Temporary Restraining Orders in Divorce and Custody Cases

In the Texas Family Code, Temporary Restraining Orders may be issued by the court to protect the parties, to protect the children, to protect the property, and to provide for child support and fees to one or both parties for support of the children and property. These orders are signed based on limited information provided to the court when they are petitioned for. They become effective on the party once they are served upon that party. They only remain active for 14 days unless extended, unless the parties agree to an arrangement, or unless the judge makes temporary orders after an evidentiary hearing.

It is important that once you are served with a Temporary Restraining Order, you read it completely. Violation of such an order can result in negative consequences and can even ruin a case. There should always be a hearing date somewhere on the Temporary Restraining Order or attached to it. If you are served and you do not show for the hearing, the court may proceed without you and orders will be issued that may result in negative consequences for you.

The evidentiary hearing provides an attorney with little time to prepare and discover evidence against the other party. A court will usually try to do its best to keep in place whatever arrangements have been there for children, they will do their best to preserve the property and evidence, and they will ultimately do their best to protect the children and provide for their temporary support.

If you have been served with or need a temporary restraining order in a divorce or child custody dispute, call Attorney Ricardo A. Barrera with The Barrera Law Firm, PC at (956) 428-2822.

 

Enforcement of Court Orders Relating to Custody or Visitation

The Texas Family Code provides a way to make sure court orders are enforced when a person is breaking those orders. That means, that the court may impose civil fines, jail time or probation, make up time and attorney fees against the party that is found to have violated this orders of the court for custody or visitation.

The violations must be proven through clear and convincing evidence. Each violation of the court order must be clearly stated in the Petition for Enforcement that is filed with the court. It is best to keep a journal and calendar with notes on visitation, not only to use in the event there are violations, but to defend yourself if you are accused of such violations. Police reports are best when an officer is called to the residence to see that the attempted pick up of the child was timely and the child was never produced. That police officer may be ordered to testify in court in order to back up your claim.

In the alternative, police reports may also be used to show there was no pick up at all. Security cameras are inexpensive these days and may be used to show the parent never showed up at all. It is important that these camera record accurately date and time because a good lawyer will always challenge those recording based on that. The important thing is to make pick up and drop off as normal as possible, so use good judgment about how to employ the techniques mentioned here.

Should you need any help with enforcement of court orders, call Attorney Ricardo A. Barrera with the The Barrera Law Firm, PC at (956) 428-2822.

Fathers’ Rights in Texas Child Custody Suits

Fathers custody rights divorce attorney
A divorce doesn't have to mean a father loses custody of his children.
More women may be out in the workforce and more men may be opting to stay home with their children, but the truth is that society hasn’t completely accepted the idea of males as caregivers. If you are a father who wants custody of your children as well as child support, you’ll need to have a compelling argument regarding why the court should take your side.

In Texas, the law encourages the court to award both parents with joint custody. But judges in individual child custody cases look at a number of different factors when considering which parent should receive the conservatorship of the child. These can include:

  • the child’s age
  • the child’s preference in cases where he or she is 12 or more years old
  • the age, health and character of each individual parent
  • the relationship each parent has with child
  • the nature and extent of each parent’s involvement with the child
  • the ability each parent has to provide for the child
  • evidence of child abuse

Of course, the main question courts will ask is “what’s in the best interest of the child?” Fortunately, none of these factors favors either parent. Best of all, the Texans Equal Rights Amendment which went into effect in 1973 specifically states that courts must look at the qualifications of the parent and not the sex when determining custody.

Statistically, men who ask for sole custody of a child in a divorce will now receive it at least 50% of the time. So the odds of you becoming your child’s conservator are equal to those of the child’s mother. The attorneys at The Barrera Law Firm are experts in the field of divorce law. We will defend your rights as a father. Contact us today for a free initial consultation.

Children 12 and Over Have a Say in Court

Managing custody can be difficult for the child. They're faced with many circumstances to consider.
Managing custody can be difficult for the child. They’re faced with many circumstances to consider.

