Once a court order is in place concerning possession and access, parties and their children tend to acclimate to the new schedule without too many problems.  However, if the possessory parent (the parent who does not have the exclusive right to designate the primary residence of the children) has an obstacle when regularly exercising possession, problems can arise. 

            First, it is important to understand that the possessory parent is not required to exercise each and every period of possession awarded to them in the order.  In fact, every order will contain a provision that orders the parties to notify the other parent when they are unable to exercise a period of possession.  

            Second, just because one parent notifies the other parent that they cannot exercise a period of possession, the other parent is not obligated to arrange their schedule to accommodate whatever portion of the period of possession can be exercised. 

            Most of the time, an inability to exercise possession and access is not going to be a problem as parents tend to fall into one of two categories: 1) a parent who exercises nearly every period of possession barring some medical emergency or natural disaster or 2) a parent who never exercises at all.  In these cases, there is a level of predictability for the parents and the children. 

            However, in the rare cases where a parent’s exercise of periods of possession is not as predictable, such as their work schedule is exceedingly difficult to predict, or subject to change, lack of predictability can become a problem for both parents. 

            Enforcement is likely to be a concern for both parents. 

Parents do not want to just sit at home and wait for a parent that may or may not show up.  However, not being at home for the designated periods of possession may make them vulnerable to an enforcement action, which can include fines, attorney’s fees, and even jail.

            Possessory parents who have an everchanging schedule cannot enforce their periods of possession unless they can guarantee that they are where they are supposed to be at when they are supposed to be under the order.  If they have a consistent issue with not being able to be there at the ordered time and place, there only solution may be to file a modification of the underlying order.

            Having open communication with the other parent can help alleviate these problems.  Establishing a consistent method of communication can be helpful.  Our clients have had used a variety of co-parenting apps, such as ourfamilywizard.com, to have a designated method of communication between them and the other parent.   Let the other parent know as soon as an issue arises and what your suggestion would be.  Be considerate of the other parent’s plans when asking for a change in schedule.  Figuring out a method that works for both parents can avoid future litigation.

          Before you even speak to an attorney, it may be helpful to know what court has jurisdiction over your divorce.  Knowing how the Judge in your case is likely to rule and what their pet peeves are can be incredibly beneficial to the presentation of your case so it is important to speak to an attorney who practices often in the jurisdiction in which you will ultimately file your case.  Read this article before you start reaching out to attorneys to make sure you are scheduling a consultation with an attorney who is going to be knowledgeable in your jurisdiction.

                                                              

           The general rule for jurisdiction in a Texas divorce is that at least one spouse must have been a domiciliary of Texas for the preceding 6 month period and a resident of the county in which the suit is filed for the preceding 90 day period.  This means that if the filing spouse is not a resident of Texas, a suit for divorce can still be maintained in Texas if he other spouse has been a domiciliary of Texas for the preceding 6 month period.  Generally, a person has been domiciled in Texas if they have resided in the state with the intent to make Texas his or her “fixed abode”.   The court will consider many factors in determining a person’s “fixed abode” including where a person spends most of their time, where they receive mail, what address is used to file a tax return, where does a person register their vehicle, whether they have a Texas drivers license, and where a person is registered to vote.  A number of factors are considered in determining whether one intends to make a residence a fixed abode so if you are not sure if you or your spouse has been domiciled in Texas for the requisite period of time, it is best to talk to an attorney. 

 

           There are several exceptions to the general rule outlined in the paragraph above for members of the armed forces.  First, time that a spouse spends in the armed forced outside of Texas is still considered residence in the State of Texas and in the county in which they lived.  If you are not sure whether your spouse was previously domiciled in Texas, look at his or her Military Paystub (LES) and see what it lists as their home state.  This will be a strong indicator that they are a domiciliary of Texas.  Second, a spouse is stationed in Texas can meet the jurisdictional requirements despite the fact that they may not intend to make Texas their permanent residence as long as they have been stationed in Texas for the preceding 6 month period and in the filing county for the preceding 90 day period.  These exceptions provide some jurisdictional flexibility for members of the armed forces and their spouses.

Every order that requires one party (Obligor) to pay child support to another party (Obligee) will outline how the Oblligor is to make payments.  It will say the following:

Payment – IT IS ORDERED that all payments shall be made through the state disbursement unit at Texas Child Support Disbursement Unit, P.O. Box 659791, San Antonio, Texas 78265-9791, and thereafter promptly remitted to OBLIGEE for the support of the child.

As parties go through the process of a divorce, parentage action, or modification, they often soon learn, that it can take some time for the wage withholding orders to take effect.  As such a transition period often stretches the financial situation of both parties, the delay in receipt of child support can be a concern. Sometimes OBLIGORs take it upon themselves, to pay or give the child support directly to the OBLIGEE in an effort to make things smoother, to not be counted late, or to make sure that the parent with primary custody has the funds necessary to provide for the children. However, every order that obligates one party to pay child support will include the following provision:

No Credit for Informal Payments-IT IS ORDERED that the child support as prescribed in this decree shall be exclusively discharged in the manner ordered and that any direct payments made by OBLIGOR  to OBLIGEE or any expenditures incurred by OBLIGOR during OBLIGOR’s periods of possession of or access to the child, as prescribed in this decree, for food, clothing, gifts, travel, shelter, or entertainment are deemed in addition to and not in lieu of the support ordered in this decree.

