New Texas Rules of Civil Procedure affects family law filings
The Texas Supreme Court has issued new rules changing the Texas Rules of Civil Procedure, specifically, Rule 21c dealing with privacy protection for filed documents. The most recent version of these rules was signed in December, 2013, and can be found by clicking here or on the Texas Supreme Court website. Make sure you are looking at the most recent version as the Tex. Sup. Ct. released another different version of these changes over the Summer.
These changes require, among other things, that any drivers license numbers, social security numbers, birthdays, home addresses of minors, bank account information, credit card information, or other financial account information be removed from a public document unless it's required to be in the document by another specific rule. You can leave this information in the document but it must have a stamp on the upper left side of the front page that says specifically "Notice: This Document Contains Sensitive Data." I have already been chastised by the good clerks of Travis County for not following this in my recent filings. Learn from my mistake and realize that yes, they are checking and following the new rules!
I have found that an inserted Word Art box with the necessary notice language on the top left of the first page usually solves the issue. Until the e-filing services create an easy check box for e-filers to otherwise notify the clerk of the sensitive nature of the filed document, this will have to do for the time being.
When drug use is an issue in a case, many Judges will order a drug test as a condition to visitation. Once a clean drug test is produced, then visitation can progress. The most common testing facility used by Judges in Travis and Williamson Counties is Austin Mobile Drug Testing. They offer hair and nail testing as well as the more standard tests and substance abuse assessments. The easiest and quickest way to get a test done is to contact them before arriving at their Round Rock location: 512-507-5983, 402 West Palm Valley Blvd, Ste. H, Round Rock, TX 78664. If you know drug use will be an issue in your case I have always found it better to come to court with your recent test results in-hand and ready to show the Judge.
De Novo Appeal - Rehearing from Associate Judges
The 2013 Texas Legislative Changes to Texas Family Code sec. 201.015 & 201.1042 & 201.2042 now shorten the amount of time a party has to request a rehearing from an Associate Judge's rulings. Associate Judges are typically employed for Child Support and Child Custody cases where the County and District Judges have hired a judge to sit and handle just those types of cases, thus freeing the District and County Judge's dockets for other matters. However, if you have your case decided by an Associate Judge then Texas allows you to request a rehearing, in essence a "do over," with the actual District or County Judge where your case is assigned.
The time period between the date of the hearing/order and the date you could request a hearing was the seventh working day after the associate judge makes the order and/or signs the written Order. On September 1, 2013, all cases heard and decided by the Associate Judge from that day forward will only have three working days from the date of the signed Order.
Moral of the story; file your notice of de novo appeal as quickly as possible if you want a rehearing and don't forget to specify specifically what issues you are contesting on the appeal. Conversely, if you want an associate judge's ruling to stick without hope of a rehearing, then you can always ask that the everyone waive the right to de novo appeal, which would completely cut off this option. Pro Se litigants out there, be wary of agreeing to such a request to "waive do novo."
How Old Must a Child Be To Stay Home Alone, in Texas?
There is no law in Texas that states a specific age at which children are automatically qualified to stay at home without a babysitter. The Texas Department of Family and Protective Services (AKA CPS) has provided on their website that many factors need to be considered before leavings your child unsupervised.
Adequate supervision is critical to keeping kids safe. An adult caregiver is accountable for the child's care and inadequate supervision can be a type of neglect (neglectful supervision). Here are some of things you should think about when deciding how closely to supervise a child:
The best advice is, if you have to wonder then better safe than sorry. Keep the babysitter/daycare on the payroll for another year and take comfort in the piece of mind you get knowing your child(ren) is/are safe.
