Document Sample
                   FAMILY LAW”

               CHRISTOPHER M. LAKE
         Bruneman, Lake, Griffin & Westhoff, PLLC
            15455 N. Dallas Parkway, Suite 440
                  Addison, Texas 75001
                Telephone: (214) 744-4440
                Facsimile: (214) 744-4441

                  State Bar of Texas
                   July 16-18, 2009
                   Galveston Island

                      CHAPTER 28
                               CHRISTOPHER M. LAKE

In 2003 at the age of 33, Chris Lake was initially honored by his colleagues as one of the youngest "Texas
Super Lawyers" in the state when the average age for achieving such recognition was 54. Lake has been
honored to have been voted and named a Texas Super Lawyer each year since that time.

Board Certified in Family Law by the Texas Board of Legal Specialization, Lake has written articles and
lectured at various venues across the state on family law topics including child support issues, temporary
issues arising in divorce, use of mental health professionals in custody disputes, business valuation
methodologies, creative dispute resolution and the use of discovery in litigation.

Growing up in Dallas and after swearing that he would never attend Southern Methodist University, Lake
earned both his undergraduate and law school degrees from SMU. He has also taught at SMU's Dedman
School     of     Law      in    the     intensive     writing     program    called     "Lawyering."

Lake prides himself on the fact that his greatest referral sources have proven to be his former clients. "I
hope that is because my clients know that we try to be intelligently aggressive about achieving their goals
while            being           as            cost            effective          as           possible."

A child of divorce himself, Lake strives to creatively develop long-term solutions for families experiencing
one of the worst life-experiences that divorce can cause.

  Board Certified in Family Law, Texas Board of Legal Specialization, 2003

Bar Admissions:
 Texas, 1995

  Southern Methodist University School of Law, Dallas, Texas, 1995

  Southern Methodist University, Dallas, Texas, 1992
“The Ten Things Every Attorney Should Know About
Family Law”                                                                                                                                                 Chapter 28

                                                              TABLE OF CONTENTS


II.     AVOID A GRIEVANCE: CALL THE WORST . . . FIRST! . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

        INTO EFFECT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

        HOME STATE SLAM DUNKS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

        LINGO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

VI.     GRANDPARENT RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
        A.   Custody Rights: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
        B.   “Visitation” & Access Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5


VIII.   RELOCATION – THINGS CHANGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

IX.     CUSTODY: THE IMPACT OF A CHILD’S PREFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

        TAKES EFFECT 9/1/09!!! . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

“The Ten Things Every Attorney Should Know About
Family Law”                                                                                                      Chapter 28

