The right to obtain physical possession of a child, the right to obtain temporary relief without prior notice to the other party, and the right to exclude a party from a residence are all special circumstances in which emergency relief may be requested.
A writ of attachment is a court order requiring a child be produced at a particular location at a particular time. It is used in situations where a party is entitled to possession of a child under a court order. It may also be used when an emergency exists and a child is in imminent danger to his or her physical or emotional welfare.
The remedy is extraordinary. As such, specific facts must be alleged to command the court to issue the writ. The writ should be requested only when necessary to protect the welfare of the child.
Section 105.001 of the Texas Family Code provides the court may not render an order, except on a verified pleading or an affidavit which (1) attached the body of a child; (2) takes the child into the possession of the court or into the possession of a person designated by the court or (3) excludes a parent from possession of or access to a child.
Requests for writs of attachment are contained in petitions, motions and applications in suits affecting the parent child relationship and are filed ancillary to other requests. The court must then make a determination as to whether the necessity exists for the writ and the applications are in proper order.
The court issues a writ commanding any sheriff or constable to attach the body of a child and deliver the child to a designated place. That designated place is a location specified by the court who may command that the child be brought to the court or the court may provide a location where the child may be delivered by law enforcement.
Habeas corpus actions are brought when a party claiming a right to possession of a child is seeking the court’s help in getting the child physically turned over to that party. The court shall compel return of the child to the person filing the habeas corpus only if the court finds that the filer is entitled to possession under the order.
If the court fails to compel return of the child, the court may issue temporary orders if a suit affecting the parent child relationship is pending. The court may issues such temporary orders only if the suit affecting parent child relationship is pending and the temporary hearing is set at the same time as the habeas corpus hearing. The court may then enter an order if a serious immediate question concerning the welfare of the child is shown at the temporary hearing.
The court has defined “serious and immediate question” to mean imminent danger of physical or emotional harm that requires immediate action to protect the child. If a right to possession is established, the exception to granting the writ occurs when a serious and immediate question concerning the welfare of the child exists. If the writ is denied after the right to possession under a prior court order is established, the Texas Supreme Court requires the trial court issue a written temporary order containing a finding that there is a serious and immediate question concerning the child.
A serious and immediate question, although often alleged, is rarely found in habeas corpus actions.
A temporary order, when entered, should not be a final adjudication of custody. At a minimum, the temporary order should contain the filer’s temporary rights to possession and should set a further hearing.
Monday, June 29, 2009
A Child’s Testimony and the Law
The Texas Family Code provides for the child to have a voice in the Courtroom. The “voice” appears in many forms and in many places in the Texas Family Code.
Texas Family Code Section 153.008 allows a child to file his/her preference with the Court, if the child is 12 years of age or older. This statute infers that the child’s preference is binding if the Court approves the designation. However, the statute is absent any coercive language. Many argue that the age of 12 is too young or too immature to understand the impact of a preference. “12” is not a magical number. The statute also does not state that the Court must make a determination upon the executed preference.
Although one can view the filing of a preference as a “voice” of the child, many litigants view the filing as a starting place, just a request of the child. The same child who may sign a preference for one parent having the right to determine he said primary residence, may also prefer to live with the other parent. The right to determine the primary residence of the child is not necessarily the right to have primary physical possession – or is it?
The code continually strives to be gender neutral and avoid the use of the term: physical custody. The term “primary physical custody” is not contained in the statute, nor is there any language stating where the child lives or resides. Each parent gets possession for a certain period of time. Yet, no where does the code state “I live with mom/dad.”
Current law also states that a child may be a witness. The Code makes certain that family law will be conducted as other civil cases. Texas Family Code Section 104.002 gives specific rules for admission of a statement of a child who is under 12 years of age, and in cases that involve abuse. The idea is that the statement of the child will be pre-recorded and not simply a deposition. The statute is designated to give some comfort to the child in an atmosphere that may allow that abused child to feel safe. It is clear that 104.002 is designed for cases dealing with abuse only, as it has “exceptions” to what would otherwise be testimony under simple cross examination. The statute applies to children who are under the age of twelve years, with the idea that the statements are not elicited for purpose of establishing a preference, but for the purpose of establishing fact.
Section 153.009 allows an in chamber interview with the child. In a non-jury trial or at a hearing, on the application of a party, the amicus attorney or the attorney ad litem for the child, the court SHALL interview in chambers a child 12 years of age or older and MAY interview in chambers a child under 12 years of age to determine the child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence. The court may also interview a child in chambers on the court’s own motion for a purpose specified by this subsection.
In a non-jury trial or at a hearing on the application of a party, the amicus attorney, or the attorney ad litem for the child or on the court’s own motion, the court may interview the child in chambers to determine the child’s wishes as to possession, access or any other issue in the suit affecting the parent-child relationship. Interviewing the child does not diminish the discretion or the court in determining the best interest of the child. In a jury trial, the court may not interview the child in chambers regarding an issue on which a party is entitled to a jury verdict. In any trial or hearing, the court may permit the attorney for a party, the amicus attorney, the guardian ad litem for the child, or the attorney ad litem for the child to be present at the interview. On the motion of a party, the amicus attorney, or the attorney ad litem for the child, or on the court’s own motion, the court shall cause a record of the interview to be made with the child is 12 years of age or older. A record of the interview shall be part of the record in the case.
Under current law, the interview of a child in chambers is limited to a non-jury case and does not have any place in a jury trial. However, the statute is clear that the interview can lead to much more information for the Court than simply questioning the child’s wishes as to conservatorship. There is very little case law to guide the practitioner on this point.
There is nothing in the Family Code that precludes a child from testifying in a deposition. The use of deposition testimony may be the best approach to obtaining a child’s testimony in a jury trial. The parties may even agree to take the deposition at a place other than the law office, allowing a less hostile environment.
The use of pictures and family videos is another way to get a child’s voice heard.