The Texas Family Code provides that children 12 and over can communicate directly to a judge relating to his/her preference on where they want to live.

However, the judge ultimately decides whether it is in the child’s best interest to change the primary residence of the child based on his/her preference.

A number of factors have been found in Texas courts to not be in the best interest to change the residence of the child, despite an expressed preference:

  1. Child gets into fight with custodial parent relating to reasonable and rational rules of the home.
  2. Child has more freedom to be at home alone, go out on weekends, or be in a relationship with another person.
  3. Child wants to leave the home because they get into disagreement with a sibling.
  4. Child has alcohol or drug problem and wants to leave the home to enable continued drug use.
A number of factors have been found in Texas courts to be in the best interest to change the residence of the child, along with the expressed preference:
  1. Grades suffer and no action is taken by custodial parent.
  2. Child has been previously alienated from other non-custodial parent and would benefit from change of residence.
  3. Child has half siblings or step-siblings that the child wishes to bond with at non-custodial parent’s home.
  4. Custodial parent is not active in the school and extracurricular activities of the child.
It benefits a parent wishing to have custody of a child, 12 and over, to consult a qualified attorney to submit a written motion to the judge, along with ample reasons, specifically referenced in a motion to modify custody (with evidence) to back up why the change in primary residence is in the best interest of the child.

The Barrera Law Firm in Harlingen provides legal services to Harlingen, Brownsville, McAllen and the Rio Grande Valley. Call (956) 428-2822 for legal assistance.

More Facts About Divorce in Texas and Child Custody

Divorce can be upsetting for childrenUnder Chapter 153, of the Texas Family Code, a court may not discriminate as to who would be the better custodial parent because of gender of the parent or marital status of the parent.

Rights of Parents at All Times

Unless limited by court order, a parent has at all times some of the following rights:

(1) to receive information concerning the health, education and welfare of the child;

(2) access to medical, dental, psychological and educational records of the child;

(3) to consult with a physician, dentist or psychologist of the child;

(4) to consult with school officials concerning the child’s welfare and educational status, including school activities;

(5) to attend school activities;

(6) to be designated on the child’s records as a person to be notified in case of an emergency.

Custody Battles and What Goes On

A custody battle can be intense. Evidence and witnesses will be examined by a judge and/or jury to determine what would be in the best interest of the child or children. Nothing is held back. The court may appoint personnel to assist the court in ensuring that the case is properly mediated beforehand and the children have their own attorney to look out for their interests. This may become costly and time consuming. Therefore, a key battle is usually getting temporary orders established that designate custody, access and possession.

Interference with Child Custody

A parent may not deny access and possession of a child with the intent to deprive or violate a court order under Texas Penal Code, 25.03. If a parent does so, and does not return the child within three days of the commission, the person perpetrating the crime may be found guilty of a State Jail Felony.

Motion for Enforcement and/or Contempt

A parent may request the court make additional orders to make up periods of possession that were denied, provide monetary compensation for causing one part to expend time and money to follow court orders, and to impose jail time or probation periods for failure to follow court orders.

Call The Barrera Law Firm, PC, at 956 428 2822 to get a free consultation, in order to inform of you of what your rights are and how to get started with taking action so that you are definitely an undeniable part of your child’s life.

Six Important Suggestions for Divorcing Parents About the Start of the School Year

Many parents who are in the midst of a divorce don’t often realize how important a role education can play in the awarding of custody. That makes this week, the first week of the new school year, particularly important to such parents.

Let’s look at why.

Family court judges are tasked by the Texas Family Code to make decisions based on their assessment of what is in the “best interest of the child.”

Courts look at parental involvement in school activities

Education has a big part to play in this because when a parent is given custody by the court, they are provided a number of rights such as:

  • Receiving information from others concerning the education of the child;
  • Making decisions concerning the education of the child;
  • Gaining access to educational records of the child;
  • Consulting with school officials concerning the child’s welfare and educational status, including school activities;
  • Attending school activities.