“THE TEN THINGS EVERY ATTORNEY SHOULD                            society, remember our ethical mandate to encourage
KNOW ABOUT FAMILY LAW”                                           reconciliation. We may never stop all of the bad lawyer
by Christopher M. Lake & Holly Frymire Griffin                   jokes, but if we each recognize the potential influence we
                                                                 possess during every divorce consultation, we just might
      It doesn’t matter if you are a patent lawyer, or a         get the last laugh . . .
criminal defense attorney, or whether you sit behind a
desk all day as corporate counsel. Because you spent a           II. AVOID A GRIEVANCE: CALL THE WORST
little time in law school and you tote around a bar card,               . . . FIRST!
someone — either a family member, a friend, a friend-of-                Handling family law matters can be one of the more
a-friend, or a friend-of-a-friend-of-a-friend — will             rewarding experiences of your career. Helping to resolve
ultimately corner you and ask you about a family law             conflict, de-escalate tensions, and bring legal resolution
issue . . . if they haven’t already.                             to an emotional combat can create a high . . . but, let’s be
      Accordingly, the words that follow are intended to         honest, it can also drag you into the darkest corners of
provide a cursory primer of eight common family law              frustration. To deal with good people who are
issues frequently encountered in daily practice, and two         experiencing some of the lowest moments of their lives -
ethical reminders for your consideration here at Summer          - with their eyes and their hopes fixated on YOU to “fix
School.                                                          it” all - - can be overwhelming!
                                                                        Added to the normal stressors of practicing family
I.   ETHICAL CONSIDERATION: ETHICAL                              law is the fact that family law practitioners are more
     MANDATE               TO       ENCOURAGE                    likely than other lawyers to have disciplinary grievances
     RECONCILIATION                                              filed against them. The Texas Bar Association cites that
     Perhaps the most fundamental, yet overlooked,               family law, criminal law, and personal injury law account
ethical tenet of family law is the explicit mandate of “a        for more than three-quarters of all of the grievances that
lawyer’s obligation to encourage reconciliation.” See            are filed each year by clients. It does not take a large leap
TEX. DISCIPLINARY R. PROF’L CONDUCT 1.04 cmt. 9. As              in logic to recognize that it is the highly personal nature
the preamble to our disciplinary rules accentuates,              of the legal work that spawns these family law
“lawyers . . . play a vital role in the preservation of          grievances.
society.” And one basic way of preserving society is to                 The good news is that we can avoided many
be mindful of a lawyer’s potential influence on the              potential grievances!
preservation of a family.                                        Family law clients most often complain that their lawyers
     Consider the numbers . . . and their possible               do not communicate with them, by not responding to
meaning. William Bennett first published his Index of            telephone calls or letters, by ignoring information
Leading Cultural Indicators in 1994 and has recently             provided by them, by not explaining legal proceedings or
been updated. In his initial work, he measured the               documents, by not keeping them informed about the
societal changes between the 1960s and the 1990s.                status of their cases, or by not providing them the
During that 30-year period, the American population              information they need to make informed decisions.
expanded by 41%, the gross domestic product tripled,             Failing to communicate violates Rule 1.03 of our RULES
and the total spending by the federal government at all          OF PROFESSIONAL CONDUCT.
levels increased more than five-fold. And during that                   The remedy is simple: communicate!
same 30-year period, virtually every indicator of social                The high percentage of grievances filed against
stability and moral health dramatically shifted in a             family law lawyers does not mean we are more unethical
negative direction. Violent crime increased more than            than other lawyers. Rather, it reflects the reality that the
500%. Teen suicide tripled. And the divorce rate in the          average legal consumer purchases family law services. It
United States of America more than doubled, which gave           also reflects that family law practice involves constant
our nation the dubious distinction of boasting the highest       dealing with often legally-unsophisticated persons coping
divorce rate in the world.                                       with highly emotional issues who often cannot afford, or
     Our nations still sees approximately one million            can barely afford, legal services. It also reflects the often
children every year affected by a divorce filing. The            volume nature of our practices, serving clients who can
impact, some opine, is that divorce and family conflict          afford only the briefest consultation with lawyers, and
are the leading predictor in nearly every childhood              who thus must often deal with non-lawyer support staff
pathology                                                        . . . yet who often demand and expect "full service" legal
     So, when you consider the societal repercussion             representation.
resulting from the breakdown of the family unit in our                  The best advice I received before I started my

“The Ten Things Every Attorney Should Know About
Family Law”                                                                                                       Chapter 28