Texas Family Code Section 153.008 allows a child to file his/her preference with the Court, if the child is 12 years of age or older. This statute infers that the child’s preference is binding if the Court approves the designation. However, the statute is absent any coercive language. Many argue that the age of 12 is too young or too immature to understand the impact of a preference. “12” is not a magical number. The statute also does not state that the Court must make a determination upon the executed preference.
Although one can view the filing of a preference as a “voice” of the child, many litigants view the filing as a starting place, just a request of the child. The same child who may sign a preference for one parent having the right to determine he said primary residence, may also prefer to live with the other parent. The right to determine the primary residence of the child is not necessarily the right to have primary physical possession – or is it?
The code continually strives to be gender neutral and avoid the use of the term: physical custody. The term “primary physical custody” is not contained in the statute, nor is there any language stating where the child lives or resides. Each parent gets possession for a certain period of time. Yet, no where does the code state “I live with mom/dad.”
Current law also states that a child may be a witness. The Code makes certain that family law will be conducted as other civil cases. Texas Family Code Section 104.002 gives specific rules for admission of a statement of a child who is under 12 years of age, and in cases that involve abuse. The idea is that the statement of the child will be pre-recorded and not simply a deposition. The statute is designated to give some comfort to the child in an atmosphere that may allow that abused child to feel safe. It is clear that 104.002 is designed for cases dealing with abuse only, as it has “exceptions” to what would otherwise be testimony under simple cross examination. The statute applies to children who are under the age of twelve years, with the idea that the statements are not elicited for purpose of establishing a preference, but for the purpose of establishing fact.
Section 153.009 allows an in chamber interview with the child. In a non-jury trial or at a hearing, on the application of a party, the amicus attorney or the attorney ad litem for the child, the court SHALL interview in chambers a child 12 years of age or older and MAY interview in chambers a child under 12 years of age to determine the child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence. The court may also interview a child in chambers on the court’s own motion for a purpose specified by this subsection.
In a non-jury trial or at a hearing on the application of a party, the amicus attorney, or the attorney ad litem for the child or on the court’s own motion, the court may interview the child in chambers to determine the child’s wishes as to possession, access or any other issue in the suit affecting the parent-child relationship. Interviewing the child does not diminish the discretion or the court in determining the best interest of the child. In a jury trial, the court may not interview the child in chambers regarding an issue on which a party is entitled to a jury verdict. In any trial or hearing, the court may permit the attorney for a party, the amicus attorney, the guardian ad litem for the child, or the attorney ad litem for the child to be present at the interview. On the motion of a party, the amicus attorney, or the attorney ad litem for the child, or on the court’s own motion, the court shall cause a record of the interview to be made with the child is 12 years of age or older. A record of the interview shall be part of the record in the case.
Under current law, the interview of a child in chambers is limited to a non-jury case and does not have any place in a jury trial. However, the statute is clear that the interview can lead to much more information for the Court than simply questioning the child’s wishes as to conservatorship. There is very little case law to guide the practitioner on this point.
There is nothing in the Family Code that precludes a child from testifying in a deposition. The use of deposition testimony may be the best approach to obtaining a child’s testimony in a jury trial. The parties may even agree to take the deposition at a place other than the law office, allowing a less hostile environment.
The use of pictures and family videos is another way to get a child’s voice heard.
Thursday, June 25, 2009
BEWARE: Social Networking Sites and the Law
Social networking sites originated in the mid-1990’s, but only recently began to expand across the web. Two of the largest social networking sites are MySpace (with over 118 million members) and Facebook (with over 120 million members).
The concept of social networking is easy enough. You begin by filling out a profile, then you look for people you know. When you find someone, you click to add him or her as a friend. Once this is done, you can see who your friends know, who your friends’ friends know, and so on. Social networking is a wonderful avenue for connecting with persons across the globe, but must be done with caution. Keep in mind, pictures, comments, and other information placed on your site may be accessed in any number of ways and may upon proper predicate be used against you in litigation.
Family law practitioners can uncover a wealth of information using social networking sites. Many firms are now making it routine to perform MySpace, Facebook and Match.com searches to see if they can obtain useful information on the opposing party, witnesses, or experts. Such diligence has paid off in some cases. In one case in particular, pictures were discovered of a wife’s sexually explicit boasts on her boyfriend’s MySpace page. The evidence obtained assisted lawyers in securing child custody for the husband. In another case, an attorney was able to undermine an opposing spouse’s credibility when she confronted him with his MySpace page describing him as “single and looking.” While yet another case was won because a husband presented himself as “divorced” and gave a long description of the type of woman he wanted to meet. Information obtained from these sites can be very useful when counsel is trying to provide proof of a spouse’s infidelity. Therefore, is important to carefully and periodically monitor what you place on your social networking site.
Social network evidence may in most cases also be used in child custody cases. Pictures of a parent in various compromising situations while a child or children are in the parent’s custody can present a major problem in a custody lawsuit. Partying, drinking, and negative statements about children used on social networking sites can be offered as evidence in Court. Parents should use caution when placing pictures and other information on their social networking site.
Keep in mind that your employer can access your social networking site. In one case, a partner in one of Dallas’s larger law firms used MySpace and Facebook to uncover details of a client’s former employee and her plans to circumvent a non-compete agreement.
Social networking has also been used in sexual harassment cases. In Houston, Texas, a plaintiff was portrayed as a modest, innocent “wannabe nun.” The opposing counsel found a MySpace page that painted a very different picture of a plaintiff, with numerous photos of her in scanty or provocative attire and engaged in suggestive horseplay at bars and with friends.
Evidence obtained from social networking sites has been used in personal injury and in criminal cases. Attorneys are running cyber checks on jury pools. Many firms are running cyber searches on new clients, witnesses, opposing parties and experts.
In the ever growing and expanding world of cyberspace, it is becoming increasingly important that you inform your counsel of any and all internet usage, sites and blogs which you have joined or participated in so that they may represent you and be properly prepared.
