatorship. The reason is simple—the Family Code assumes that awarding both parents with shared custody of the child/children is ultimately in their best interests, unless of course there is a proven history of abuse and violence in the family.

If the divorced parents are able to come up with a joint managing conservatorship agreement on their own, they may file a parenting plan stipulating the details of their agreement in court. Normally this parenting plan will also specify the child’s place of residence, which can be a specific geographical area in Texas, such as a particular county or any contiguous counties.

If the parents are unable agree on terms, the court may intervene and determine a custody arrangement that is in the best interests of the child/children. In many cases, the court’s custody orders will place restrictions on a parent’s ability to move with a child.

It’s for this reason that settling out of court with the assistance of a skilled Texas divorce attorney is important, as it gives you some control over the terms of the custodial arrangement.

What If There Is a Need to Relocate Outside the Agreed Place of Residence?

A parent can’t just pack up and move with their child outside of the agreed geographical area in their custodial agreement without first notifying the court. Under Texas law, the parent who wishes to move must seek a child custody modification from the court to change the initial custodial arrangement.

What’s more, even if the original parenting plan or custodial arrangement does not restrict the child’s residence to a specific area, a parent can’t just relocate with the child without informing the other parent. The other parent can file a motion to challenge the relocation and can even file a temporary restraining order until a hearing can be held.
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One of the bitter realities of going through a divorce in Texas is having to decide where to live while the divorce proceedings are ongoing and after things have wrapped up. There are no right or wrong answers here. Your decision ultimately depends on your specific circumstances, even if a certain option turned out well for a friend or family member.

Continuing to live in the family home may add to your personal debt and tax liabilities. On the other hand, moving out can mean paying more out of your pocket every month for rent or a new mortgage.

Here’s a closer look at your options and their pros and cons.

Continue Staying in the Family Home

If you have young children or currently don’t have the resources to move and find a new home, you can negotiate to continue living in the family home. Obviously, this means you can maintain a part of the quality of life you’re accustomed to, not to mention you get to stay close to your friends and family in the neighborhood through this tough time.

But this option also comes with issues. For starters, you need to prepare yourself financially for the costs of maintaining a home on your own, such as maintenance, cleaning, utilities, and taxes. If you are assuming the mortgage, you need to find out if you have the monthly cash flow and financial capability to refinance. Note that monthly mortgage payments cannot be counted towards spousal maintenance or child support.

Moving into a New Home

While many divorcees fight tooth and nail to continue living in the family home, there’s something to be said about starting life anew and moving into a new neighborhood, city, or state. And given the right real estate market, this can lead to an opportunity to build equity, serving as a launch pad towards greater wealth.

Of course, it goes without saying that buying a new home is expensive, so before making any final decisions, you want to be realistic about whether you can even afford the total cost of moving. These expenses include:

New furnishings
Home improvements
Transaction costs (e.g. down payment and settlements)
Closing costs
Insurance

If your joint accounts are frozen or the divorce proceedings are taking longer than expected to resolve, moving into a new home may not be the smartest option.

Renting

Renting is perhaps the most practical option on this list, especially when it comes to figuring out where to live while the divorce negotiations are ongoing. At a time when emotions are high and your life is going through major changes, the last thing you want to do is make any decisions that may damage your finances permanently.

Finding a temporary home also lets you buy some time and space to think about what to do next after the divorce. By not committing yourself to a mortgage, you have more options to consider.
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State legislators in Illinois have passed a new law that sanctions a new, team-based approach to divorces, encouraging a more amicable way to dissolve marriages.

Although divorces, by their nature, tend to be acrimonious, the Illinois Collaborative Process Act aims to create standards that divorce attorneys, as well as financial advisors and mental health professionals, can adopt and present as viable options to divorcing clients.

Chief among those options is a “collaborative divorce,” which has been described by its proponents as a clean, simple, and less-expensive way to end a divorce without ever having to go through a messy and emotionally-draining trial.

Collaborative Divorce Explained

Words like “clean” and “simple” are rarely associated with divorces, but that’s exactly the appeal behind a collaborative divorce.

In a collaborative divorce, the two spouses work with divorce attorneys with the intention of coming to the most amicable resolution to the case. The process also involves the participation of different collaborative professionals, such as neutral financial advisors, mental health professionals, and child specialists, all of whom are committed to supporting the couple and the family address their issues and arrange agreements for both parties to move on and start their lives anew as ex-spouses.

Collaborative Divorces vs. Litigation

Perhaps the biggest advantage of a collaborative divorce over litigation is that litigation usually devolves into blaming, incessant arguing, and trying to make the other side “pay.” In contrast, the collaborative process is about focusing on solutions by finding common ground between both parties.

In litigation, the goal is often to “win” the case by making your soon-to-be ex-spouse look as the bad guy. With a collaborative process, the goal is not to play the blame game and point fingers—it’s finding a solution that works for everyone involved.

When it comes to costs, while a collaborative divorce is usually less costly than a trial, it will still be expensive.