practice ~14 years ago was to call my least favorite client       agreement; however, a relatively recent Texas Supreme
back first! If you can’t call them, send them a very brief        Court opinion is providing hope for those who have been
e-mail telling them when you can talk. So, if you can’t           forlorn as a result of this post-mediation potential morass.
communicate . . . at least tell them you can’t                         Clarification has come! Texas judges may enter a
communicate. On some level, a client should appreciate            judgment in which the judge or attorney preparing the
the fact that they have hired a lawyer who is busy, and in        order, has added provisions, which have the effect of
demand.                                                           carrying out the intent and agreements of the parties. A
     Bottom line: Communicate!                                    judge may not supply additional terms, or sign an order
                                                                  containing additional terms, to which the parties have not
III. MEDIATED SETTLEMENT AGREEMENTS                               agreed, or that do not fulfill their intent and agreements.
      . . . AND CARRYING THE PARTIES’                             The parties do not have to agree in their Mediated
      AGREEMENTS INTO EFFECT                                      Settlement Agreements to all provisions that will be in the
      The intent of the State of Texas is to honor lawful         final order, so long as their agreement encompasses all
terms of agreements entered into, without interference or         the material terms of the agreement. Haynes v. Haynes,
modification of the terms by the Courts. “When a                  180 S.W.3d 927, 930 (Texas 2006). I n H a y n e s ,
consent judgment is rendered without consent or is not in         Husband objected to some provisions added by the Court,
strict compliance with the terms of the agreement, the            which were not in the Mediated Settlement Agreement.
judgment must be set aside. See Burnaman v. Heaton,               But, their Mediated Settlement Agreement had contained
150 Tex. 333, 240 S.W.2d 288, 291-292 (1951).” See                a provision that the order would follow the TEXAS
also Chisholm v. Chisholm, 209 S.W.3d 96 (Texas                   FAMILY LAW PRACTICE MANUAL forms.                      More
2006).                                                            specifically, the parties’ agreed to divide their estate 60
      TEXAS FAMILY CODE §§6.602(c) & 153.0071(e),                 (W)/40 (H), including division of stock options, which
each provide that when settlements have met certain               were non-transferable employee stock options through
criteria, such as containing a statement that the agreement       Husband’s employer. Therefore, the Court added
is not subject to revocation, is signed by each party and         provisions making Husband constructive trustee of the
attorney who is present, “a party is entitled to judgment         employee stock options, as well as providing detailed
on the mediated settlement agreement notwithstanding              procedures for the exercise and division of the stock
RULE 11 of the TEXAS RULES OF CIVIL PROCEDURE, or                 options. Husband objected that he did not agree to be
another rule of law.” However, a judge may decline to             bound by these additional duties and responsibilities and
enter a judgment based on a Mediated Settlement                   that the Court was impermissibly adding to their
Agreement if the court finds that: “there has been family         agreement terms which were not agreed to. The Court
violence and it impaired the party’s ability to make              quoted from a prior case in its Court, McLendon v
decisions and the agreement is not in the child’s best            McLendon, 847 S.W.2d 601, 606 (Tex.App.–Dallas
interests.” TEXAS FAMILY CODE §153.0071 (e-1)(1)(2).              1992), writ denied), that “terms necessary to effectuate
      For many years judges have seemed reluctant to              and implement the parties’ agreement do not affect the
allow the inclusion of additional language into decrees           agreed substantive division of property…” Haynes, at
and orders that result from Mediated Settlement                   930. The Court held that the terms added did not alter the
Agreements even though the additional language is                 agreement of the parties, were taken from language found
intended to clarify the intent of the parties. Generally,         in the practice manual, and therefore, the trial court did
the problematic scenarios have arisen when attempts are           not supply terms to which the parties had not agreed.
made by one side to breathe detail into a resulting decree
or order. An ensuing argument would result if (1) the             IV. UCCJEA & MODIFYING OUT-OF-STATE
additional language did not appear within the “four                    CUSTODY ORDERS: DEBUNKING THE
corners” of the Mediated Settlement Agreement, and (2)                 MYTH OF HOME STATE SLAM DUNKS
the parties did not now agree to the additional language.              There seems to be a common misconception about
Relying on a series of cases that suggested the trial             the impact of “Home State” and its impact on a
courts’ authority was extremely limited to provide                modification suit. The UNIFORM CHILD CUSTODY
additional language into resulting orders, many final             JURISDICTION AND ENFORCEMENT ACT (“UCCJEA”) is
decrees and orders lacked specificity because of the              codified within Chapter 152 of the TEXAS FAMILY CODE
simple fact that not all of the specific terms of the             and defines that a child’s “home state” is:
agreement made it into the Mediated Settlement
Agreement. The vagaries of mediation are such that it is               the state in which a child lived with a parent or
simply impossible to flesh out all of the terms of a final             a person acting as a parent for at least six