Child Support, Increase in "cap" Upper Limits
In the past, the upper limit of a parent's income for child support purposes was limited to a monthly gross of $10,340 GROSS for employed persons and $11,074 GROSS for self-employed persons. Under the older Texas child support guidelines, that worked out to $7,500 NET monthly income. That meant that anyone making above that amount per month would not have it "count" for purposes of figuring your child support percentage. One child allows 20% of your NET monthly income, two children allows 25% of the NET, and so forth. For example, the usual "cap" for someone with one child under the old $7,500 per month is 20% of $7,500, or $1,500 in monthly child support. To go above these artificial "caps" you would need a very good reason why the child support should be set higher, i.e., continuing private school expense, medical needs of the child, etc.
Starting September 1, 2013, for all cases in front of a Judge on that day and going forward regardless of actual filing date of the case, the new "cap" limit is $8,550 NET per month. That works out to about $11,800 GROSS per month for employed individuals and $12,550 GROSS for self-employed individuals. Using the same above example, someone with one child would pay 20% of $8,550 or $1,710 per month in child support under these new "cap" guidelines.
This change is due to a new calculation from the Attorney General of the consumer price index and it's application to other child care cost data, which was all changed and recommended at the last Texas Legislative Session. You can run a child support calculation using the Travis County Child Support Payment Calculator to check how much child support should be paid based on your income and other deductions such as health insurance and other children in your life. The Texas Attorney General's Child Support website is also informative, if not as interactive as the Travis County website. I also recommend that a parent paying or receiving child support should speak to a family law attorney in order to know how to make a child support calculation in your case and whether your situation might be at risk of going above this "cap" limit.
Mediation is an informal settlement option that is available and appropriate in most divorce cases. Mediation is highly encouraged in all Texas Courts as a necessary intermediate step before a final hearing can be held in a divorce case, especially one with complex custody and/or property issues. Mediation is where both parties meet, usually at the mediator's office, usually in separate rooms, to try to reach an agreement on some or all issues in their case. This saves the costs and stress of a big final contested hearing, where the outcome is unknown. A good mediator is usually one who is also an attorney in the divorce/family law area, or also sit as a judge in primarily civil cases. Mediators range in price from $200 to over $2,000 per party for an all-day mediation. The average price for mediators in the Austin area for an excellent mediator is between $500 to $800 per party for an all day mediation. Preparation is key for mediation, so be sure to coordinate your agenda with your attorney before you attend mediation. Make sure to define your bottom range for any "deal" in mediation so you know when a mediation is not being productive and you are getting away from your goals in your case.
A good mediator will listen to your concerns and goals for your case, discuss probable options, and meet with each party independently to work through each party's goals and concerns. A good mediator can take a very contested case and work with the parties to find a creative solution to their case that works with the specific needs of each party. A good mediator can save both sides major litigation costs as well as the physical and emotional toll of a contested final hearing. I always recommend mediation and include my attendance at mediation as a no-cost addition to all my divorces cases. To all parties trying to find the "out" in a divorce/custody case that has spun out of control with fees and emotions, I highly recommend discussing the mediation option with your attorney.
Toll Road Violations
During the divorce process many debts and assets are subject to "just and right division" by the Court. Many parties also chose to agree on how to divide debts and assets to forgo the need for a stressful and expensive trial. During the negotiation and settlement process you should keep in mind that some assets might come with hidden debts attached.
For example; if your spouse has been driving a car under your name while the divorce is pending (or before divorce was filed) and that spouse wants to retain that car after the divorce, then you need to make sure they are taking the vehicle with all debts associated with it. The opposite is also true. If the spouse is giving you back a car they have been using, then make sure they are ordered to cover any debts associated with the vehicle up until the date they turn it over to you.
Should anyone need toll road fees or violations assistance, I always recommend local Toll Road Attorney Lindsey Simmons. She has former work experience with the Toll Road Authority and knows how to chop those delinquent fines and fees in half, most of the time. This type of assistance might be necessary before a divorce can go through, but hopefully these things are taken care during the divorce process.