The concept of social networking is easy enough. You begin by filling out a profile, then you look for people you know. When you find someone, you click to add him or her as a friend. Once this is done, you can see who your friends know, who your friends’ friends know, and so on. Social networking is a wonderful avenue for connecting with persons across the globe, but must be done with caution. Keep in mind, pictures, comments, and other information placed on your site may be accessed in any number of ways and may upon proper predicate be used against you in litigation.
Family law practitioners can uncover a wealth of information using social networking sites. Many firms are now making it routine to perform MySpace, Facebook and Match.com searches to see if they can obtain useful information on the opposing party, witnesses, or experts. Such diligence has paid off in some cases. In one case in particular, pictures were discovered of a wife’s sexually explicit boasts on her boyfriend’s MySpace page. The evidence obtained assisted lawyers in securing child custody for the husband. In another case, an attorney was able to undermine an opposing spouse’s credibility when she confronted him with his MySpace page describing him as “single and looking.” While yet another case was won because a husband presented himself as “divorced” and gave a long description of the type of woman he wanted to meet. Information obtained from these sites can be very useful when counsel is trying to provide proof of a spouse’s infidelity. Therefore, is important to carefully and periodically monitor what you place on your social networking site.
Social network evidence may in most cases also be used in child custody cases. Pictures of a parent in various compromising situations while a child or children are in the parent’s custody can present a major problem in a custody lawsuit. Partying, drinking, and negative statements about children used on social networking sites can be offered as evidence in Court. Parents should use caution when placing pictures and other information on their social networking site.
Keep in mind that your employer can access your social networking site. In one case, a partner in one of Dallas’s larger law firms used MySpace and Facebook to uncover details of a client’s former employee and her plans to circumvent a non-compete agreement.
Social networking has also been used in sexual harassment cases. In Houston, Texas, a plaintiff was portrayed as a modest, innocent “wannabe nun.” The opposing counsel found a MySpace page that painted a very different picture of a plaintiff, with numerous photos of her in scanty or provocative attire and engaged in suggestive horseplay at bars and with friends.
Evidence obtained from social networking sites has been used in personal injury and in criminal cases. Attorneys are running cyber checks on jury pools. Many firms are running cyber searches on new clients, witnesses, opposing parties and experts.
In the ever growing and expanding world of cyberspace, it is becoming increasingly important that you inform your counsel of any and all internet usage, sites and blogs which you have joined or participated in so that they may represent you and be properly prepared.
Sealing the Deal: Contracts – A Smart Investment
The Importance of Employment Contracts
An employment contract is a legal agreement between an employer and employee in which the terms and conditions of employment are spelled out. Though there is a body of statute law which governs specific aspects of the employer/employee relationship, such laws only form part of the basis upon which the employment relationship is based. Other areas of the employment relationship are based on the written terms and conditions given by employers to their employees, which function to work in conjunction with existing statute law to specify and define an employee’s rights and obligations.
An employer must within two months of the start of employment provide the employee with written terms and conditions of employment. There are different formats in which these terms and conditions may be presented, which include the following:
1. A formal legal contract which is signed by both parties. The terms are often negotiable and can be tailored to include terms very specific to the individual position and the employee concerned.
2. A “letter agreement” which may be detailed, or which simply sets out the minimum information required under the Terms of Employment Act of 1994. This letter is normally signed by the employee as an acceptance of the position offered. This letter might not contain sufficient detail to inform the employee fully of their terms and conditions and may not be adequate to protect the employer.
3. A handbook may be presented which will comprise of the terms and conditions of employment. The employee is normally asked to sign an acknowledgment of receipt and acceptance of the terms and conditions of employment contained in the handbook. The negative consequence of the handbook is that it applies for all employees and specific terms are not negotiable as they would be in a formal contract in the form of a traditional legal document.
The Term of Employment Act of 1994 requires some employers within two months of an employee beginning employment to set out in writing the terms and conditions of the job and to specifically include, but are not limited to, the following:
Name of employer
Name of employee
Place of employment
Job title
Location of work (and if location may also be elsewhere or outside the state than further details must be given by the employer)
Start date
End date (if a temporary contract)
Work hours and details of overtime pay
Pay and frequency of payment
Benefits, such as bonus scheme, health insurance, 401(k), retirement, use of company car, payment of tuition fees, etc.
Holiday entitlements
Details of any sick pay scheme
Details of pension scheme
Minimum notice to end the employment relationship must be given by both employer and employee.
Employees can ask for written terms and conditions at any time and the employer must provide same within two months. If a person has been in employment since before the Terms of Employment Act of 1994 and has never been issued written terms and conditions or a contract of any type, the employee is still entitled to receive a written copy of these terms. If, however, an employee has been in employment without a contract, an employer cannot force an employee to sign a contract of employment and employment will continue under the “custom and practice” created between the employer and employee.
The employment contract is equally as important to the employer as the employee. Employers can use contracts to their advantage, especially in times when jobs are scarce. Employment contracts often set out such things as probationary periods, sick pay scheme, additional leave which might be taken, pension scheme and any further benefits to be provided by the employer.
The great advantage to the employer is there, in some cases, are many items which can be included to protect the employer such as a restrictive covenant restricting a former employee from taking employment within a specified geographical area, a clause which would prohibit a former employee from doing business with the employer’s clients for a specified period of time or a confidentiality clause wherein the employee must keep all trade secrets of the employer confidential. Employers can set out the minimum notice an employee must give to terminate employment.
Employment contracts should be well drafted and should include proper protection for both the employee and employer. A well drafted contract may save a company thousands of dollars in legal fees.
An employment contract is a legal agreement between an employer and employee in which the terms and conditions of employment are spelled out. Though there is a body of statute law which governs specific aspects of the employer/employee relationship, such laws only form part of the basis upon which the employment relationship is based. Other areas of the employment relationship are based on the written terms and conditions given by employers to their employees, which function to work in conjunction with existing statute law to specify and define an employee’s rights and obligations.