Will a Collaborative Divorce Work for You?

Of course, the question is: Does a collaborative divorce even work?

Short answer? It depends on the couple seeking it. For example, if you and your ex are the type of people who value your relationship and want to remain civil and maybe even continue on as friends after the divorce, then yes, a collaborative divorce might work for you.

But these scenarios are far and few between, especially when so many divorces involve infidelity and pain. But if you and your ex are willing to put aside your differences for the greater good of your family, a collaborative divorce can be a viable option.
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It’s common knowledge that long-term relationships tend to break down around Valentine’s Day, which comes at the midway point between the Christmas holidays and Spring, which in turn, represents the renewal of romance. But when it comes marriage and divorce, does this trend remain present? There was really no way of knowing, until now.

A new study conducted by sociologists from the University of Washington shows that divorces tend to spike during two particular months of the year. According to the researchers, their findings represent the “first quantitative evidence of a seasonal, biannual pattern of filings for divorce.”

According to a report on the University of Washington’s news portal, “The researchers analyzed filings in Washington state between 2001 and 2015 and found that they consistently peaked in March and August, the periods following winter and summer holidays,”

Accidental Discovery:

It’s worth noting this discovery was accidental by nature.

Initially, Julie Brines, an associate sociology professor, and Brian Serafini, a doctoral candidate, set out to study divorce filings within Washington State between 2001 and 2015. The goal was to understand what kind of impact the Great Recession of 2008 and 2009 had on marriages.

Instead, the researchers found a peculiar pattern in divorce filings, realizing that throughout their research timeframe, divorces seemed to spike in March and August.

Why March and August?

Brines and Serafini believe the explanation behind the spike in divorce filings in these months has something to do with lower expectations, that is, couples tend to avoid damaging their relationships out of a “domestic ritual” calendar that affects family behavior.

“People tend to face the holidays with rising expectations, despite what disappointments they might have had in years past,” Brines said.

“They represent periods in the year when there’s the anticipation or the opportunity for a new beginning, a new start, something different, a transition into a new period of life. It’s like an optimism cycle, in a sense,” he adds.

Think of it this way: most couples tend to avoid separating during the months leading to and after the holidays because they don’t want to spoil the family’s mood, or are holding on to the possibility that things may change for the better.

And let’s face it, nobody wants to spoil Thanksgiving and Christmas with news of divorce, and the months after the start of the New Year typically represents hope and fresh beginnings.

But this optimism might fade heading into March. Likewise, during the school break (i.e. June to July), the feeling of facing reality and disillusionment sets in, such that couples begin to weigh divorce once more.
Brines notes that theoretically, divorce filings should spike around February and July, but he attributes the one-month delay to the long process of seeking a divorce attorney.
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Tying the knot after a divorce may not be the first thing on most new divorcees’ minds, but it’s something that happens fairly often. After all, when couples split apart, their priority is to pick up the pieces of their lives and find a way to move forward.

For those who eventually find new love and decide to remarry, one thing these people often do not expect is how complicated the financial and estate planning issues that come with remarriage can be. It’s a problem that has caught many blended families off guard.

If you’re about to remarry or have just remarried, it helps to be aware of the following financial and legal issues you might encounter.

Shared Expenses, Income, and Assets:

If you and your new spouse have shared income and assets, these funds may be at risk if you are still financially tied to your former spouse. You and your new partner may have set up a joint account or two, where you can pool funds to pay for expenses like utilities, groceries, and mortgages—basically, family expenses.

Ask your lawyer about your financial obligations to your former spouse. It may be that you need to keep money separate to protect it from creditors, who are not necessarily bound by divorce settlements. This insulates your shared income from being involved in an old debt of your ex.

Community Property and Common Law Issues:

In a community property state like Texas, the law states that assets brought into the marriage or received individually by one spouse are owned by that spouse. However, any income or assets earned or acquired during the marriage has the presumption that it is the property of both spouses.

In contrast, a common law state requires ownership of assets to be controlled by titles and other ownership documents.

Consult your lawyer to prepare an estate plan that considers your home state, as well as any property that’s out of state.

Safeguards Against Remarriage:

Should your spouse remarry after you pass away, your assets may be at risk of being shared with that new family. Sometimes, what happens when a spouse pre-deceases a new spouse, is that none of the assets owned jointly go to children from a previous marriage. In this situation, the new spouse has the final say over who inherits these assets.

You can set up a Trust, which will ensure your assets are protected and allocated to your desired beneficiaries. A Trust will guarantee that inheritances go straight to your desired loved ones. A Trust can also indicate what happens to your home upon your death, and whether you want to leave it for the benefit of your surviving spouse or children.
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Texas county clerks with “sincerely held” religious objections may now delegate the task of issuing same-sex marriage licenses to other officials. According to state Senator Brian Birdwell, Texas Senate Bill 522 institutes a “statutory balance between the religious liberties of marriage-certifying officials and the rights of all couples to marry,” thereby creating an effective middle ground for the contrasting civil liberties in question.