So, by doing what the OBLIGOR thinks is the “right” thing- i.e. paying the OBLIGEE directly, the OBLIGOR has put him or herself in danger of not receiving credit for the child support paid directly to the OBLIGEE.  By the time money starts coming out of their checks, the State Disbursement Unit will have the OBLIGOR already in arrears in their records. In order to get proper credit for the payments that were made directly, the OBLIGOR now has to rely on the OBLIGEE to execute an affidavit acknowledging that he or she has received the child support that was not paid through the Disbursement Unit and to send it with the proper information to the proper location.  Additionally, the OBLIGOR then has to rely on the Office of the Attorney General to properly credit the account in a timely manner. While all of this is happening, the Office of the Attorney General has the ability to take a number of actions to collect what in the eyes of the State is unpaid child support, including, but not limited to, the garnishing of your tax refund or placing a lien on property you may own.

There are steps that you and your attorney can take to protect or assist you during the transition phase and the time between the reaching of an agreement and the effect of a wage-withholding order.  However, unless you have previously discussed these options with your attorney and are satisfied that adequate protections are in place, send your payment directly to the state disbursement unit at Texas Child Support Disbursement Unit, P.O. Box 659791, San Antonio, Texas 78265-9791.

For more information, or to discuss what possible options would apply in your specific case, please consult an attorney to discuss the issue.  Also, the Child Support Division of the Office of the Attorney General of Texas has a very informative site that can be helpful and which also contains the forms mentioned in this blog. (https://texasattorneygeneral.gov/cs/welcome-to-the-child-support-division) (https://texasattorneygeneral.gov/cs/parents-and-guardians)>

Under the Texas Family Code, there are certain circumstances where grandparents can file a suit requesting the court to grant them possession of or access to their biological grandchildren. However, there are certain statutory requirements that the grandparent must prove before the Court can award possession and access to grandparents in Texas.

First, the grandparent(s) must prove that at least one of the child’s biological or adoptive parents has NOT had their parental rights terminated. If both parents have had their parental rights terminated, the grandparents will not be able to get possession of or access to the child without first proving that it will be in the child’s best interest that possession and access be awarded.

Second, the grandparent(s) must show by a preponderance of the evidence that the children’s physical health or emotional well-being would be significantly impaired if the grandparent(s) were not allowed to exercise possession of or access to the children. In Texas, parents are presumed to be able to act in the best interest of their children. As such, the grandparents must rebut that presumption by showing that there would be a significant impairment to the children’s physical health or emotional well-being. This is a fairly high burden – one that will not be met simply by showing evidence that the grandchildren love their grandparents and they would be sorely missed if they were not allowed to see their grandparents. A significant impairment has been found in situations where the grandparents have established a continuous relationship with the grandchildren and assumed certain parental responsibilities – i.e. taking the child to their doctor’s appointments.

Third, the grandparents must prove that they have been wholly denied possession of or access to the grandchildren by the parent. Just because the grandparents aren’t seeing the grandchildren as much as they would like does not mean that they have been wholly denied possession or access. Remember, the court presumes that parents can act in their children’s best interest. As such, parents are also presumed to be able to determine appropriate visitation for the grandparents without having the Court order a specific schedule.

Fourth, the grandparents must be able to prove that they are a parent of one of the children’s parents and that one of the following is true about that parent of the children:

  1. The children’s parent has been incarcerated for at least 3 months before the petition was filed;
  2. The children’s parent had been judicially declared incompetent;
  3. The children’s parent is dead; or
  4. The children’s parent does not have actual court-ordered possession of or access to the children.

There is no standard schedule that the court must order if a grandparent is awarded possession of or access to the grandchildren, but the court will typically order some weekend and holiday periods of possession for a grandparent who meets all of the above criteria.

It is important to keep in mind that the requirements listed above are only for grandparents seeking possession of or access to their grandchildren. The Texas Family Code details a different set of requirements when grandparents are seeking custody of their grandchildren.

Mary E. Ramos is a Board Certified Houston Divorce Lawyer and Family Law Attorney

Houston, TX- Oct 2nd, 2017: Ramos Law Group, PLLC, an award-winning family law firm, is pleased to announce the launch of their new and improved website. The Houston-based firm, founded by Board Certified Family Law Attorney Mary E. Ramos, has long been respected in the Texas legal community for their dedication to achieving positive outcomes for their clients. With the launch of their new website, Ramos Law Group anticipates continued growth and exceptional service for the greater Houston area.

The goal of the new website is to provide information about the full scope of our family law services, including uncontested divorce, contested divorce, high net worth divorce, adoption services, and mediation. The website also features an extensive blog which serves as an educational resource to answer some of the more challenging questions related to divorce and family law.

The website also features detailed biographies for Mary E. Ramos and her team of attorneys, including certifications, education, and professional experience. When visiting the new website, prospective clients can learn about the family law services offered, get information about the Ramos Law Group legal team, and schedule a consultation instantly.

Fortunately, the offices of Ramos Law Group were not damaged by Hurricane Harvey. In the days following the storm, they were able to provide room and supplies to members of the Harris County legal community at their offices about 3 miles from the Houston Courthouse.

About Ramos Law Group:

The Ramos Law Group, PLLC is a family law firm serving the region of Houston, Texas. They provide legal services specializing in divorce, mediation, child custody, child support, and adoption cases. The group emphasizes helping clients navigate the challenges important to their parent-child relationship.

Three Ramos Law Group attorneys have been recognized as being Houston’s top lawyers in 2015 through 2017 by H Texas Magazine, including board certified founder Mary E. Ramos. Mary has a passion for improving her family law knowledge through continuing legal education (CLE) and training. On average, she completes between 80 to 100 hours of continuing legal education per year.

The family law experts of the Ramos Law group are committed to reaching the best possible outcomes for their clients and families.

For more information about Ramos Law Group, visit their new website at www.ramosfamilylaw.com.


Press contact info:

Alfredo Ramos
Business Manager

1214 Miramar Street
Houston, TX 77006
(713) 225 6200
press@ramosfamilylaw.com

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