An employer must within two months of the start of employment provide the employee with written terms and conditions of employment. There are different formats in which these terms and conditions may be presented, which include the following:
1. A formal legal contract which is signed by both parties. The terms are often negotiable and can be tailored to include terms very specific to the individual position and the employee concerned.
2. A “letter agreement” which may be detailed, or which simply sets out the minimum information required under the Terms of Employment Act of 1994. This letter is normally signed by the employee as an acceptance of the position offered. This letter might not contain sufficient detail to inform the employee fully of their terms and conditions and may not be adequate to protect the employer.
3. A handbook may be presented which will comprise of the terms and conditions of employment. The employee is normally asked to sign an acknowledgment of receipt and acceptance of the terms and conditions of employment contained in the handbook. The negative consequence of the handbook is that it applies for all employees and specific terms are not negotiable as they would be in a formal contract in the form of a traditional legal document.
The Term of Employment Act of 1994 requires some employers within two months of an employee beginning employment to set out in writing the terms and conditions of the job and to specifically include, but are not limited to, the following:
Name of employer
Name of employee
Place of employment
Job title
Location of work (and if location may also be elsewhere or outside the state than further details must be given by the employer)
Start date
End date (if a temporary contract)
Work hours and details of overtime pay
Pay and frequency of payment
Benefits, such as bonus scheme, health insurance, 401(k), retirement, use of company car, payment of tuition fees, etc.
Holiday entitlements
Details of any sick pay scheme
Details of pension scheme
Minimum notice to end the employment relationship must be given by both employer and employee.
Employees can ask for written terms and conditions at any time and the employer must provide same within two months. If a person has been in employment since before the Terms of Employment Act of 1994 and has never been issued written terms and conditions or a contract of any type, the employee is still entitled to receive a written copy of these terms. If, however, an employee has been in employment without a contract, an employer cannot force an employee to sign a contract of employment and employment will continue under the “custom and practice” created between the employer and employee.
The employment contract is equally as important to the employer as the employee. Employers can use contracts to their advantage, especially in times when jobs are scarce. Employment contracts often set out such things as probationary periods, sick pay scheme, additional leave which might be taken, pension scheme and any further benefits to be provided by the employer.
The great advantage to the employer is there, in some cases, are many items which can be included to protect the employer such as a restrictive covenant restricting a former employee from taking employment within a specified geographical area, a clause which would prohibit a former employee from doing business with the employer’s clients for a specified period of time or a confidentiality clause wherein the employee must keep all trade secrets of the employer confidential. Employers can set out the minimum notice an employee must give to terminate employment.
Employment contracts should be well drafted and should include proper protection for both the employee and employer. A well drafted contract may save a company thousands of dollars in legal fees.
Monday, June 8, 2009
Torn Apart: Children and Divorce
Despite the difficulties faced in a divorce, the children should not be placed in the center of the crossfire. During the divorce process, and sometimes following the divorce process, it is not uncommon for a parent to become so wrapped up in anger, vengeance or simply being “right” that they forget the effect the whole process is having on the children. Below are some behaviors to avoid and some suggestions to assist you with improving your communications during the divorce process:
1. Do not use children as messengers between “mom” and “dad.”
2. Do not criticize your former spouse in the presence of your children because children realize they are part “mom” and part “dad.”
3. Resist any temptation to allow your children to act as your caretaker. Children need to be allowed the freedom to be “children.” Taking on such responsibility at an early age degrades their self-esteem, feeds anger and hinders a child’s ability to relate to their peers.
4. Encourage your children to see your former spouse frequently. Promote a good relationship for the benefit of the child.
5. Do not argue with your former spouse in the presence of the children. No matter what the situation, the child will feel torn between taking “mommy’s” side and “daddy’s” side.
6. At every step during the divorce process, remind yourself that your children’s interests are paramount, even over your own.
7. If you are the non-primary parent, pay your child support.
8. If you are the primary parent and are not receiving child support, do not tell your children. This feeds a child’s sense of abandonment and erodes their stability.
9. Remember that the Court’s view child support and child custody as two separate and distinct issues. Children do not understand whether “mommy” and/or “daddy” paid child support, but they do understand that “mommy” and/or “daddy” wants to see me.
10. If at all possible, do not uproot your children. When a family is falling apart, a child needs a stable home and school life to buffer the trauma.
11. If you have an addiction problem, whether it be drugs, alcohol or any other affliction, seek help immediately. Such impairments inhibit your ability to reassure your children and give them the attention they need.
12. If you are having difficulty dealing with issues relating to your former spouse, discuss such issues with mental health professionals and counselors.
13. Reassure your children that they are loved and that they have no fault in the divorce.
Though these steps are not all-inclusive, they will assist you in dealing with the complex issues of a divorce and hopefully minimize the impact of the divorce process on the children.
1. Do not use children as messengers between “mom” and “dad.”
2. Do not criticize your former spouse in the presence of your children because children realize they are part “mom” and part “dad.”
3. Resist any temptation to allow your children to act as your caretaker. Children need to be allowed the freedom to be “children.” Taking on such responsibility at an early age degrades their self-esteem, feeds anger and hinders a child’s ability to relate to their peers.
4. Encourage your children to see your former spouse frequently. Promote a good relationship for the benefit of the child.
5. Do not argue with your former spouse in the presence of the children. No matter what the situation, the child will feel torn between taking “mommy’s” side and “daddy’s” side.
6. At every step during the divorce process, remind yourself that your children’s interests are paramount, even over your own.
7. If you are the non-primary parent, pay your child support.
8. If you are the primary parent and are not receiving child support, do not tell your children. This feeds a child’s sense of abandonment and erodes their stability.