SB 522 provides that county clerks may lend licensing authority to a “certifying official,” allowing them to produce a marriage license in their place. The bill requires that the concerned county clerk must notify the commissioners court of “sincerely held religious beliefs” that may go against their function and office.

These substitute officials may include an available judge, deputy clerk, or magistrate who is willing and able to certify the marriage license application, administer the oath, as well as the actual issuance of the marriage license.

Likewise, the bill prohibits action against officials who recuse themselves from their functions, stating that, “a civil cause of action may not be brought against the person based on the person’s refusal to conduct the marriage ceremony.” This provision effectively protects officials from administrative and civil penalties for refusing to administer these marriage licenses.

To prevent the possibility of same-sex couples facing additional obstacles after a state official delegates the task of issuing a marriage license, State Sen. Sylvia Garcia (D-Houston), amended the bill: “A commissioners court of a county in which the clerk has made a notification under Subsection (a) shall ensure that all eligible persons applying for a marriage license are given equal access to the process and are not subject to undue burden due to the county clerk’s refusal to certify the application for a marriage license, administer the oath, and issue the license.”

The amendment comes in response to the actions of Texas Attorney General Ken Paxton, who defied the Supreme Court’s decision legalizing same-sex marriage. In an advisory released to county clerks and judges, Paxton suggested that they may refuse to issue same-gender union licenses on the grounds of religious freedom, which in effect, places a burden on gender-deviant couples looking to get married.

The State Bar of Texas has made no disciplinary action on Attorney Paxton in spite of the ethics complaint filed against him by over 200 attorneys.

The seemingly tolerant move was not met with resounding applause from gender equality advocates, however.

Equality Texas, an Austin-based nonprofit supporting equal gender rights, asserts that the bill authorizes employees in public office to discriminate based on religious convictions, ultimately permitting them to cite religion as a basis for further discrimination.

Texas Freedom Network President Kathy Miller believes that the bill not only condones discrimination against same-gender couples but also “against virtually any Texan,” including previously divorced as well as interfaith couples.
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Reversing the previous decision of a lower court, the Texas Supreme Court ruled that under the Texas Occupations Code, licensed family and marriage therapists can diagnose the mental, behavioral, and emotional problems of their clients, provided their assessment falls under their expertise. Among other things, the decision allows family and marriage therapists to provide diagnostic assessments to couples going through a divorce, or spouses with troubled marriages.

Justice Jeffrey S. Boyd delivered the High Court’s decision on February 24, reversing an earlier ruling by the Third District Appeals Court done in favor of the Texas Medical Association.

The decision originates from a 1994 rule passed by the Texas State Board of Examiners of Marriage and Family Therapists, which permitted marriage and family therapists (MFTs) to offer “diagnostic assessment which utilizes the knowledge organized in the Diagnostic and Statistical Manual of Mental Disorders (DSM)…as part of their therapeutic role to help individuals identify their emotional, mental, and behavioral problems when necessary.”

Curated and published by the American Psychiatric Association, the DSM is the universal reference system for diagnosing mental health disorders in the U.S. and in many countries around the world. According to the Therapists Board, the ability to conduct diagnostic analyses through the DSM is at the heart of an MFT’s practice and services.

For example, diagnostic assessments play a crucial role in an MFT’s ability to:

Diagnose a client’s mental health problems
Develop a plan of treatment
Determine suitable treatment services
Provide recommendations to treatments with other health professionals

In 2008, the Medical Association disagreed with the rule and sued the Therapists Board and its directors. In its push for a court to invalidate the rule, the Association argued that allowing MFTs to conduct diagnostic assessments also allowed them to practice medicine without a medical license.

But the Board argued the rule specifically prohibits MFTs to provide medical diagnoses, or any other kind of diagnoses, outside their expertise. Rather, it permits MFTs to diagnose a number of nonmedical mental disorders related to psychological issues and experiences, such as, but not limited to:

Mood disorders
Depression
Anorexia
Bulimia
Anxiety
Behavioral disorders
Personality disorders
Addiction

The Travis County District Court ruled in favor of the Medical Association, invalidating the diagnostic-assessment rule on the grounds of exceeding the scope of the Therapists Act.

The Texas Supreme Court, however, saw otherwise. Justice Boyd considered the arguments raised by the Therapists Board, particularly the claim that the appeals court decision “makes Texas the only state to prohibit Licensed MFTs from performing an integral part of their profession that is essential to their ability to properly treat their clients.”

Boyd also refuted the Medical Association’s claim that the rule allowed MFTs to diagnose all kinds of mental disorders with no limits.
“(T)he rule itself specifically states that MFTs may only make diagnostic assessments ‘as part of their therapeutic role to help individuals identify their emotional, mental, and behavioral problems when necessary.’ Another Therapists Board rule explicitly limits an MFT to services ‘within his or her professional competency,’” the ruling reads.
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