Jail Release for Child Support
If someone has been arrested in Travis County due to failure to pay child support, you need to find out who asked for the person to be put in jail. You can review the paperwork that was signed by the Judge when that person was committed to find this out. It is usually called a Commitment Order or something similar. You can get that in the district clerk's office at the Travis County Courthouse, First floor, 1000 Guadalupe, Austin, TX 78701. You need to find out whether the Travis County Domestic Relations Office or the Texas Attorney General Child Support Division is the one who put him in jail. Whichever it is, you need to contact that office and they can tell you how much the bond is to get him released and when he is likely to be released or have his next court date. See this link to the Travis County Domestic Relations Office to get more information including phone numbers to call. Keep in mind that when going to make a payment for their release they only accept money orders and cashier's checks, not cash or personal checks.
Many people want to hire an attorney to handle this process, which is fine and useful if you cannot get off work to handle it or get overwhelmed by the bureaucracy. However, many people would be better served in taking any money they would use to hire an attorney and putting that towards the bond and any back-owed child support. In the end, it's money they want and it's money they shall get. It would be better to try to catch up than hire someone to tell you what you already know; you're far behind in payments and need to catchup.
Barring any mistake in payment credits, disability payments, agreements from the custodial parent to waive some arrears in exchange for a large payment now, it's usually best to make the payments and try to put yourself back in the Court's good graces. To determine whether you or your loved one qualifies for any reductions in child support, it is best to contact an attorney and at least discuss your options before deciding on a course of action.
Change of Name in Divorce Suit
A party wanting to change their name back to a maiden name can do so in a Final Decree of Divorce. They must specifically mention a name change in their Original Petition of Divorce and must include the new name in their Final Decree of Divorce that is signed by the Judge. Texas Family Code 45.106 is the law that allows you to combine a name change with your Divorce. If you do not include a name change with your divorce, for instance if you change your mind later and want a name change a few months or years after the divorce, then you will have to file a new change of name suit, pay around $275 in filing fees, and take time out of your day to schedule another hearing with the Court to ask permission to change your name. This is an expense,and hassle that is best avoided the first time around by including it in your Divorce.
Best Interests of the Children
Texas Family Code 153.002 and 153.003 show that when a Judge is making a decision as to custody (Conservatorship, Possession, & Access) they look to these sections of the Family Code to instruct them on whom to award custody of the child(ren). In fact, the best interests of the child(ren) is usually the primary consideration of the court in determining the issues of conservatorship and possession of and access to the children. The Court cannot consider a party's marital status (or lack of marital status) or their gender in determining who would be the "better" parent. The old saying that Courts favor the mothers is not the case, under Texas law.
Whenever you are framing your case and your arguments, it is usually best to keep this "best interests of the child(ren)" in mind. The Judge surely will. Show the Court how you are the better choice and tread lightly on only showing how the other parent is the wrong choice. Focusing only on the other side's negatives and not enough on your positives will be wasted efforts in the long run. Make the focus your education, training certificates, workplace achievements, awards, community involvement, and support of children's activities. If you do not have these when your case first starts, then there is no time like the present to start building yourself up in these areas. Better late than never.
Board of Nursing Violations
The Texas Board of Nursing handles the licensing and practice standards for all Registered Nurses (RNs) and Licensed Vocational Nurses (LVNs) actively working in Texas. If you are a licensed nurse and you receive a Notice of Disciplinary Action letter from the Texas Nursing Board you know you need serious assistance to protect you, your license, and your family's income through your job. The Board's Disciplinary Action page on their website has some guidance, but it is to your advantage to speak with someone familiar with the disciplinary process. Many nurses respond to the Board's letter without speaking to anyone and unfortunately dig themselves into deeper trouble. The right response can change the trajectory of your situation and propel you into a lesser offense category if not dispel the action altogether. Review the Disciplinary Matrix and this handy flowchart of the disciplinary process. Knowledge is key to understanding your situation and your options. Partney Law is standing by to guide you through this very difficult and trying time.
Two More DNA Exonerations in Dallas!
Two more men were freed in Dallas, Texas today after DNA results proved they were not guilty of the crime for which they spent more than 30 years in prison. Raymond Jackson and James Williams walked out of Court on Monday, April 30, 2012, as free men. I'm not sure if the Innocence Project of Texas is taking the lead or some other organization as the news stories I see online do not name either man's attorneys.
You can read more on this exciting case from the local CBS affiliate story or you can review another account from the Fort Worth Star-Telegram. Congratulations to both men and special thanks goes out to Craig Watkins, Dallas County District Attorney, for his continued push for these exoneration efforts via his Conviction Integrity Unit. Without a receptive local DA these cases might have been fought tooth and nail and justice further postponed, as it is in too many other counties across the state.
Child Support - Paying something is better than nothing
Many people come to me with large amounts of past-due child support. The interest alone can represent a large portion of their amount owed. I have seen lots of people go to jail due to their failure to pay child support. In most cases, the non-paying parent has paid nothing for months or years and now their past payment history (or lack thereof) is being used against them to show their true character.
Many people assume that if they don't have the full amount then they should not pay anything. Please note that child support is different than other consumer debt. Child support gets sent to a centralized office where the amount you pay is noted in your computer file and then the money is passed along to the receiving parent. Note that you can either send the payment in as a check or make a payment online through a credit card or bank account transfer. See the Texas Attorney General Child Support Webpage for more information on where to mail or make the payments.
If you cannot make a full payment on your child support, it is in your best interests to send something, anything, in rather than not pay at all. If you ever have to go in front of a Judge they will be more likely to give you a second chance if they say you have been sending in something every month as opposed to seeing months and months of zero payments. Judges hate to send people to jail (at taxpayer expense) and want to give delinquent parents as many chances as they can. Let your payment history be the best evidence of how you have been paying something, not nothing. That shows the court that you are at least attempting to comply. Keep in mind that if you have a reduction in wages, either through a layoff or move from full to part time, you might qualify for a reduction in your child support. Call an attorney (preferably me) to discuss whether a reduction is proper in your case.
Certified Mail, Return Receipt Requested
Many people do not know the power of Certified Mail. If you need to prove that someone actually received a letter, package, or document, then this method is the best way to confirm that. It will cost about $6.00 to send a regular sized envelope through the U.S. Postal Service. Your local post office can help you find the right stickers that you need to place on the envelope. See USPS.com for more details on Certified Mail.
Why do you need to send something Certified Mail, Return Receipt Requested? Because when a Judges asks you whether the other side got "Notice" of a hearing setting this is the sure-fire way to prove that someone did receive your letter with the notice inside. The return receipt card comes back in the mail with the recipient's signature on the card. If you are lucky, it is the signature of the same person you were trying to reach and not a secretary, assistant, or spouse. However, even that might be enough to show the Judge that it did get there. Make sure to save a copy of the letter that was in the envelope so you can show everything to the Judge to prove not only that you sent something but also what you actually sent.
Civics Resources for Students and Teachers
The Texas State Board of Education has new standards for the TEKS (Texas Essential Knowledge and Skills) test relating to social studies curriculum. The additions to the State’s government and history curriculum include knowledge of certain landmark court cases. Middle and High School students are now required to analyze them and be tested on their main points.
The State Bar of Texas has made a website to assist teachers and educators in their efforts with this civics portion of the TEKS test. The website contains interactive components, case summaries, curriculum materials, videos, and other multimedia materials. You can visit http://www.texasbar.com/civics/index.html for more information. They have videos and interactive portions as well as printed materials. The materials are divided into middle and high school classifications to keep things accessible, approachable, and easy for all levels of students and educators.
Our State Bar President, Bob Black, has led this civics educational initiative. “Civics Education is critical to fostering engaged citizens who understand our democracy and the liberties the rule of law protects,” Black has said in the October 2011 Bar Journal. The cases will expose students to very important events in American history. Some of the videos available include introductions from Retired Supreme Court Justice Sandra Day O’Connor and the Texas Supreme Court Justice Wallace B. Jefferson.
How to get what you want in a Final Divorce Hearing; Making a list, checking it twice.
The best advice for someone, attorney or not, when going for a final divorce hearing is this: make a list of all the property you want the Court to divide. I suggest hiring an attorney who can help you with your divorce, regardless of how many assets or debts you have. But if you want to go it alone then preparation and organization are your best tools.
I see people make the mistake of assuming the Judge knows everything about their case down to the last nickel. If you have your case together and are well prepared then the Court will give you more weight (believability) on other issues, like which person is better suited to keep the house or establish where the children live.
Travis County and Williamson County divorce courts have what’s called “local rules” addressing the topic of what lists to create and bring to a final hearing. In both counties everyone is required to bring in a list of all the property and what each party’s preference is on how to divide everything. In most cases, you MUST give this list to the other side a couple weeks before the final hearing. My advice is, if you forget to do this, at least bring a list with you to the hearing. Something is better than nothing and the Judge might take pity on you and allow that list to be discussed. Judges want YOU to create this list because it speeds things up and keeps everyone on topic. You should check the local rules for your county and see if there is a similar requirement in your case. Even if there is not something firm on the subject, you should still make a list and pass it around. It is good for everyone to be on the same page and you want to establish that it is YOUR page everyone should be on.
Regarding the list itself, you should include all debts, like mortgages, loans, and credit cards, as well as all assets, like the house, cars, bank accounts, investments, and other large pieces of property. If you want to list out the entire contents of your house, go right ahead, but do not expect the Judge to divide every fork and footstool. I would suggest at least naming the big items of furniture like couches, tables, bedroom furnishings, TVs, computers, tools, and collectibles. Once you have a working list of all these items, put down how much each is worth and any debts attached to them. For example, if your car is worth $10,000 and you have a loan on it with a balance of $3,000 then your car has equity of $7,000. Put down both the value and the debt so everyone is aware of both amounts.
Making this type of list will impress the Judge hearing your case and make him or her more inclined to see things your way. This is not to say that all the other problems in your case will go away with you drafting this list, but it is one step that puts you in the good graces of the Judge. A happy Judge is more likely to rule in your favor and a list makes it very easy for them to do that.
How to reduce your back owed child support
The most common question I am asked is whether past due child support can be taken off someone’s account with the Texas Attorney General. The answer is, sometimes you can.
Many parents fall behind on child support payments and then have a hard time catching back up. Those unpaid amounts sit as a negative in the account and slowly gather interest. If payments are not made for long periods of time then the outstanding balance can be quite substantial. The Texas Attorney General’s office will eventually come knocking for its money if it can’t collect it through income tax refund withholding or other means.
To reduce the amount of past due child support you need the agreement of three persons: (1) the other parent to whom the child support is owed. It is important to note that if the other parent is unwilling to waive the back owed support there are only limited ways to reduce the arrears; (2) the Attorney General working the case; and (3) the Judge signing off on everything. If the other parent agrees to waive his/her portion of the outstanding fees then an attorney general may go along with this decision. The other parent can agree to take away parts of the outstanding balance or wipe away all of it. It’s their decision since it’s technically money owed to them, which they have the authority to decline. The attorney general attending to the case can then draw the paperwork up for all the parties and mention a reduction in the past-due balance. If the Judge follows this agreement made by everyone then the amounts will be taken out of their computer system.
Keep in mind that in many cases the principal AND interest owed to the parent can be waived, however, there are medical costs that usually cannot be waived. These are debts owed to the state and they typically never agree to reduce these amounts.
If you are going to a court hearing for an Attorney General Child Support case, you need to be careful what you agree to and what you sign away. The right moves can result in a very favorable case for the parent who has a substantial past-due child support amount.
Visitation for Children Under three years old
Texas Family Code Section 153.254 was changed in the 2011 legislative session. Please note that the link is to the old law. The new language goes into effect September 1, 2011 but will not be posted until the website updates. The new language has been published elsewhere but the changes might not be well-known yet.
Under the old language a Judge was authorized to "render an order appropriate under the circumstances" for children under three years of age and to make provisions for possession and access once the child turned three.
Under the new language the Judge can consider many relevant factors including caregiving provided before the suit, effect of separation on the child; availability of either party as caregivers, needs of the child, impact on others who will be present during periods of visitation, the need for continuity of routine, the need for the child to develop healthy attachments to both parents, location and proximity of the residences of all parties, and to provide for incremental shifts in visitation to match standard visitation schedules.
These factors should provide Courts in Austin, Georgetown, San Marcos, and all other Texas counties with a new reason to grant equal access to both parents. All Divorce or Custody suits filed in Texas after this September 1, 2011 date will be able to utilize these new expanded factors. Being a divorce lawyer, these new factors will provide welcome relief to parents going through a difficult divorce and custody battle with a young child involved. Families with older children will keep stronger ties with their younger siblings. In much the same respect, Grandparents and other caregivers also stand to benefit under the new law. Courts have been hesitant in awarding equal time to a parent who might have been out of the house more during the first years of the child's life but who also contributed just as much time and affection in the after-hours portions of their day. This will prevent a parent from losing out on visitation just because their schedules are not conducive to the intricate and demanding schedules of younger children. Courts can point to this new law as a progressive benchmark in giving visitation schedules that match the shared duties of modern parents, which are in stark contract to domestic notions of prior years.
The real-world details of your case should be described to the Court as they fit within these new factors. A Court should be able to apply these to your case and maintain a level of contact for each parent that's in keeping with this new law. I hope this new law offers the stability and calm necessary to protect the interests of young children and make sure no parent is left out of important initial phases of the child's development. Equality for all now has a firmer footing in Texas Divorce cases.
Can my child choose where they want to live?
This question comes up a lot in Change of Custody or Divorce cases, not just in in Austin Divorce cases and Georgetown Divorce cases, but also in many Texas Divorce and custody cases. The Texas Family Code, Section 153.009 is the law dealing with this question.
Many children express a desire to live with one particular parent over the other. This is common during the divorce process as well as down the line after the divorce has been completed for some time.
The old law used to allow a child over the age of 12 to sign a waiver designating which parent they wanted to live with. The law was recently changed to allow the Judge to interview the child in chambers to take their opinion in to account. This is only available where you have asked for the Judge to make a final decision in your case. If you have asked for a jury trial this interview is not an option.
If your child is over 12 years old then the court shall interview them upon application. However, if your child is less than 12 years old then it’s up to the Judge as to whether they want to interview your child.
In order for your child to speak to the Judge a request should be made with the Court. Any parent may make the request, but it is strongly advisable to file the request and then speak to the Judge to setup a time for the child to come meet with the Judge. The Judge is free to discuss issues regarding possession, access, and any other issues affecting the parent-child relationship. Do not bring your child to the courthouse when you are filing the application and expect to immediately be seen by the Judge. The attorneys can be present during the interview, at the discretion of the Judge. However, if you request that a record of the interview be made by the court reporter, then it must be made and be included as part of the case record.
Keep in mind that the Judge is not required to follow the child’s wishes, if they determine it is not in their best interests.
Law Office of Jason Partney
212 West Main St. Suite 104,
Round Rock, TX 78664
512-200-2151 Office & 512-852-4628 Fax
212 West Main St. Suite 104,
Round Rock, TX 78664
512-200-2151 Office & 512-852-4628 Fax
"In matters of truth and justice, there is no difference between large and small problems, for issues concerning the treatment of people are all the same."