9. Remember that the Court’s view child support and child custody as two separate and distinct issues. Children do not understand whether “mommy” and/or “daddy” paid child support, but they do understand that “mommy” and/or “daddy” wants to see me.
10. If at all possible, do not uproot your children. When a family is falling apart, a child needs a stable home and school life to buffer the trauma.
11. If you have an addiction problem, whether it be drugs, alcohol or any other affliction, seek help immediately. Such impairments inhibit your ability to reassure your children and give them the attention they need.
12. If you are having difficulty dealing with issues relating to your former spouse, discuss such issues with mental health professionals and counselors.
13. Reassure your children that they are loved and that they have no fault in the divorce.
Though these steps are not all-inclusive, they will assist you in dealing with the complex issues of a divorce and hopefully minimize the impact of the divorce process on the children.
Battered Women: End the Violence (the Protective Order)
The Texas Health and Human Services commission reported an estimated 982,916 Texas women were victims of domestic violence in the year 2006. In Texas, more than 800 women were killed by their domestic partners between 1998 and 2005. These statistics evidence the growing number of women in need of protection.
The legal system can offer some protection from family violence through the use of a Protective Order. A Protective Order is a civil court order that is designed to restrain an abuser from continuing acts of violence and threatening, harassing, or stalking conduct. All victims of family violence are eligible for a Protective Order. A court shall render a protective order if it finds that family violence has occurred and is likely to occur in the future. A victim’s testimony about family violence may be enough to obtain a protective order, without other documents such as a police reports.
Family, in Texas, has a very broad definition. Family can include relatives by blood or marriage, former spouses, parents of the same child (even if not married), foster parents or foster children, or any member or former member of a household (whether related by blood or marriage). Any adult member of the family may file for a Protective Order to protect himself or herself or any other member of the applicant’s family or household, including children or the elderly. The application may be obtained through the office of the county or district attorney, a private attorney or a legal aid program.
Protective orders can be important in ending or deterring family violence. The purpose of the order is to: prevent future violence, identify appropriate and inappropriate behavior and reinforce beliefs that family violence is wrong. A judge can create various conditions of a Protective Order. In such order he can force a respondent to vacate a residence, pay child support, attend counseling, and/or not possess a firearm. A Protective Order can require the abuser to stay away from the victim’s home, workplace, children, children’s school, and to keep a specific distance between the abuser and the victim. It can order the abuser to stop communicating in a harassing or threatening manner. Abusers who violate a protective order can be fined, arrested or both. Keep in mind, no piece of paper can protect you from all incidents of violence; however, a Protective Order provides a good deterrent in most situations.
If the court reviewing the application determines there is a real threat of family violence, the court may issue a temporary ex parte order without notice to the abuser which is valid for up to 20 days. The court will then set a hearing date for the final protective order which will take place within the 20 day period. At the final hearing, if the court so determines necessary, it may grant a final Protective Order that may be effective for up to two years.
Protective Orders are also available for people going through divorce. In this case, the Protective Order must be filed in the same court where the divorce is pending and the pleadings in both matters must state that the other matter is pending. It is important to remember that a Protective Order is not a custody determination and can not be used by one party to gain an advantage in a divorce proceeding.
Please contact your local law enforcement or domestic violence prevention agency immediately if you or someone you care about is a victim of family violence. Even if you are not eligible for a Protective Order, there may be other options available. For information on family violence contact the Texas Council on Family Violence, P.O. Box 161810, Austin, Texas 78716; Phone Number (512) 794-1133;
Website: http://www.tcfv.org.
The following is a safety planning list of things to get together if you are planning to leave: If you have children, take them and take your pets if you can:
Identification for yourself and your children:
Birth certificates
Social security cards
Driver’s license
Photo identification or passport
Welfare identification
Green card
Important personal papers:
Marriage certificate
Divorce papers
Custody orders
Protective orders or restraining orders
Health insurance papers and medical cards
Medical records for family members
School records for children
Investment papers/records and account numbers
Work permits
Immigration papers
Rental agreements/lease or house deed
Car title, registration and insurance information
Funds:
Cash
Credit cards
ATM card
Checkbook and bank (deposit slips)
Keys:
House
Car
Safety deposit box
Post office box
Way to communicate:
Phone calling card
Cell phone (pay as you go phone is less traceable)
Address book
Medications:
At least 1 month’s supply of all medications
Way to get by:
Jewelry or small objects you can sell if you run out of money
or your account access gets cut off
Things to help you cope:
Pictures
Keepsakes
Children’s small toys and books
The legal system can offer some protection from family violence through the use of a Protective Order. A Protective Order is a civil court order that is designed to restrain an abuser from continuing acts of violence and threatening, harassing, or stalking conduct. All victims of family violence are eligible for a Protective Order. A court shall render a protective order if it finds that family violence has occurred and is likely to occur in the future. A victim’s testimony about family violence may be enough to obtain a protective order, without other documents such as a police reports.
Family, in Texas, has a very broad definition. Family can include relatives by blood or marriage, former spouses, parents of the same child (even if not married), foster parents or foster children, or any member or former member of a household (whether related by blood or marriage). Any adult member of the family may file for a Protective Order to protect himself or herself or any other member of the applicant’s family or household, including children or the elderly. The application may be obtained through the office of the county or district attorney, a private attorney or a legal aid program.
Protective orders can be important in ending or deterring family violence. The purpose of the order is to: prevent future violence, identify appropriate and inappropriate behavior and reinforce beliefs that family violence is wrong. A judge can create various conditions of a Protective Order. In such order he can force a respondent to vacate a residence, pay child support, attend counseling, and/or not possess a firearm. A Protective Order can require the abuser to stay away from the victim’s home, workplace, children, children’s school, and to keep a specific distance between the abuser and the victim. It can order the abuser to stop communicating in a harassing or threatening manner. Abusers who violate a protective order can be fined, arrested or both. Keep in mind, no piece of paper can protect you from all incidents of violence; however, a Protective Order provides a good deterrent in most situations.