“The Ten Things Every Attorney Should Know About
Family Law”                                                                                                         Chapter 28

     consecutive months immediately before the                      In short, this section prohibits Texas courts from
     commencement of a child custody proceeding.                    automatically modifying Oklahoma’s original custody
     In the case of a child less than six months of                 determination, unless the Oklahoma court first
     age, the term means the state in which the child               determines that Oklahoma no longer has continuing,
     lived from birth with a parent or a person                     exclusive jurisdiction [when (a) no one seems to have a
     acting as a parent. A period of temporary                      “significant connection” with the original decree state
     absence of a parent or a person acting as a                    and there is no longer substantial evidence in that state;
     parent is part of the period.                                  and (b) the child, the child’s parents, and any person
                                                                    acting as a parent do not presently reside in the original
and there is no question that a child’s home state                  decree state], or that Texas would be a more convenient
determines the jurisdictional basis for asserting an initial        forum.
custody determination. In other words, home state                         It is important to understand that Texas is not
clearly controls where an original proceeding is                    authorized to determine whether Oklahoma has lost
maintained.                                                         jurisdiction.    Exclusive, continuing jurisdiction is
      Herein lies the potential confusion . . . home state is       determined solely by the Oklahoma court system — the
not automatically outcome determinative for determining             only exception is when the child, the child’s parents, and
jurisdiction of a modification case.                                any person acting as a parent do not presently reside in
      What seems to happen with some regularity is this             Oklahoma. In such an instance, Texas courts have the
— if you ask a family law practitioner where a                      authority to conduct a hearing to determine whether
modification suit can be maintained . . . if the original           everyone has moved away from Oklahoma.
custody order was entered in Oklahoma . . . . but the child               Consequently, home state is not a slam dunk in a
has resided in Texas for 10 years . . . many times the              suit seeking to modify an out-of-state custody order.
analysis focuses solely on the child’s residence during the
last six (6) months. Such an analysis is flawed for the             V. SPECIAL APPOINTMENTS: GALS . . . AALS
following reasons.                                                        . . . AND AMICUS ATTORNEYS – KNOW THE
      In the example provided above, Oklahoma acquired                    LINGO
continuing, exclusive jurisdiction over the child 10 years                Since the original codification of the TEXAS FAMILY
ago. And under our UCCJEA scheme, Oklahoma’s                        CODE in 1973, judges have had the authority to appoint
continuing jurisdiction is exclusive! Therefore, assuming           guardian ad litems in suits affecting the parent/child
no “emergency” exists, §152.203 controls the analysis               relationship. In the years following its inception,
that would lead the determination of whether Texas                  litigation challenging the constitutionality of the
should rightfully acquire jurisdiction:                             guardian ad litem statutes resulted in the codification of
                                                                    further statutes creating the special appointment of
JURISDICTION TO MODIFY DETERMINATION.                               attorney ad litems who were charged with the obligation
                                                                    to “represent the interests” of children.
     Except as otherwise provided in Section                              Many of those whom were appointed as attorney ad
     152.204, a court of this state may not modify a                litems found it difficult to discern the true nature and
     child custody determination made by a court of                 scope of their roles — were they to purely advocate for
     another state unless a court of this state has                 the child’s stated objectives? (if such objectives could
     jurisdiction to make an initial determination                  even be meaningfully articulated), or were they to
     under Section 152.201(a)(1) or (2) and:                        advocate for the child’s best interests, as that attorney ad
                                                                    litem personally opined?
     (1) the court of the other state determines it no                    With the primary intent of protecting and safe-
         longer has exclusive continuing jurisdiction               guarding children within our state, the state legislature
         under Section 152.202 or that a court of this              ultimately promulgated a third specie of child advocate:
         state would be a more convenient forum under               the amicus attorney to more clearly distinguish the
         Section 152.207; or                                        various roles of those individuals being specially
     (2) a court of this state or a court of the other state        appointed to custody matters to better serve our
         determines that the child, the child's parents,            children’s best interests.
         and any person acting as a parent do not                         Here are the basic differences with which you
         presently reside in the other state.                       should be familiar:

“The Ten Things Every Attorney Should Know About
Family Law”                                                                                                 Chapter 28

    GUARDIAN AD LITEMS – Section 107.001 of                   VI. GRANDPARENT RIGHTS
    the TEXAS FAMILY CODE defines a guardian ad               A. Custody Rights:
    litem as a “person appointed to represent the
    best interests of a child.”     By definition, a             At present, a grandparent has a limited number
    guardian at litem cannot be an attorney unless               of options in the event he or she is seeking
    appointed to serve a dual role as a guardian ad              custody of a grandchild. A grandparent’s first
    litem and as an attorney ad litem. A guardian                step is to determine whether he can maintain
    ad litem is not a party to the suit but is entitled          standing under the fourteen categories of the
    to conduct an investigation to determine the                 general standing statute, §102.003 of the
    best interest of the child. A guardian ad litem              TEXAS FAMILY CODE. The most typical
    is copied on all pleadings and may be                        applicable categories under this statute would
    compelled to testify as to their                             be §§102.003(a)(11), 102.003(a)(13) or
    recommendations relating to the best interest of             102.003(a)(9). Section 102.003(a)(11) gives
    the child.                                                   standing to a person with whom the child and
                                                                 the child’s guardian, managing conservator, or
    ATTORNEY AD LITEMS – An attorney ad litem                    parent have resided for at least six months
    is focused on advocating the wishes of their                 ending not more than ninety days preceding the
    client, after determining the competency of the              date of the filing of the petition if the child's
    client, instead of an investigation into the best            guardian, managing conservator, or parent is
    interest of the child. Even though a guardian                deceased at the time of the filing of the
    ad litem is not a party to the suit, a guardian ad           petition. And §102.003(a)(13) gives standing
    litem cannot be excluded by the Rule and is                  to a relative of the child within the third degree
    entitled to remain in the courtroom during a                 of consanguinity (which would include a
    trial. In re K.P.C., 142 S.W.3d 574 (Tex. App.               grandparent) if both parents of the child are
    – Texarkana 2004, no pet.). A guardian ad                    deceased at the time of filing.             Under
    litem is required to attend all legal proceedings,           §102.003(a)(9), a grandparent can maintain
    but may not call or question a witness unlike an             standing if he has had “actual care, control, and
    attorney ad litem who may participate in the                 possession of the child for at least six months
    litigation to the same extent as an attorney for             ending not more than ninety days preceding the
    a party. While a guardian ad litem’s role                    date of the filing of the petition.”
    centers around what is in the best interest of the
    child, an attorney ad litem shall follow “the                In the event that a grandparent does not fit into
    child’s expressed objectives of representation.”             any category under the general standing statute
                                                                 (i.e., §102.003), the next step in the analysis is
    AMICUS ATTORNEYS – An amicus attorney’s                      to determine whether he or she can maintain
    role is to advocate the best interest of the child           standing under §102.004(a), which applies to
    while taking into account the views of the                   all cases filed on or after September 1, 2007.
    child. While a amicus attorney is focused on                 Under this section, the grandparent must offer
    the wishes of their client, there is no attorney-            proof that: 1) the child’s present circumstances
    client relationship with an amicus attorney and              significantly impair the child’s physical health
    a child does not direct the activities of an                 or emotional development, or 2) that both
    amicus attorney.       An amicus attorney’s                  parents, the surviving parent, or the managing
    communications with the child are not                        conservator or custodian either filed the
    confidential, but the attorney does have                     petition or consented to the suit. In short, the
    discretion to keep the communication private                 child’s parents must either agree to the suit
    unless deemed necessary information for the                  being filed, or the grandparent must show that
    court to have in making the best interest of the             the child’s present living environment
    child determination.                                         significantly impairs the child’s physical health
                                                                 or emotional development. There is no
                                                                 question that this is high burden of proof for a
                                                                 grandparent to show “significant impairment.”