Therefore, this means that parents who take an active and responsible role in their child’s education will be seen in a favorable light by the court in a custody dispute.

The start of the school year is very important because it provides a renewed opportunity for divorcing parents to demonstrate their involvement in their child’s education.

Actions to take to improve school involvement

We can then make the following suggestions which are relevant, not only to divorcing parents but is good advice to all parents:

1. Attend teacher-parent meetings.  Go so far as to request monthly meetings to follow your child’s educational progress and learn of any difficulties so they can be addressed.

2. Attend your child’s extracurricular school activities, if possible.

3. If your schedule does not allow for school meetings or visits, then be involved with the school through email.  Check the school’s website regularly for activities.  Email the teacher to be in touch.  There is software online that can be downloaded to assist in this.  Download it and use it.

4. Have and enforce a schedule at home that is conducive to your child’s schooling.  This means having bedtime rules, a time set aside for homework and playtime, and keeping these things regular.

5. Be active in checking over your child’s homework assignments. Don’t hesitate to look through their backpack, looking for school announcements, papers or assignments.  Contact the teacher or school should you find something that they should know or something you have questions about.  Help your child and school authorities.

6. Know your children’s friends and their parents.  Invite them to birthday parties or attend birthday parties, but meet them.  Go with your child to visit them.  It is important that you be actively interested and knowledgeable about your child’s doings and who they are in contact with.

It is important to understand about the above that the courts are not looking for harsh discipline.  They are looking for an environment that will help the child grow and develop their potential.

A parent doing the above six things in a positive way may be seen in a more favorable light by the court.

 

Uncontested Divorce Texas – Pros and Cons

divorce attorney brownsville
If divorce is going to happen, contact a good divorce attorney to help things go smoother.
A divorce in Texas may be agreed upon by both parties, as to how property will be divided and as to how custody and possession of the children will occur. Uncontested divorces can be very useful in saving thousands of dollars in attorney fees, in saving much embarrassment from the community regarding personal and private information becoming a matter of public record, and in saving time from numerous hearings and hours in the courtroom.

However, a skilled attorney should be consulted despite the existence of a verbal “agreement for an uncontested divorce” between the husband and wife because bank accounts can be hidden, assets can be squandered or wasted on a “home wrecker,” and basic parental rights that are in the best interest of the child or children can be left out. In fact, in some “agreed” divorces, the other side is deprived of thousands of dollars in retirement benefits, spousal maintenance (Texas’s interpretation of a kind of alimony) and reimbursement claims (money owed to a spouse by the other spouse).

There are many pros and cons to getting an uncontested divorce. That is why a personal consultation is really needed so that specific legal advice can be provided on a case by case situation. Never let an attorney represent both parties in a divorce because of the high probability of a conflict of interest where the attorney has to make decisions that he or she knows or should know will benefit one side and deprive another.

Custody Modifications for Children 12 and Older

Divorce can be upsetting for childrenUnder Texas law, a parent that does not have the authority to designate the primary residence of a child 12 years of age or older may file a modification of conservatorship for the purpose of reviewing whether that designation should be changed.

An attorney may prepare an application for the court to interview a child 12 years of age or older regarding child’s preference of which parent should have the exclusive right to designate the primary residence of the child. However, despite the child’s preference, it is ultimately up to the court to decide. That means that although the child may have a totally valid preference as to who they would like to live with, it is ultimately up to judge to consider a number of factors that shed light on the best interests of the child.

Below are a few tips to observe:

  1. Ensure you are up to date on child support. While this is not a mandatory requirement, it can be considered by the court.
  2. Ensure that you have a good record of following the court’s order on visitation as well as the rest of the provisions.
  3. Do not bribe or try to persuade your child to prefer to live with you primarily over the other parent.
  4. Be active in investigating how your child is doing in school and how your child is doing physically or emotionally with the intention of setting up an environment for the child that is an improvement.