If the court reviewing the application determines there is a real threat of family violence, the court may issue a temporary ex parte order without notice to the abuser which is valid for up to 20 days. The court will then set a hearing date for the final protective order which will take place within the 20 day period. At the final hearing, if the court so determines necessary, it may grant a final Protective Order that may be effective for up to two years.
Protective Orders are also available for people going through divorce. In this case, the Protective Order must be filed in the same court where the divorce is pending and the pleadings in both matters must state that the other matter is pending. It is important to remember that a Protective Order is not a custody determination and can not be used by one party to gain an advantage in a divorce proceeding.
Please contact your local law enforcement or domestic violence prevention agency immediately if you or someone you care about is a victim of family violence. Even if you are not eligible for a Protective Order, there may be other options available. For information on family violence contact the Texas Council on Family Violence, P.O. Box 161810, Austin, Texas 78716; Phone Number (512) 794-1133;
Website: http://www.tcfv.org.
The following is a safety planning list of things to get together if you are planning to leave: If you have children, take them and take your pets if you can:
Identification for yourself and your children:
Birth certificates
Social security cards
Driver’s license
Photo identification or passport
Welfare identification
Green card
Important personal papers:
Marriage certificate
Divorce papers
Custody orders
Protective orders or restraining orders
Health insurance papers and medical cards
Medical records for family members
School records for children
Investment papers/records and account numbers
Work permits
Immigration papers
Rental agreements/lease or house deed
Car title, registration and insurance information
Funds:
Cash
Credit cards
ATM card
Checkbook and bank (deposit slips)
Keys:
House
Car
Safety deposit box
Post office box
Way to communicate:
Phone calling card
Cell phone (pay as you go phone is less traceable)
Address book
Medications:
At least 1 month’s supply of all medications
Way to get by:
Jewelry or small objects you can sell if you run out of money
or your account access gets cut off
Things to help you cope:
Pictures
Keepsakes
Children’s small toys and books
Tuesday, June 2, 2009
Litigation in Texas
The first step to begin a lawsuit in Texas is to finding a lawyer who is knowledgeable and experienced in the area of your legal concern.
In Texas, the filing of an original petition or a complaint officially starts a lawsuit. The complaint will state the facts of the case, spell out the legal issues as they relate to the facts and request the Court grant relief. The complaint is then filed with the court and served on the Defendant who will have a set period of time to respond.
After the complaint has been filed and the Defendant has entered his answer, the discovery phase of the lawsuit begins. During the discovery process, the counsel for each side will gather as much evidence as is reasonable to present their case to the judge or jury. Such discovery includes but is not limited to depositions (sworn testimony taken out of court); disclosure of witnesses, experts and other necessary information; interrogatories (written questions); requests for production of documents; requests for admissions; requests for business records, and electronically stored information (ESI), etc. Discovery may last from a few months to a year, and in some cases several years. Discovery rules can be very liberal, allowing a great deal of evidence to be revealed.
In Texas most courts require the parties to mediate a case before allowing it to go to trial. Mediation can be a useful process as it allows both sides to state their case to a neutral party who has experience in the issues being mediated and who will attempt to assist in the resolution of the case before the parties are forced to incur the expense of a trial. In many cases, the mediation process is a good gauge for a possible trial outcome. At a minimum, it allows each side to measure the strengths and weaknesses of the case.
The pre-trial conference takes place approximately one week prior to the case going to trial and presents yet another opportunity for counsel to settle the case or review the issues. During the pre-trial conference the counsel speak informally with the judge and agree to the undisputed issues. They share the evidence they intend to present during trial and the witnesses they plan to call to testify. The parties, along with the judge, are then able to plan the course of the trial.
After completion of the discovery, mediation and the pre-trial conference, should the parties be unable to settle the case, it will then be placed on the Court’s trial docket and proceeds to trial.
The trial most commonly proceeds in the following manner: Plaintiff’s attorney makes an opening statement detailing the facts of the case followed by the Defendant’s attorney detailing the defenses; Plaintiff’s witnesses and evidence are introduced, examined and cross-examined; Defendant’s witnesses and evidence are introduced, examined and cross-examined; Plaintiff and Defendant are allowed to introduce rebuttal evidence; and, finally, Plaintiff presents their closing argument, followed by the Defendant’s closing argument.
When a jury is hearing the case, a judge will instruct the jury as to the law that is to be applied to the issues. The jury will then retire to the jury room until a verdict is reached. Should the jury end in a deadlock, the judge will normally send the jury back to deliberate until a verdict is reached. If a verdict cannot be reached, the judge must declare a mistrial. If a verdict is returned, the judge will generally enter a judgment on the verdict.
The Nacol Law Firm P.C.
Law office of attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333
In Texas, the filing of an original petition or a complaint officially starts a lawsuit. The complaint will state the facts of the case, spell out the legal issues as they relate to the facts and request the Court grant relief. The complaint is then filed with the court and served on the Defendant who will have a set period of time to respond.
After the complaint has been filed and the Defendant has entered his answer, the discovery phase of the lawsuit begins. During the discovery process, the counsel for each side will gather as much evidence as is reasonable to present their case to the judge or jury. Such discovery includes but is not limited to depositions (sworn testimony taken out of court); disclosure of witnesses, experts and other necessary information; interrogatories (written questions); requests for production of documents; requests for admissions; requests for business records, and electronically stored information (ESI), etc. Discovery may last from a few months to a year, and in some cases several years. Discovery rules can be very liberal, allowing a great deal of evidence to be revealed.
In Texas most courts require the parties to mediate a case before allowing it to go to trial. Mediation can be a useful process as it allows both sides to state their case to a neutral party who has experience in the issues being mediated and who will attempt to assist in the resolution of the case before the parties are forced to incur the expense of a trial. In many cases, the mediation process is a good gauge for a possible trial outcome. At a minimum, it allows each side to measure the strengths and weaknesses of the case.
The pre-trial conference takes place approximately one week prior to the case going to trial and presents yet another opportunity for counsel to settle the case or review the issues. During the pre-trial conference the counsel speak informally with the judge and agree to the undisputed issues. They share the evidence they intend to present during trial and the witnesses they plan to call to testify. The parties, along with the judge, are then able to plan the course of the trial.
After completion of the discovery, mediation and the pre-trial conference, should the parties be unable to settle the case, it will then be placed on the Court’s trial docket and proceeds to trial.
The trial most commonly proceeds in the following manner: Plaintiff’s attorney makes an opening statement detailing the facts of the case followed by the Defendant’s attorney detailing the defenses; Plaintiff’s witnesses and evidence are introduced, examined and cross-examined; Defendant’s witnesses and evidence are introduced, examined and cross-examined; Plaintiff and Defendant are allowed to introduce rebuttal evidence; and, finally, Plaintiff presents their closing argument, followed by the Defendant’s closing argument.
When a jury is hearing the case, a judge will instruct the jury as to the law that is to be applied to the issues. The jury will then retire to the jury room until a verdict is reached. Should the jury end in a deadlock, the judge will normally send the jury back to deliberate until a verdict is reached. If a verdict cannot be reached, the judge must declare a mistrial. If a verdict is returned, the judge will generally enter a judgment on the verdict.
The Nacol Law Firm P.C.
Law office of attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333
What Will Happen to My Pet When I Die?: Providing a Future for your Pet
As a responsible pet owner, it is important to ensure their quality of care continues should something unexpected happen to you.
Is a will the best option?
A will takes effect only upon your death. It may not be probated and formally recognized until weeks or possibly months later. If legal disputes arise, the final settlement of property may be prolonged. Even the determination the rightful new owner of a pet may be delayed. This does not mean that you should not include a provision in your will to provide for your pet, it simply means that you should explore additional documents that compensate for a will’s limitations.
Setting up a Trust
A trust can provide for pets immediately because you determine when your trust becomes effective. When you create a trust for your pet, money is set side to be used for the pet’s care and trustees are specified to control the funds.
A trust can be written to exclude certain assets from the probate process so that funds are more readily available to care for your pet and can be structured to provide for a pet during a lengthy disability. Furthermore, trusts are legal entities that are relatively expensive to administer and maintain
An attorney can make sure that the trust is specific as to the animal, valid and enforceable. However, tying up a substantial amount of money or property in trust for an animal’s benefit may prove to be controversial.
Power of Attorney
A power of attorney, which authorized someone else to conduct your affairs for you while you are incapacitated have become a standard practice. The power of attorney can be written to become effective upon your physical or mental incapacitation and continue in effect upon your death. They are much simpler than trusts and do not create a legal entity that needs to be maintained by formal means. Provisions can be inserted authorizing your attorney-in-fact to take care of your pets, expend money to do so, and even place why our pets with permanent caregivers if appropriate.
Like other legal devices, the power of attorney is a document that by itself cannot ensure your pet is fed, walked, medicated, or otherwise cared for. It is simply a tool to assist your efforts in thinking ahead and finding temporary or permanent caregivers who can take over the care of your pet should the immediate need arise.
What is a reasonable sum to leave?
Documents should stipulate the amount and frequency of payments and whether they should be adjusted for inflation.
To answer this question you must take into account the age, health, estimated lifespan and number of pets involved. It also depends on how much care you wish the animal to receive. If the animal gets cancer or some other ailment, what kind of treatment do you want to provide? You may also want to consider burial or cremation and ceremonial expenses.
Leaving too little money may compromise the future care of your pet. Leaving too much money may cause problems with potential heirs.
Finally, you will want to make sure you include the cost involved in paying the caretaker and/or trustees for their time and effort.
The Nacol Law Firm P.C.
Law office of attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex area for over 30 years
Tel: 972-690-3333
Is a will the best option?
A will takes effect only upon your death. It may not be probated and formally recognized until weeks or possibly months later. If legal disputes arise, the final settlement of property may be prolonged. Even the determination the rightful new owner of a pet may be delayed. This does not mean that you should not include a provision in your will to provide for your pet, it simply means that you should explore additional documents that compensate for a will’s limitations.
Setting up a Trust
A trust can provide for pets immediately because you determine when your trust becomes effective. When you create a trust for your pet, money is set side to be used for the pet’s care and trustees are specified to control the funds.
A trust can be written to exclude certain assets from the probate process so that funds are more readily available to care for your pet and can be structured to provide for a pet during a lengthy disability. Furthermore, trusts are legal entities that are relatively expensive to administer and maintain
An attorney can make sure that the trust is specific as to the animal, valid and enforceable. However, tying up a substantial amount of money or property in trust for an animal’s benefit may prove to be controversial.
Power of Attorney
A power of attorney, which authorized someone else to conduct your affairs for you while you are incapacitated have become a standard practice. The power of attorney can be written to become effective upon your physical or mental incapacitation and continue in effect upon your death. They are much simpler than trusts and do not create a legal entity that needs to be maintained by formal means. Provisions can be inserted authorizing your attorney-in-fact to take care of your pets, expend money to do so, and even place why our pets with permanent caregivers if appropriate.
Like other legal devices, the power of attorney is a document that by itself cannot ensure your pet is fed, walked, medicated, or otherwise cared for. It is simply a tool to assist your efforts in thinking ahead and finding temporary or permanent caregivers who can take over the care of your pet should the immediate need arise.
What is a reasonable sum to leave?
Documents should stipulate the amount and frequency of payments and whether they should be adjusted for inflation.
To answer this question you must take into account the age, health, estimated lifespan and number of pets involved. It also depends on how much care you wish the animal to receive. If the animal gets cancer or some other ailment, what kind of treatment do you want to provide? You may also want to consider burial or cremation and ceremonial expenses.
Leaving too little money may compromise the future care of your pet. Leaving too much money may cause problems with potential heirs.
Finally, you will want to make sure you include the cost involved in paying the caretaker and/or trustees for their time and effort.
The Nacol Law Firm P.C.
Law office of attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex area for over 30 years
Tel: 972-690-3333
Monday, June 1, 2009
Step-parent Conflict: Put the Kids First
Thirty seven percent of families in the United States are blended families. Sixty percent of second marriages end in divorce. A biological parent has his hands full, but as most step-parents will tell you, their job is even more complicated.
Following a divorce, it is not uncommon for a new step-parent to become the target of unprovoked spite or anger. In many cases, the previous-spouse harbors unfounded fears that their child will look to a new step-parent as a mother or father replacement figure. This can engender resentment to what may already be an uncomfortable situation between parties. Regretfully, these issues often escalate very quickly. Such resentments place the children squarely in the middle of a bitter fight between the people they love the most and are not healthy for anyone involved. The pain of conflicting loyalties to each parent and a child’s feeling of being “caught in the middle” of such disputes exacts an enormous emotional toll on a child. When a parent is in a rage, it is not uncommon for a child to withdraw. The child’s behavior towards the non-primary parent may abruptly change. This change in behavior may have more to do with keeping the primary parent happy than it does with how they really feel about the non-primary parent or step-parent. It is essential that you make it clear to your child that you love them and will always be there for them, regardless of the emotional or less than rosy current circumstances.
It is crucial to a child’s self-esteem and emotional growth that parents avoid putting children in the middle of such disputes. This can be incredibly difficult, however, when a selfish or manipulative parent does not think twice about wrongfully placing his or her child in the middle of conflict. Children are very perceptive and as they grow older they will ultimately realize when a parent has lied to them and used them for their own emotional or financial gain. Though they may temporarily identify with the aggressors, in time they will deeply resent the parent who has manipulated them.
Regardless of the circumstances, it is critical that biological parents avoid arguments or conflicts in the presence of the children. Such conduct is conducive to parental alienation goals of the misguided previous spouse. If the child sees that you maintain a calm and collected demeanor, it gives them reason to pause and feel safe.
If a previous spouse is making statements to the child regarding issues that should only be discussed between adults, tell the child that such discussions are inappropriate and you will take them up with the other parent at another time.
It is ok to tell your child “I am sorry,” if they are upset, even if you are not the parent upsetting them. This validates that they are hurting and relieves any false guilt they may have over things that are being said and done when you are not present. It is sometimes helpful to use everyday situations to explain conflict to your child. As an example, when dealing with conflict explain that “brothers and sisters fight, but they still love each other. Families have to work through conflict in order to stay together. I would not leave you if you made a mistake, I would not want you to leave me.” Such statements reinforces that reasonable conflict is ok and assures the child that you will remain a constant force in their life regardless of the situation.
If you feel that the conflict has escalated to a point of becoming emotionally abusive and/or destructive to the child, consult an attorney. It may be in the best interest of the child that he or she be removed from the primary parent and placed with the non-primary parent so that he or she is allowed to love all parental figures, parents and step-parents alike, unconditionally.
Nacol Law Firm P.C.
Law office of attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333
Following a divorce, it is not uncommon for a new step-parent to become the target of unprovoked spite or anger. In many cases, the previous-spouse harbors unfounded fears that their child will look to a new step-parent as a mother or father replacement figure. This can engender resentment to what may already be an uncomfortable situation between parties. Regretfully, these issues often escalate very quickly. Such resentments place the children squarely in the middle of a bitter fight between the people they love the most and are not healthy for anyone involved. The pain of conflicting loyalties to each parent and a child’s feeling of being “caught in the middle” of such disputes exacts an enormous emotional toll on a child. When a parent is in a rage, it is not uncommon for a child to withdraw. The child’s behavior towards the non-primary parent may abruptly change. This change in behavior may have more to do with keeping the primary parent happy than it does with how they really feel about the non-primary parent or step-parent. It is essential that you make it clear to your child that you love them and will always be there for them, regardless of the emotional or less than rosy current circumstances.
It is crucial to a child’s self-esteem and emotional growth that parents avoid putting children in the middle of such disputes. This can be incredibly difficult, however, when a selfish or manipulative parent does not think twice about wrongfully placing his or her child in the middle of conflict. Children are very perceptive and as they grow older they will ultimately realize when a parent has lied to them and used them for their own emotional or financial gain. Though they may temporarily identify with the aggressors, in time they will deeply resent the parent who has manipulated them.
Regardless of the circumstances, it is critical that biological parents avoid arguments or conflicts in the presence of the children. Such conduct is conducive to parental alienation goals of the misguided previous spouse. If the child sees that you maintain a calm and collected demeanor, it gives them reason to pause and feel safe.
If a previous spouse is making statements to the child regarding issues that should only be discussed between adults, tell the child that such discussions are inappropriate and you will take them up with the other parent at another time.
It is ok to tell your child “I am sorry,” if they are upset, even if you are not the parent upsetting them. This validates that they are hurting and relieves any false guilt they may have over things that are being said and done when you are not present. It is sometimes helpful to use everyday situations to explain conflict to your child. As an example, when dealing with conflict explain that “brothers and sisters fight, but they still love each other. Families have to work through conflict in order to stay together. I would not leave you if you made a mistake, I would not want you to leave me.” Such statements reinforces that reasonable conflict is ok and assures the child that you will remain a constant force in their life regardless of the situation.
If you feel that the conflict has escalated to a point of becoming emotionally abusive and/or destructive to the child, consult an attorney. It may be in the best interest of the child that he or she be removed from the primary parent and placed with the non-primary parent so that he or she is allowed to love all parental figures, parents and step-parents alike, unconditionally.
Nacol Law Firm P.C.
Law office of attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333
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