“The Ten Things Every Attorney Should Know About
Family Law”                                                                                                            Chapter 28

In the event that a SAPCR is currently pending, then a                dispute on an agreed basis without resorting to judicial
grandparent may request leave of the court to file a                  intervention except to have the court approve the
petition in intervention requesting either managing                   settlement agreement, make legal pronouncements and
conservatorship or possessory conservatorship, if (and                sign the orders...” See TEXAS FAMILY CODE § 6.603(b).
this is a very big if) there is satisfactory proof to the court       Collaborative law is about solving problems instead of
that appointment of a parent as a sole managing                       winning the battle in court.
conservator or both parents as joint managing                                  With notice to the court 30 days before trial that
conservators would significantly impair the child’s                   the parties intend on using collaborative law procedures
physical health or emotional development. While a                     in an effort to settle a case, a court is then prohibited from
grandparent may not file an original suit to seek                     setting hearings, a trial, imposing discovery deadlines and
appointment as a possessory conservator, he may do so                 may not dismiss the case. Within 180 days of filing the
by intervening in a pending lawsuit.                                  written agreement indicating the choice to use
                                                                      collaborative law, the parties shall file a status report with
B.    “Visitation” & Access Rights                                    the court. If no settlement is reached within a year of
      A biological or adoptive grandparent may request                notice of collaborative law choice, another status report
possession of or access to a grandchild by either filing an           must be filed with the court along with a motion for
original suit, or a suit for modification. And, a biological          continuance. The court shall grant this motion for
or adoptive grandparent may request possession of or                  continuance if in the status report the parties indicate a
access to a grandchild in a suit filed for the sole purpose           desire to continue with the collaborative process. Not
of requesting the relief, without regard to whether the               until two years from the date the collaborative process
appointment of a managing conservator is an issue in the              begins does the court again have authority over the case
suit. However, a step-grandparent may not request access              and the ability to set the case for trial or dismiss the case.
under this statute. The threshold determination requires                       In the event a case fails to settle in the
a grandparent to show that at least one biological or                 collaborative law process and the parties return to
adoptive parent of the child has not had that parent’s                litigation, the parties must obtain new counsel after the
parental rights terminated, and that the grandparent’s                required withdrawal of the collaborative counsel.
child who is the parent of the grandchild: has been
incarcerated in jail or prison during the three-month                 VIII.    RELOCATION – THINGS CHANGE . . .
period preceding the filing of the petition; has been found                     Considering the increasing mobility of our
by a court to be incompetent; is dead; or does not have               society, and considering the economic environment
actual or court-ordered possession of or access to the                forcing many families to look for employment beyond
child.                                                                their normal communities, it seems self-evident that
                                                                      relocation cases shuffle through our respective law office
VII.     COLLABORATIVE LAW – SOLVING                                  doors with some frequency.
         PROBLEMS . . . DIVORCING WITH                                          Relocation issues can be contested in a divorce
         DIGNITY                                                      but most often occur during a modification case when
         Relatively new to Texas Family Law is the new                one party requests to move away with the children. The
divorce paradigm of “collaborative law,” which                        TEXAS FAMILY CODE does not contain specific provisions
challenges the way that we have allowed divorcing                     addressing relocations. However, there are several
parties to resolve their conflict. For many decades, our              statues that are relevant when relocation is an issue:
system has ostensibly been resigned to the fact that the                        §153.001(a)(1), Public Policy of Frequent and
litigation model was the only method of winding-up the                Continuing Contact;
marital relationship and all of its accompanying issues .                       The public policy of this state is to:
. . such as children.
         Texas law now offers an alternative approach to                        (1) assure that children will have frequent and
resolving marital discord. It may seem apparent that not                            continuing contact with parents who have
all cases may merit a collaborative approach, but should                            shown the ability to act in the best interest
not all of our prospective clients be made aware of this                            of the child;
         Accordingly, you should know that collaborative              §153.001(a)(3), Public Policy to Encourage Sharing
law is a “procedure in which the parties and their counsel            Rights and Duties;
agree in writing to use their best efforts and make a good                     The public policy of this state is to:
faith attempt to resolve their dissolution of marriage