A child needs two parents in their life. Parental alienation will not be tolerated by Texas courts. In fact, South Texas courts are getting tougher and tougher on this. The right thing to do is to consult an attorney well before legal action is taken to increase the probability of success.

Child Custody, Fathers and Parental Alienation

Divorce is hard on children
Divorce is hard on children
One of the biggest myths in existence today surrounding divorce and child custody cases is that mothers always get custody of the children and fathers always pay child support.

While this stereotype might have been true years ago, today the law in Texas dictates that in most cases, courts cannot give preference to mothers in terms of awarding custody. Whether you are the mother or the father your child custody case will center around the “best interest of the child” standard and courts will take into consideration whatever factors it considers relevant to that flexible standard.

Parental alienation is the act of one parent distancing the other parent from the child emotionally, physically, or both. It does not matter whether this act is “intentional” or “unintentional.” The act itself is frowned upon by Texas courts and bringing evidence forward about this can assist your case.

Divorce and child custody cases can be stressful and emotional but the Barrera Law Firm is here to help you protect your rights and your children’s well being.

Texas has slightly different wording when it comes to custody cases. The Family Code establishes two types of “custody” determinations, namely legal conservatorship and access. While both parents can share legal conservatorship, courts tend to lean toward granting one parent more possession or access to the children than the other, unless the two parents can agree ahead of time on a 50-50 split or some other mutually desirable arrangement, which will ultimately have to be approved by the court as in the best interest of the child.

Ideally the mother and father can come to an agreement around conservatorship and access to avoid a messy, drawn out legal battle. When your rights are at stake you need an experienced divorce and custody attorney on your side. The Barrera Law Firm understands the ins and outs of child custody cases and can help you plan a strategy that will protect you and your children.

Here are some of the factors that could influence the court in making a “best interest of the children” decision in your case:

  • Emotional welfare of the children (this includes emotional bonds between you and your children, affection, etc.)
  • The respective capacity of either or both parents to provide for the educational and religious upbringing of the children
  • The ability of each parent to financially support the children
  • The past stability of the home or homes
  • The permanence of the existing or proposed home or homes
  • Moral character of each parent
  • Mental and physical health of each parent
  • The home, school, and community record of the child
  • The child’s preference, especially if the child is at least 12 years old
  • Each parent’s willingness to promote a relationship between the children and the other parent
  • Domestic violence

5 Social Myths About Divorces and Child Custody Cases

Divorce is difficult
Call The Barrera Law Firm for help with a divorce.

Myth #1: I’m the father, so I’m automatically going to be the one to pay child support.
Truth: Under Texas law, the court shall not discriminate because of the gender of the parent, but instead acts in the best interest of the child, taking in multiple factors regarding the well being and care of the child.

Myth #2: I’m entitled to half of whatever money or property we have at the time of the divorce.
Truth: Under Texas law, community property does not include property already owned before the marriage, property obtained during the marriage as a gift, and any property you inherited during the marriage. Also, the court can give more than half of the community property to one of the spouses by taking into account several factors in making a just and right division of the property, including whether the other party had an affair or physically abused the other spouse.

Myth #3: I’m entitled to alimony for the rest of my life.
Truth: There is no provision for alimony in Texas. In fact, Texas law provides for spousal maintenance under specific circumstances when the marriage has lasted at least 10 years and the financial support from the other spouse only lasts for a few years.

Myth #4: I’m not getting any child support because my husband is unemployed.
Truth: Under Texas law, child support continues to accumulate even when the person obligated to pay is unemployed and non-payment will result in accrued interest and possibly jail time.

Myth #5: I’m behind on child support so I can’t do anything about it when the other parent won’t let me see my child.
Truth: Texas law provides access and possession according to court order and any time that a parent blocks access, hides the child, or prevents visitation contrary to court order, then the other person may end up being in hot water with the court.

Call now for more information on what your rights are in a divorce or child custody case.