“The Ten Things Every Attorney Should Know About
Family Law”                                                                                                       Chapter 28

          (2) encourage parents to share in                       enough to meaningfully express a parental preference . .
              the rights and duties of raising                    . and what is the import or impact of asserting such a
              their child after the parents have                  preference?
              separated or dissolved their                              Take Randy F. Kandel, Ph.D., J.D. on one side of
              marriage.                                           the spectrum. Kandel is an attorney practicing in New
                                                                  York, an anthropologist, and an Adjunct Professor at
§153.137, Standard Possession Order is Presumptive                John Jay College of Criminal Justice of the City
Minimum Schedule; and                                             University of New York. In her law review article
                                                                  entitled: Just Ask the Kid! Towards a Rule of Children's
     The standard possession order provided by                    Choice in Custody Determinations, 49 U. Miami L. Rev.
     Subchapter F constitutes a presumptive                       299 (Winter, 1994), Kandel posits that “the stated
     minimum amount of time for possession of a                   preference of any child over the age of six years should
     child by a parent named as a joint managing                  be legally dispositive of that child's custody.”
     conservator who is not awarded the exclusive                       Texas certainly does not agree.
     right to designate the primary residence of the                    Until 1991, the TEXAS FAMILY CODE required
     child in a suit.                                             judges to consider the preference of a 14-year-old child.
                                                                  Then, in 1991 the Texas Legislature amended the statute
§153.002, Best Interest of the Child is Primary                   and lowered the age to 12. And as a result of this on-
Consideration.                                                    going debate as to a child’s individual efficacy, the
                                                                  legislature – once again – lowered the age that a child
     The best interest of the child shall always be               could meaningfully express a preference in 1999 to the
     the primary consideration of the court in                    age of 10.
     determining the issues of conservatorship and                      Since that time, the Texas Legislature has, again, re-
     possession of and access to the child.                       evaluated the age that a child can express a preference.
                                                                  Consequently, effective September 1, 2001, the age was
In the seminal case of Lenz v. Lenz, 79 S.W.3d 10 (Texas          raised back up to the age of 12. Accordingly, the
2002), Texas Supreme Court has held that “no bright-              §153.008 entitled “Child’s Preference of Person to
line test can be formulated” and that a trial court’s             Designate Residence” now reads:
discretion is extraordinarily broad and intensely fact
driven. In enunciating that no bright-line test exists, the            A child 12 years of age or older may file with
Supreme Court outlined various factors that should be                  the court in writing the name of the person who
reviewed when confronted with the issue of relocation.                 is the child's preference to have the exclusive
Some of those factors deemed relevant in relocation                    right to designate the primary residence of the
cases: non-moving parents involvement with the children                child, subject to the approval of the court.
and their activities, would relocation deprive the non-
moving party of regular and meaningful involvement;               This statute allows for the preference of a child over 12
potential travel arrangements, their convenience and              to be considered, but it clearly contains the qualifying
feasibility; relocating party’s motive; location and              language "subject to the approval of the court," which
involvement of extended family members; and the impact            reserves to the judge the discretion to ignore the child’s
of the move on the quantity and quality of the children’s         preference.
future contact with the non-moving party.                              So, in the scenario discussed above, William can
                                                                  voice his preference of which parent should be managing
IX. CUSTODY: THE IMPACT OF A CHILD’S                              conservator through a written statement filed with the
      PREFERENCE                                                  Court. However, the child’s preference is only one part
      One of the most misunderstood areas in family law           of a two-part test. The Court must also consider and
is the topic surrounding the child’s choice regarding             weigh what is in the best interest of the child. In doing
where to live. You may find yourself in a situation where         so, the Court will consider several factors, only one of
a friend who has gone through divorce asks you, “Now              which is the child's choice, such as the maturity level of
that William is 12 years old, I told him that he can choose       the child, the means by which the parent received the
to live with me. Is this true?”                                   child’s preference, the home environment that parent
      The answer is yes and no.                                   would provide, family violence history, and ability to
      An issue that has vexed both legal scholars and             care for the child.
legislatures alike is the issue of when is a child is old

“The Ten Things Every Attorney Should Know About
Family Law”                                                                                                    Chapter 28

X. STANDARD POSSESSION SCHEDULE                                   school regularly dismisses for the weekend. TEXAS
       SUMMER NUANCES :                       NOTE!!!             FAMILY CODE §153.317(3)-(8) goes on to provide for
       LEGISLATIVE CHANGE TAKES EFFECT                            some alternate expanded standard for other periods such
       9/1/09!!!                                                  as Spring Break, the major holidays, Mother’s Day and
       Until September 1, 2009, the Standard Possession           Father’s Day weekends, etc. Therefore, the Father’s Day
Order provides that Weekend Possession shall begin and            Weekend expanded alternate possession election, does
end at the same time whether during the school year or            occur during the summer, as the lone exception to the
during the summer. The time being from 6 p.m. to 6 p.m.           rule that there is no alternate possession options in the
Expanded standard possession under TEXAS FAMILY                   summer.
CODE §153.312 is to be designated by the conservator at                To view HB No. 1012 go to:
the time or before the order is rendered, and if chosen 
allows the conservator to take possession at the time             egSess=81R&Bill=HB1012
school is dismissed, until 6p on Sunday. TEXAS FAMILY
CODE §153.312(b)(2)(B).             “(a)…the possessory
conservator shall have the right to possession of the child
as follows: (1) on weekends throughout the year
beginning at 6 p.m…and ending at 6 p.m…except that, at
the possessory conservator's election made before or at
the time of the rendition of the original or modification
order, and as specified in the original or modification
order, the weekend periods of possession specified by
this subdivision that occur during the regular school term
shall begin at the time the child's school is regularly
dismissed and end at 6 p.m. on the following Sunday…”
       Under TEXAS FAMILY CODE §153.317(1), an
alternate possession time may be elected for expanded
access to begin, at the time school is regularly dismissed,
or at any time between the time the child’s school is
regularly dismissed and 6 p.m. Also under TEXAS
FAMILY CODE §153.317(2), an election may be made that
“the period of possession may be set in the standard
possession order to end at the time school resumes.”
Both elections for alternate possession must be made
before or at the time of the rendition of the order.
       Beginning September 1, 2009, possession times will
still be 6 p.m to 6 p.m. during the regular school year and
summer. There still will not be an option for expanded
standard applicable to summer possession periods. In
fact, the expanded standard provision in §153.312 has
been deleted. The only provisions for alternate or
expanded standard elections is now in the newly
expanded TEXAS FAMILY CODE §153.317(a)(1)(2),
which provides for a variety of options during the school
year. For example: a possessory conservator may elect
to take possession of the child when school is regularly
dismissed for the weekend or may elect to end the
weekend possession at the time school resumes after the
weekend, or both. The same is true for Thursday
possession periods. Therefore, there is no longer an
election for possession to begin at a time in between
when the child’s school regularly dismisses and 6pm.
There are two options only for an alternate possession
time to begin, either at 6pm or at the time the child’s


Shared By: