Money talks, the Disabled don’t? I don’t think so

I went to probate court and fought as hard as I could fight, working for free in some cases and reduced fee in others. I desperately cried for help but everyone died or was sold to the highest bidder. It was not a nightmare. It hasn’t ended yet and I fear for those still in guardianship.

These people died in the protection of the guardianship program, designed to protect. They were protected from medical care, an education at the lowest federal standard, neglected in criminal ways, and kept from doctors who could save their lives. They were handed over to private professional guardians who exploited them for money and isolated them from their loved ones as they drugged them to the point of death. ”

Cause No. 415959; In re Andrew Stephen Keith Guardianship; Probate Court 3, Harris County

I am a licensed Texas attorney (1998) and certified attorney ad litem (AAL) by the State of Texas. I have represented the disabled for more than five years, with some of my work under the mentorship of Texas Education Agency Hearing Officer James Holtz. James Holtz is without question on a short list of special education hearing officers. Mr. Holtz served 25 years as a mediator and Judge for the State of Texas, charged with the duty to determine whether children received a free appropriate public education (“FAPE”), the minimum required by federal law, under the Individuals with Disabilities in Education Act (IDEA). The IDEA mandates disabled students be tested every three years unless the parent waives the testing. An IEP educational plan cannot be made without testing.

Andrew’s father waived testing for 9 years after ripping him from his mother, removing him from all medically necessary therapy for autism, and warehousing him in public school, where he languished in neglect as he further retreated into himself, unable to talk. I have never seen such an egregious case of educational and medical neglect and Randall Keith did not even care that the Family Court Judge ordered him to ensure Andrew had medical help for his severe language impairment. Andrew’s father waived all testing and all therapies because he did not want the inconvenience. Andrew was taken from his loving mother for revenge and to avoid paying child support with his multi-million dollar income.

I qualify as an expert under Texas Rule of Civil Procedure 702. Ironically, Judge Rory Olsen does not qualify as an expert by virtue of his lack of familiarity with special education. During the hearing, he asked “What’s an ARD?” The appointed lawyers who were board certified were qualified by the state but not qualified in reality, but were given the authority to decide Andrew’s “best interests.” His Lawyer and Temporary Guardian were so concerned with making money off of Andrew as I worked for free that they violated all of Andrew’s rights and three him to the wolves. Andrew could be in danger. Who will help him now? WE have no right to help him and Andrew has been stripped of his rights.

I could not remove the incompetent disqualified ad litems because the Judge decided his decision would be what they recommended and they recommended that the abusive father be appointed because the father is a millionaire who could pay their bill and his expert mother had insufficient funds.

I am also a pre-med major with three years of training at the University Health Science Center after which I studied to become a psychotherapist at the University of Houston program pre-doctorate before I went to law school. I understand dementia, autism, Alzheimers, and medical / psychological conditions more than most, although my true expertise is special education. I am also an author and member of the press. With the thousand plus hours I have given to low income Texans for free or reduced fee, I have been induced in the Texas State Bar Pro Bono College. Yet, I cannot help Andrew because I cannot beat the machine–the Texas Estates Code and probate bar.

Harris County “sold” Andrew in every sense of that word by imposing an illegal cost bond on Sharon that she could not pay. Simply for making a record of the illegal bond, I was threatened with jail 10+ times and intimidated. The person on the Legislative Committee who wrote the bond was Linda Goehrs, his own temporary guardian. His lawyer submitted her bill to be paid out of the $30,000 illegal bond, which escalated to $90,000 and his guardian, Goehrs testified that Harris County had insufficient funds to pay her bill. Randall Keith did not.

We lost before we ever filed. Guardianship was awarded to a disqualified child abuser and the Judge disqualified the qualified mother, a veriable expert in autism in my professional opinion as an expert–because Harris County has insufficient funds and Randall Keith did not. His lawyers, Fatima Breland, told us up front there be no experts because Sharon had no money. Andrew was the client she was supposed to zealously represent. Harris County had no money, so no interpreter was retained so that Linda and Fatima could understand what Andrew wanted in violation of his rights. The code mandates interpreters, but we had insufficient funds and the Ad litem, Fatima, placed her duty to zealously represent on me. Andrew was denied speech therapy, deemed medically necessary for him since age three–until the time of trial, by court appointed ad litems.

Linda Goehrs wrote the bond provision in the estates code and knew in 2012 it was not effective but she petitioned the Court to pay herself $30,000 to serve as Andrew’s guardian and submitted a further bill for $90,000. Judge Olsen screamed, “you can blame Candice Schwager when you are not paid $100,000″ and I suppose you can. Linda violated the rules for indigent disabled individuals and the Harris County fee guidelines and charged $375 per hour to learn on the job as I desperately fed her autism for 2 years hoping she would understand. I was not allowed to attend the special education meetings we demanded after seeing 7 years of neglect splashed through his educational record. It’s clear to me why now. Andrew was never declared incompetentbecause Harris County refused to fund experts and his ad litems would not even talk to my expert, a man with 50 years Board Certified Experience in Special Education and Psychology who designs special education schools and charges $700/hour as an expert–but worked for Andrew for free because of Andrew.

I had to work for free because Sharon could not stay in the case if I was paid, but managed to get one speech pathologist to testify speech was medically necessary. The family court ordered that the guardian give Andrew speech therapy, which his guardian refused to allow because, as she testified under oath, “I did not understand autism.” Too bad for Andrew, I suppose. Linda ended up quashing my subpoena to violate Andrew’s right to testify about his wishes. He wanted to be with his mother and made no secret of not wanting to even see his father again.

The Judge was not competent because he asked during the hearing “what is an ARD meeting?” I was left in the position of trying to qualify a board certified lawyer in probate who was incompetent to testify as an expert with an incompetent judge who never read Andrew’s educational and medical file since age 3, and unable to remove them, while also unable to qualify them because they were all incompetent. I was the expert under Rule 702 and my expert opinion is Sharon, his mother, was the expert of all of us. But Sharon was disqualified for money and the abusive thief was disqualified, but qualified for money.

Linda Goehrs did not read the summaries of 864 pages of Andrew’s medical records I provided or a two year stream of emails about child abuse, as I hoped against hope that a light bulb would turn on. She’s had 2 ½ years to do so. So did his lawyer, the attorney ad litem. Linda testified that she did not allow us to take Andrew to speech therapy because his incompetent abusive father said “it was a waste of time” and she “did not understand autism.” Linda committed crimes against Andrew by not providing medically necessary speech therapy, ordered by the family court judge. Apparently, she did not read the 10 years of family court files I sent to her and summarized. I gave her a pile of school and medical records 1 1/2 feet high and summarized them all. Were they read?

The Code says if a person is indigent, the County pays. When I begged that Section 665A be enforced and revealed the Legislative History, I was threatened with jail and then Judge Olsen stated on the record “Wouldn’t it be nice if Harris County had the money?” He denied my plea for a jury trial on the disqualification before he threw out mom and said I would not get a jury “because he was the ultimate arbiter of fact.”

I could not disqualify or qualify the attorney or temporary guardian because the judge never understood they weren’t qualified under the rules of evidence. And at the end of the day, I ended up representing Andrew and my client in a system that cared only about money and we had insufficient funds to beat the system. I lost and Andrew is a hostage because these reckless incompetent people think they are competent and have no idea what they have just done. I do and I am horrified. Now Sharon cannot file any more court actions or she will “never see Andrew again.”

When the case began, I prayed Charles Bearinger would stick with us. He volunteered pro bono when his rate is $700/hour. I offered him to Linda and Fatima and they did not call him on the phone or to trial. I could not call him because he was afraid to testify. Charles is Board Certified in Special Education and Psychology/Counseling with a combined total of more than 50 years of experience. The case was tragic and I fear for Andrew’s life because Randall once told his older son, who got away, “no one will hear you cry for help now.” Imagine Andrew’s nightmare.

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Social media can hang you in a divorce

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Electronic communications such as texts, email and even posts on social media sites such as Facebook and Twitter are fast becoming the most important pieces of evidence in divorce cases. In fact, 94 percent of 1,600 lawyers recently surveyed by the American Academy of Matrimonial Lawyers (AAML) claimed that text messages had increasingly become the most damaging evidence in divorce cases. The same survey shows sharp increases in evidence via texting (62 percent), social media (81 percent) and emails (23 percent). So, how can you protect yourself before and during a divorce?

We suggest you consider the following tips

Protecting your digital assets

The most important thing you can do to protect your digital world is to change all of your passwords on a rotating basis and do not write them anywhere snooping eyes may find them. Rules of thumb for strong passwords are using words not typically associated with you combined with a special character and number.

Not only does this apply to your email and social media accounts, but to especially to the password that “unlocks” your smartphone. As texts have increasingly become the most common form of evidence in divorce cases, these sometimes emotionally-charged messages need to be shielded from potentially prying eyes. We are not advocating dishonesty; but, we understand that there may be occasions where a person engages in communications they later regret. A myriad of life circumstances can cause even the best of us to fall short of our aspirations. We simply advise people to avoid a spiteful or angry spouse from taking unfair advantage of you in a divorce for lapses of judgment you probably regret.

Is snooping software legal?

Passwords are also important for your computer, laptop and new devices such as an iPad. Why? Some spouses try to obtain evidence (or even communications between their spouse and a divorce lawyer) by installing “snooping” or spyware software onto their spouse’s digital devices. Snooping software takes digital “pictures” every few seconds of incoming emails and other information, which can then be sent automatically to an email address.

The legalities of snooping software are often murky, so most divorce lawyers advise their clients to refrain from becoming a cyber spy. Courts are increasingly permitting the discovery of public posts on Facebook and Twitter, but occasionally even private emails. Emails are generally considered private and sometimes confidential or privileged if to a lawyer. This renders snooping software to capture a spouse’s emails potentially illegal. The result is Courts may be reluctant to admit this into evidence, if at all. It is important to note that divorce law / family law is evolving rapidly in the area of social media, texting, spyware and the like. This means that what might be inadmissible today may change tomorrow.

Worried about spyware?

If you are worried about spyware being installed unknowingly on your digital devices, there are anti-spyware programs that can detect them. However, not all anti-spyware programs can do the job. If you want to be certain you aren’t being “watched” by spyware? Take your devices to technicians who specialize in detecting digital spies.

The best practice is to avoid posting, tweeting, texting or emailing anything you would not want the World to see, including your spouse. But attorney-client communications are a concern. While they are privileged and inadmissible, the damage is done simply by viewing them-in seeing your strategies and plans of how to approach the case. If you are in a contentious divorce or believe it’s a matter of time, take time and protect yourself. You can lose custody of your children over this—in addition to significant assets.

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Child Custody Evaluations ~ Rolling the Dice on your Child’s future?

I hate to say it, but there is no way in God’s green earth I would turn the decision of my child’s wellbeing over to a psychologist whose values do not remotely resemble mine, much less do I know if they have a clue. You could get a great conservator doctor or a liberal Einstein alien who believes nothing that you do and so, will you simply roll the dice on your child and your future? Utter stupidity. Work it out. What in the world does a scientist know about real life as opposed to theory? This isn’t a science experiment.

Child custody evaluations are the most frightening, harrowing things I have witnessed in family courts and they are also prohibitively expensive so I would avoid them like the plague. With the undergraduate work I have done in this area combined with family counseling exposure, I simply do not believe even the best family counselors can meet with a child a few times and the parents for what amounts to mere hours and make decisions that alter their lives forever.  I have seen this work tragically in cases where a parent is an undiagnosed psychopath or person with a manipulative personality disorder. Salespeople are excellent at putting on a mask and becoming someone their are not.

Many times in a custody proceeding, the case will hinge on statements the children have made to the mental health professional.  That is a landmine waiting to happen because depending on the day your child is having or events that just blew up between you and your child, your life could be ruined or drastically differ. Let’s say your client comes into your office and has a lengthy story about everything the kids  say upon return from Dad’s home.

The children allege the step mother is mean, Dad leaves them alone with her, she has a pad lock on the refrigerator, she forces them outside while her own children remain indoors drinking tea from gold plated cups and eating crumpets. You get the idea, and if you have not heard this story in your practice yet, you will. The bottom line is the children are being affected and there may or may not be enough evidence to prove the children would be better in the other parent’s home. Your client knows her children. She knows they are miserable.

You ask the question, “what counselor are they seeing?” And she says “no one.” You see your case go down the tubes. The statements of the children are likely not to come in under these circumstances. (although you should research exceptions to hearsay because you may be able to argue state of mind, or that the statements are not being used to prove truth of the matter asserted, just the unhappiness of the child. But good luck with that once the Judge hears “Little Suzy told me…” ).  So, many times, the lawyer will direct the client to a mental health professional.

So, why can a mental health professional testify to what Little Suzy said and your client cannot? Statements made to an LPC, if foundation is properly laid, can be admissible. Texas Rules of evidence bars the introduction of a statement made to prove of the truth of the matter asserted. Texas Rules of Evidence 801 and 802. (For instance, a child says the sky was blue that day. If the issue at hand was the color of the sky, that is hearsay. However, if the purpose of the use of the statement is to show the child was outside that day, the statement may not be hearsay.  At least that is what I would argue.) the nightmare is that eyewitness testimony is inherently unreliable so we are now going to try this twice removed? I have also seen lazy court appointees who don’t care about the families but the money. Their reports are half baked and disastrous outcomes result.

So if a case is heavily reliant on the testimony of the LPC, the first step is to overcome the hearsay. Pursuant to Texas Rules of Evidence 803(4), allows for testimony of a statement “Made for Medical Diagnosis or Treatment. The statement must be made for–and is reasonably pertinent to–medical diagnosis or treatment; and describes medical history; past or present symptoms or sensations; their inception; or their general cause.” Technically each and every statement is subject to this scrutiny and unless the statement was used to make the diagnosis and prescribe treatment, it is not admissible. For example, if a child says in passing, my dad is mean, the prudent practioner will establish that the LPC used the statement to make diagnosis and prescribe treatment.

 

Further, a professional is the only person who can offer an opinion, make the diagnosis, or prescribe a treatment for the child. So, now you have the counselor secured, or any other mental health professional. How do you qualify the witness as an expert? I would ordinarily think a better practice would be using medical professionals who know the child. but that isn’t done.

To be admissible, the proponent must demonstrate: (1) that the expert is qualified; and (2) that the expert’s testimony is relevant and reliable. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001); Robinson, 923 S.W.2d at 556; see also Kraft, 77 S.W.3d at 807. Tex. R. Evid. 702. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

The Supreme Court of Texas adopted the United States Daubert construction of the Federal Rules of evidence and the Texas Court of Criminal Appeals decision in Kelly in Gammil v. Jack Williams Chevrolet, Inc. Gammil v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 720. The Court stated that “[i]n order to constitute scientific knowledge which will assist the trier of fact, the proposed testimony must be relevant and reliable.” Id.

“The requirement  that  the  proposed  testimony  be  relevant  incorporates  traditional  relevancy  analysis  under Rules 401 and 402 of the Texas Rules of Civil Evidence. Id. To be relevant, the proposed testimony must be “sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.” Id. Evidence that has no relationship to any of the issues in the case is irrelevant and does not satisfy Rule 702′s requirement that the testimony  be  of  assistance  to  the  jury.  Id.   It  is  thus  inadmissible  under Rule  702 as  well  as  under Rules   401 and 402.” Id.

In addition to being relevant, the underlying scientific technique or principle must be reliable.  Scientific evidence which is not grounded “in the methods and procedures of science” is no more than “subjective belief or unsupported speculation.” Id. Unreliable evidence is of no assistance to the trier of fact and is therefore inadmissible under Rule 702.” Id.

“There are many factors that a trial court may consider in making the threshold determination of admissibility under Rule 702. These factors include, but are not limited to:

  • the extent to which the theory has been or can be tested;
  • the extent to which the technique relies upon the subjective interpretation of the expert;
  • whether the theory has been subjected to peer review and/or publication;
  • the technique’s potential rate of error;
  • whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and
  • the non-judicial uses which have been made of the theory or technique.” Id.

 

 

Trial courts may consider other factors which are helpful to determining the reliability of the scientific evidence. The factors a trial court will find helpful in determining whether the underlying theories and techniques of the proffered evidence are scientifically reliable will differ with each particular case. Id. However, a distinction has developed in civil cases. Nenno v. State, 970 S.W.2d 549, 561 (Court of Crim. App. 1998). There was a portion of Nenno that was overruled and when you pull the case up in Westlaw, it has a red flag. However, Courts have continued to use the factors the Court held in that case for the purposes  of  testing the reliability of a soft-science expert witness.

“[i]n  2010,  this  Court,   with   a   different   composition,   issued   a   unanimous   opinion   in   which   the Nenno factors were applied in testing the reliability of a soft-science expert witness in a termination case. See In re S.R., No. 10–10–00063–CV, 2010 WL 4983484, at *2, 2010 Tex. App. LEXIS 9681 at **4– 6 (Tex. App.—Waco Dec. 8, 2010, pet. denied) (mem. op.). However, the S.R. opinion did not reference this Court’s prior J.B. opinion. See generally id. Nevertheless, a fair reading of this Court’s more recent pronouncement in S.R. yields a finding that we apply the Nenno factors to evaluate soft-science testimony in civil cases. See id. 2010 WL 4983484, at *2, 2010 Tex. App. LEXIS 9681 at **4–6. As such, it would appear that S.R. effectively overruled J.B. with respect to the analysis used to evaluate soft-science testimony in civil cases.”

While the Texas Supreme Court has not adopted the Nenno factors like they did Gammil, several Courts apply the Nenno factors in family law cases.   In the Interest of J.R. 2016 WL 6128159 (Tex. App. –Waco 2016).    There were three criteria set forth in Nenno to assist the courts in determining soft science testimony. Those factors were (1) whether the area of expertise is a legitimate one, (2) whether the subject matter of the expert’s testimony is within the scope of that field, and (3) whether the expert’s testimony properly relies upon or utilizes the principles involved in that field. Nenno v. State 970 S.W.2d 549, 561 (Court of Crim. App. 1998). The Court also noted that where the Daubert Robinson factors do not seem applicable, the analytical gap test should be applied in addition to the Nenno factors. That test is essentially evaluates the gap between the experts ultimate conclusion and the data and methodology utilized.”

My best advice is stay away from these evaluations. You are likely to regret it and it’s a 50/50 toss up unless you don’t interview well.

 

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FAQ in Texas Family Court from Parents

What is joint custody? What is sole custody?

In Texas, courts divide child custody issues into two different categories: conservatorship and possession and access.

Conservatorship is basically the rights and duties of the parents (i.e. to make decisions for the child regarding schooling, medical decisions, and psychiatric decisions, among many other things). Conservatorship can be done in different ways, including allowing one parent to make all the decisions (Sole Managing Conservatorship) or allowing both parents to jointly make the decisions (Joint Managing Conservatorship).

When determining the rights and duties of the parent(s), the court will decide what is in the “best interest” of the child, which takes into account a large number of factors.

Possession and access refers to when the parents have physical custody of the children or when they can visit with the children. Texas has two statutory possession and access schedules: standard and extended standard. These schedules dictate the time each parent spends with the child.

However, the parties can agree on different possession and access schedules based on their needs or the court can order a different possession and access schedule based on the best interest of the child.

 If both parents share custody does anyone pay child support?

Whether or not a parent has to pay child support depends on what the court determines to be in the best interests of the child.

In determining the best interests of the child, the court will consider evidence relating to a wide array of factors including: physical and emotional needs; physical and emotional danger; stability of home; plans for child; cooperation between parents; parenting skills; who was the child’s primary caregiver; the child’s preferences if the child is 12 or older; geographic proximity of the children; keeping siblings together; false reports of child abuse; and fitness of each parent (including abuse, physical force and family violence).

Typically the parent who is awarded the right to designate the primary residence and/or has possession and access to the child a majority of the time is the recipient of child support.

Can a parent refuse to allow visitation if child support is not paid?

No, child support and visitation do not go hand-in-hand. While the court can take into consideration how much possession and access to the child(ren) is being exercised when determining the amount of child support to be paid to an obligee, a parent nor a court can refuse to allow visitation solely on the issue of non-payment of child support.

When can my child decide which parent to live with?

In Texas, a child’s decision cannot be the sole factor in determining which parent the child lives with. However, once the child reaches the age of 12, and upon motion, the court can consider the child’s wishes as to whom he/she wishes to live with.

Do grandparents have custody and visitation rights?

No, grandparents do not typically have custody and visitation rights, unless they can meet the statutory requirements, including:

1.) at least one parent not having their parental rights terminated at the time relief is requested;

2.) overcoming the presumption that a fit parent acts in the best interest of their child in denying possession or it would significantly impair the child’s physical health or emotional well being; and

3.) the grandparent must be the parent of the child and that parent of the child must be either i.) declared incompetent by the court; ii.) is dead, or iii.) does not have actual or court-ordered possession to the child.

What is a parenting plan, and do I need one?

Yes, every case involving children needs a parenting plan. A parenting plan sets the rights and duties of a parent regarding the child. Some rights and duties include: right to designate primary residence; right to make decisions regarding the child’s health; rights to make decisions regarding the child’s education; duty to provide health insurance; duty to provide child support and many others.

If my separation agreement includes custody/support can it be included in the divorce decree? Texas does not have separation agreements. Instead the state has temporary orders. Upon agreement of the parties or upon order of the court, the possession and access/support terms from the temporary orders can be included in the final decree of divorce.

Upon filing of a divorce or other family matter, a party may request the court enter a temporary order governing the matter. Temporary orders allow the parties to get agreed upon or court-ordered “rules” governing various aspects of the domestic arena, including child conservatorship, possession and access, child support, property division, spousal support and various other items.

Possession and access will be decided on a temporary basis in the temporary orders either by agreement or by order of the court. Possession and access will be decided on a permanent basis in either the final decree of divorce or in the order on Suit Affecting Parent-Child Relationship (SAPCR).

When can I modify custody?

You can modify custody if it is in the best interests of the child and:

1.) the parents agree;

2.) if the child is 12 years old or older and tells the court he wants to change his primary caretaker;

3.) the person with the right to determine the primary residence relinquishes care and possession of the child for at least 6 months; or there has been a material and substantial change in the circumstances of either the child, the parent, the conservator or another significant party.

The most common way people modify custody is by showing that there has been a significant change in a party’s circumstances, which is a very broad category and can be proven in a variety of ways.

Who will get custody of our child(ren) and how is custody decided?

The court will determine possession and access to the child/children based on the best interest of the child.

In determining the best interest of the child, the court will consider evidence relating to a wide array of factors including: physical and emotional needs; physical and emotional danger; stability of home; plans for child; cooperation between parents; parenting skills; who was the child’s primary caregiver; the child’s preferences if the child is 12 or older; geographic proximity of the children; keeping siblings together; false reports of child abuse; and fitness of each parent (including: abuse; physical force; family violence).

How can I increase my chances at getting a larger custody agreement?

You can increase their changes at getting a larger custody agreement by proving to the court that you are an integral part of the children’s lives. This includes showing the court that you exercise regular visitation; that you take the kids to their extra-curricular activities; that you care for them on a daily basis; and that you are stable and competent to take the children for longer periods of time.

It is always helpful to keep a journal and calendar of everything that you do for and with the children leading up to the temporary orders or final determination of custody so you can show the court, mediator or opposing party that you are capable and deserving of a larger possession and access period.

What is visitation?

Texas does not use the term “visitation.” However, as stated above Texas uses the terms “possession and access.” Possession and access refers to when the parents have physical custody of the children or when they can visit with the children. Texas has two statutory possession and access schedules: standard and extended standard.

These schedules dictate the time each parent spends with the child. However, the parties can agree on different possession and access schedules based on their needs or the court can order a different possession and access schedule based on the best interest of the child.

Can a judge order supervised visitation or no visitation?

If the other party can prove that the children’s emotional or physical well-being is at risk of being harmed, the court can order supervised visitation.

 

You should know extensive and detailed information about your child. For example, you should know:

Child’s birthdate;
Child’s allergies;
Child’s special needs;
Child’s medical background;
Child’s schedule;
Child’s extracurricular activities and the names of all sponsors/coaches;
Your children’s school, teachers and grade.

Do I need to use a Custody Evaluator?

In Texas, we typically don’t use Guardian ad Litems, we more typically use amicus attorneys. A Guardian ad Litem and/or amicus attorney is often used when the children are under the influence of the strength of one party or the children are experiencing a great amount of change. It allows the child to have an advocate for their rights who is not persuaded by other factors.

Because the parties sometimes become wrapped up in “side issues,” it may be most helpful to the judge to have a third party neutral or advocate for the children come in and evaluate the case. Typically Guardian ad Litems and amicus attorneys are used when there is to be a termination of the parental rights, an adoption, or if there is physical/mental abuse.

Will my child need to appear in court?

Typically your child will not need to appear in court unless one of the parties has filed a Motion to Confer with Child. This type of motion is usually filed when one of the children is 12 or older and wants to express with the court whom they would like to reside with.

Please note that it is never a good idea to bring your child to the court for any family matters.

What if my wife tries to move the kids out state?

It is always important to try and maintain a stable and safe environment for the kids and the judge will try and maintain that stable and safe environment. Typically counties will have a standing order that will prohibit the parties from taking the children out of state, or your attorney can help you get a Temporary Restraining Order that will prevent your wife from moving out of state.

If you already have orders in your case regarding possession and access to your children, you can still file a Temporary Restraining Order to keep your wife from moving the children from the state. It is possible to limit the children’s residence to the state of Texas, the current county and/or contiguous counties.

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Sexism in the Courts? Small Children, probably

In the United States, state laws involving custody do not automatically favor the mother over the father, but courts apply the best interests doctrine to determine what is in the best interests of the child. While a father’s legal rights with a newborn are usually the same as with an older child, cases involving newborn babies have unique circumstances. The well-being of the baby should be the paramount consideration, and courts consider the best interests of the child, over the desires or requests of either parent.

Legal Definition of “Father”

In the United States, if a mother and father are married and the father is named on the baby’s birth certificate, he is granted parental rights of custody and visitation, provided he is a fit parent. The situation is less clear when there is a question of paternity or if the parents are unmarried. If paternity is questioned and the mother will not let the father visit the newborn child, the man should file for a paternity test in family court in the jurisdiction where the mother and child live. The court will grant parental rights if a DNA test proves paternity.
Legal Custody

Custody is divided into physical custody and legal custody. Physical custody is where the child lives. Legal custody is the right of biological parents to be involved in important legal decisions relating to the child’s upbringing, what school he goes to, what religious preference or church (if any) the child will attend, and what health care he receives. Custody, including legal and physical custody, may be sole, joint or shared. Courts will usually award joint legal custody, unless doing so is not in the child’s best interests. This could include an unfit, incarcerated, abusive or neglectful parent. Joint custody means both parents have equal rights to be involved in the important decisions affecting the child, from birth until the child is old enough to make his own decisions, usually age 18 in most states.
Physical custody refers to the child’s primary residence. In the case of unmarried parents, the court tends to award physical custody to the mother. Physical custody may be awarded to the father, if the mother is deemed to be unfit. In the case of a newborn, physical custody is often awarded to the mother, if she is breastfeeding the child throughout the night, says attorney Lina Guillan for DivorceNet.com. The father is likely to have few or no overnight stays with the baby until she no longer requires night feeding. This comes down to what is in the best interests of the baby, rather than giving preference to either parent over the other.
Parenting Time

A father who is not granted physical custody (sole or joint) of his newborn baby is usually granted visitation rights, often called parenting time, according to what the court determines is in the best interests of the infant. If the parents are unable to reach an agreement, the court will set up a schedule of visitation in a parenting plan, taking into account the baby’s feeding schedule and sleep patterns. “Creating a Parenting Plan: Children Under Three” by the Los Angeles Superior Court suggests a two-hour visit on three non-consecutive days per week for babies from birth up to 6 months.

If the baby is drinking formula from a bottle, overnight stays with the father may be a possibility. If the father suspects the mother is using breastfeeding as a reason to deny him overnight stays, the court would have to decide whether breastfeeding was more important than the development of the bond between father and baby. Each decision is made by the court, after careful and thorough analysis of the facts of the case. Years ago, an idea developed in the courts that children under 5 simply needed the nurturance of their mothers and the law has remained that way. The problem is that once a status quo is obtained, it tends not to change, creating an uphill battle later unless the mother seriously goes off the deep end. Couples would do well to plan these issues together. Or else, it’s a no win situation.

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Family Law: Relocation challenging absent compelling evidence

 

Unless there is a history of parental misconduct, such as domestic violence or abuse, Texas courts typically award divorcing parents “joint managing conservatorship” (referred to as “joint legal custody” in some states) over their child. This means the parents will share the right to make important decisions about their child’s life, including where the child will live. Although there may be many great reasons for a parent to relocate for a better job, more often than not the Judge will deny relocation because of the prejudice to the parent not moving. That’s not to say it’s impossible, but my experience has shown an uphill battle.

Divorcing parents can come up with a joint managing conservatorship arrangement on their own, and turn their agreement into a document called a “parenting plan.” However, if no parenting plan is filed with the court, a judge may decide custody issues.
In Texas, there is a legal presumption that both parents should be joint managing conservators of their child. However, this presumption may be rebutted (overcome) if the court finds there is a history of family violence involving either parent. If there is a history of domestic violence, or if one parent has otherwise demonstrated an inability to act in the child’s best interests, the court may order “sole managing conservatorship,” which means only one parent will make decisions regarding the child’s welfare.

  • When making custody decisions, courts consider several factors, including:
    whether the child’s physical, psychological, and emotional needs and development will benefit from the proposed arrangement
    the parents’ abilities to make the child’s welfare their first priority and reach shared decisions that are in the child’s best interests
    whether each parent can encourage a positive relationship between the child and the other parent
    whether both parents participated in child rearing before the divorce or custody action
    the geographical proximity of the parents’ residences
    the child’s preference (if the child is at least 12 years old), and
    any other factor the court deems relevant to the decision.

In an agreed-upon joint managing conservatorship arrangement, parents may state that neither parent is the “primary” parent, and simply agree that the child’s residence will remain within a particular geographic area. The parents can then create a “shared possession schedule” designating exactly when and where the child will spend time with each parent. When parents can’t reach an agreement, a judge will have to decide for them.

When the court makes an order awarding joint managing conservatorship, the court must also designate one parent as the “primary parent” (the parent that has the exclusive right to determine the child’s primary residence). The court must also establish a geographic area within with the primary parent can maintain the child’s primary residence. The other parent then visits the child in accordance with a detailed visitation schedule.

In most cases, the judge’s initial custody orders prohibit the primary parent from moving outside of a specific area (usually the child’s current county of residence plus any contiguous counties). Therefore, when parents want to move out of state with their children, they need to get a court order allowing them to do so; they can’t just pick up and leave.

Even if you have an older order (or agreement) that doesn’t restrict your child’s residence to a particular area, you still need to give the other parent notice if you intend to move with the child. If your child’s other parent wants to try to stop you from moving, he or she may file an application for a temporary restraining order (legal paperwork), which prevents you from moving until a court can hold a relocation hearing.
At the hearing, you’ll have to show compelling reasons for the proposed move, which may include a job relocation (if you can’t find comparable work locally), or a relocation to be closer to family, who will help support and care for the child. If the court suspects that you’re moving to interfere with the child’s relationship with the other parent, you will not be allowed to go. Food for thought before your final orders are signed.

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Child Custody in Texas, Tex. Fam. Code 153.001

 

Consider the following sections in terms of the Judge’s discretion to ultimately decide, but a mandate that all considerations be factored into the decision if you are wondering how your case might turn out:

Sec. 153.001. PUBLIC POLICY. (a) The public policy of this state is to:
(1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
(2) provide a safe, stable, and nonviolent environment for the child; and
(3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.
(b) A court may not render an order that conditions the right of a conservator to possession of or access to a child on the payment of child support
Sec. 153.002. BEST INTEREST OF CHILD. The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.
Sec. 153.003. NO DISCRIMINATION BASED ON SEX OR MARITAL STATUS. The court shall consider the qualifications of the parties without regard to their marital status or to the sex of the party or the child in determining:
(1) which party to appoint as sole managing conservator;
(2) whether to appoint a party as joint managing conservator; and
(3) the terms and conditions of conservatorship and possession of and access to the child.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.
Sec. 153.004. HISTORY OF DOMESTIC VIOLENCE OR SEXUAL ABUSE. (a) In determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force, or evidence of sexual abuse, by a party directed against the party’s spouse, a parent of the child, or any person younger than 18 years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit.
(b) The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child, including a sexual assault in violation of Section 22.011 or 22.021, Penal Code, that results in the other parent becoming pregnant with the child. A history of sexual abuse includes a sexual assault that results in the other parent becoming pregnant with the child, regardless of the prior relationship of the parents. It is a rebuttable presumption that the appointment of a parent as the sole managing conservator of a child or as the conservator who has the exclusive right to determine the primary residence of a child is not in the best interest of the child if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by that parent directed against the other parent, a spouse, or a child.
(c) The court shall consider the commission of family violence or sexual abuse in determining whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator.
(d) The court may not allow a parent to have access to a child for whom it is shown by a preponderance of the evidence that:
(1) there is a history or pattern of committing family violence during the two years preceding the date of the filing of the suit or during the pendency of the suit; or
(2) the parent engaged in conduct that constitutes an offense under Section 21.02, 22.011, 22.021, or 25.02, Penal Code, and that as a direct result of the conduct, the victim of the conduct became pregnant with the parent’s child.
(d-1) Notwithstanding Subsection (d), the court may allow a parent to have access to a child if the court:
(1) finds that awarding the parent access to the child would not endanger the child’s physical health or emotional welfare and would be in the best interest of the child; and
(2) renders a possession order that is designed to protect the safety and well-being of the child and any other person who has been a victim of family violence committed by the parent and that may include a requirement that:
(A) the periods of access be continuously supervised by an entity or person chosen by the court;
(B) the exchange of possession of the child occur in a protective setting;
(C) the parent abstain from the consumption of alcohol or a controlled substance, as defined by Chapter 481, Health and Safety Code, within 12 hours prior to or during the period of access to the child; or
(D) the parent attend and complete a battering intervention and prevention program as provided by Article 42.141, Code of Criminal Procedure, or, if such a program is not available, complete a course of treatment under Section 153.010.
(e) It is a rebuttable presumption that it is not in the best interest of a child for a parent to have unsupervised visitation with the child if credible evidence is presented of a history or pattern of past or present child neglect or physical or sexual abuse by that parent directed against the other parent, a spouse, or a child.
(f) In determining under this section whether there is credible evidence of a history or pattern of past or present child neglect or physical or sexual abuse by a parent directed against the other parent, a spouse, or a child, the court shall consider whether a protective order was rendered under Chapter 85, Title 4, against the parent during the two-year period preceding the filing of the suit or during the pendency of the suit.
Sec. 153.005. APPOINTMENT OF SOLE OR JOINT MANAGING CONSERVATOR. (a) In a suit, except as provided by Section 153.004, the court:
(1) may appoint a sole managing conservator or may appoint joint managing conservators; and
(2) if the parents are or will be separated, shall appoint at least one managing conservator.
(b) A managing conservator must be a parent, a competent adult, the Department of Family and Protective Services, or a licensed child-placing agency.
(c) In making an appointment authorized by this section, the court shall consider whether, preceding the filing of the suit or during the pendency of the suit:
(1) a party engaged in a history or pattern of family violence, as defined by Section 71.004;
(2) a party engaged in a history or pattern of child abuse or child neglect; or
(3) a final protective order was rendered against a party.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.
Amended by:
Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 1.043, eff. April 2, 2015.
Acts 2015, 84th Leg., R.S., Ch. 117 (S.B. 817), Sec. 3, eff. September 1, 2015.
Sec. 153.006. APPOINTMENT OF POSSESSORY CONSERVATOR. (a) If a managing conservator is appointed, the court may appoint one or more possessory conservators.
(b) The court shall specify the rights and duties of a person appointed possessory conservator.
(c) The court shall specify and expressly state in the order the times and conditions for possession of or access to the child, unless a party shows good cause why specific orders would not be in the best interest of the child.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.
Sec. 153.007. AGREED PARENTING PLAN. (a) To promote the amicable settlement of disputes between the parties to a suit, the parties may enter into a written agreed parenting plan containing provisions for conservatorship and possession of the child and for modification of the parenting plan, including variations from the standard possession order.
(b) If the court finds that the agreed parenting plan is in the child’s best interest, the court shall render an order in accordance with the parenting plan.
(c) Terms of the agreed parenting plan contained in the order or incorporated by reference regarding conservatorship or support of or access to a child in an order may be enforced by all remedies available for enforcement of a judgment, including contempt, but are not enforceable as a contract.
(d) If the court finds the agreed parenting plan is not in the child’s best interest, the court may request the parties to submit a revised parenting plan. If the parties do not submit a revised parenting plan satisfactory to the court, the court may, after notice and hearing, order a parenting plan that the court finds to be in the best interest of the child.

 
Sec. 153.00715. DETERMINATION OF VALIDITY AND ENFORCEABILITY OF CONTRACT CONTAINING AGREEMENT TO ARBITRATE. (a) If a party to a suit affecting the parent-child relationship opposes an application to compel arbitration or makes an application to stay arbitration and asserts that the contract containing the agreement to arbitrate is not valid or enforceable, notwithstanding any provision of the contract to the contrary, the court shall try the issue promptly and may order arbitration only if the court determines that the contract containing the agreement to arbitrate is valid and enforceable against the party seeking to avoid arbitration.
(b) A determination under this section that a contract is valid and enforceable does not affect the court’s authority to stay arbitration or refuse to compel arbitration on any other ground provided by law.
(c) This section does not apply to:
(1) a court order;
(2) an agreed parenting plan described by Section 153.007;
(3) a mediated settlement agreement described by Section 153.0071;
(4) a collaborative law agreement described by Section 153.0072; or
(5) any other agreement between the parties that is approved by a court.
Sec. 153.009. INTERVIEW OF CHILD IN CHAMBERS. (a) In a nonjury 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.
(b) In a nonjury 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.
(c) Interviewing a child does not diminish the discretion of the court in determining the best interests of the child.
(d) 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.
(e) 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.
(f) 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 when the child is 12 years of age or older. A record of the interview shall be part of the record in the case.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1997, 75th Leg., ch. 781, Sec. 1, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1289, Sec. 2, eff. Sept. 1, 2001.
Amended by:
Acts 2005, 79th Leg., Ch. 916 (H.B. 260), Sec. 9, eff. June 18, 2005.
Sec. 153.013. FALSE REPORT OF CHILD ABUSE. (a) If a party to a pending suit affecting the parent-child relationship makes a report alleging child abuse by another party to the suit that the reporting party knows lacks a factual foundation, the court shall deem the report to be a knowingly false report.
(b) Evidence of a false report of child abuse is admissible in a suit between the involved parties regarding the terms of conservatorship of a child.
(c) If the court makes a finding under Subsection (a), the court shall impose a civil penalty not to exceed $500.

Added by Acts 1995, 74th Leg., ch. 751, Sec. 28, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 786, Sec. 2, eff. Sept. 1, 1997.
Sec. 153.014. VISITATION CENTERS AND VISITATION EXCHANGE FACILITIES. A county may establish a visitation center or a visitation exchange facility for the purpose of facilitating the terms of a court order providing for the possession of or access to a child.
Sec. 153.015. ELECTRONIC COMMUNICATION WITH CHILD BY CONSERVATOR. (a) In this section, “electronic communication” means any communication facilitated by the use of any wired or wireless technology via the Internet or any other electronic media. The term includes communication facilitated by the use of a telephone, electronic mail, instant messaging, videoconferencing, or webcam.
(b) If a conservator of a child requests the court to order periods of electronic communication with the child under this section, the court may award the conservator reasonable periods of electronic communication with the child to supplement the conservator’s periods of possession of the child. In determining whether to award electronic communication, the court shall consider:
(1) whether electronic communication is in the best interest of the child;
(2) whether equipment necessary to facilitate the electronic communication is reasonably available to all parties subject to the order; and
(3) any other factor the court considers appropriate.
(c) If a court awards a conservator periods of electronic communication with a child under this section, each conservator subject to the court’s order shall:
(1) provide the other conservator with the e-mail address and other electronic communication access information of the child;
(2) notify the other conservator of any change in the e-mail address or other electronic communication access information not later than 24 hours after the date the change takes effect; and
(3) if necessary equipment is reasonably available, accommodate electronic communication with the child, with the same privacy, respect, and dignity accorded all other forms of access, at a reasonable time and for a reasonable duration subject to any limitation provided by the court in the court’s order.
(d) The court may not consider the availability of electronic communication as a factor in determining child support. The availability of electronic communication under this section is not intended as a substitute for physical possession of or access to the child where otherwise appropriate.
(e) In a suit in which the court’s order contains provisions related to a finding of family violence in the suit, including supervised visitation, the court may award periods of electronic communication under this section only if:
(1) the award and terms of the award are mutually agreed to by the parties; and
(2) the terms of the award:
(A) are printed in the court’s order in boldfaced, capitalized type; and
(B) include any specific restrictions relating to family violence or supervised visitation, as applicable, required by other law to be included in a possession or access order.
SUBCHAPTER B. PARENT APPOINTED AS CONSERVATOR: IN GENERAL

Sec. 153.071. COURT TO SPECIFY RIGHTS AND DUTIES OF PARENT APPOINTED A CONSERVATOR. If both parents are appointed as conservators of the child, the court shall specify the rights and duties of a parent that are to be exercised:
(1) by each parent independently;
(2) by the joint agreement of the parents; and
(3) exclusively by one parent.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.
Sec. 153.072. WRITTEN FINDING REQUIRED TO LIMIT PARENTAL RIGHTS AND DUTIES. The court may limit the rights and duties of a parent appointed as a conservator if the court makes a written finding that the limitation is in the best interest of the child.
Sec. 153.073. RIGHTS OF PARENT AT ALL TIMES. (a) Unless limited by court order, a parent appointed as a conservator of a child has at all times the right:
(1) to receive information from any other conservator of the child concerning the health, education, and welfare of the child;
(2) to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;
(3) of access to medical, dental, psychological, and educational records of the child;
(4) to consult with a physician, dentist, or psychologist of the child;
(5) to consult with school officials concerning the child’s welfare and educational status, including school activities;
(6) to attend school activities;
(7) to be designated on the child’s records as a person to be notified in case of an emergency;
(8) to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and
(9) to manage the estate of the child to the extent the estate has been created by the parent or the parent’s family.
(b) The court shall specify in the order the rights that a parent retains at all times.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 29, eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 1036, Sec. 6, eff. Sept. 1, 2003.
Sec. 153.074. RIGHTS AND DUTIES DURING PERIOD OF POSSESSION. Unless limited by court order, a parent appointed as a conservator of a child has the following rights and duties during the period that the parent has possession of the child:
(1) the duty of care, control, protection, and reasonable discipline of the child;
(2) the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;
(3) the right to consent for the child to medical and dental care not involving an invasive procedure; and
(4) the right to direct the moral and religious training of the child.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 30, eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 1036, Sec. 7, eff. Sept. 1, 2003.
Sec. 153.075. DUTIES OF PARENT NOT APPOINTED CONSERVATOR. The court may order a parent not appointed as a managing or a possessory conservator to perform other parental duties, including paying child support.
Sec. 153.076. DUTY TO PROVIDE INFORMATION. (a) The court shall order that each conservator of a child has a duty to inform the other conservator of the child in a timely manner of significant information concerning the health, education, and welfare of the child.
(b) The court shall order that each conservator of a child has the duty to inform the other conservator of the child if the conservator resides with for at least 30 days, marries, or intends to marry a person who the conservator knows:
(1) is registered as a sex offender under Chapter 62, Code of Criminal Procedure; or
(2) is currently charged with an offense for which on conviction the person would be required to register under that chapter.
(b-1) The court shall order that each conservator of a child has the duty to inform the other conservator of the child if the conservator:
(1) establishes a residence with a person who the conservator knows is the subject of a final protective order sought by an individual other than the conservator that is in effect on the date the residence with the person is established;
(2) resides with, or allows unsupervised access to a child by, a person who is the subject of a final protective order sought by the conservator after the expiration of the 60-day period following the date the final protective order is issued; or
(3) is the subject of a final protective order issued after the date of the order establishing conservatorship.
(c) The notice required to be made under Subsection (b) must be made as soon as practicable but not later than the 40th day after the date the conservator of the child begins to reside with the person or the 10th day after the date the marriage occurs, as appropriate. The notice must include a description of the offense that is the basis of the person’s requirement to register as a sex offender or of the offense with which the person is charged.
(c-1) The notice required to be made under Subsection (b-1) must be made as soon as practicable but not later than:
(1) the 30th day after the date the conservator establishes residence with the person who is the subject of the final protective order, if the notice is required by Subsection (b-1)(1);
(2) the 90th day after the date the final protective order was issued, if the notice is required by Subsection (b-1)(2); or
(3) the 30th day after the date the final protective order was issued, if the notice is required by Subsection (b-1)(3).
(d) A conservator commits an offense if the conservator fails to provide notice in the manner required by Subsections (b) and (c), or Subsections (b-1) and (c-1), as applicable. An offense under this subsection is a Class C misdemeanor.
SUBCHAPTER C. PARENT APPOINTED AS SOLE OR JOINT MANAGING CONSERVATOR

Sec. 153.131. PRESUMPTION THAT PARENT TO BE APPOINTED MANAGING CONSERVATOR. (a) Subject to the prohibition in Section 153.004, unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.
(b) It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child. A finding of a history of family violence involving the parents of a child removes the presumption under this subsection.
Sec. 153.132. RIGHTS AND DUTIES OF PARENT APPOINTED SOLE MANAGING CONSERVATOR. Unless limited by court order, a parent appointed as sole managing conservator of a child has the rights and duties provided by Subchapter B and the following exclusive rights:
(1) the right to designate the primary residence of the child;
(2) the right to consent to medical, dental, and surgical treatment involving invasive procedures;
(3) the right to consent to psychiatric and psychological treatment;
(4) the right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;
(5) the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
(6) the right to consent to marriage and to enlistment in the armed forces of the United States;
(7) the right to make decisions concerning the child’s education;
(8) the right to the services and earnings of the child; and
(9) except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government.
Sec. 153.133. PARENTING PLAN FOR JOINT MANAGING CONSERVATORSHIP. (a) If a written agreed parenting plan is filed with the court, the court shall render an order appointing the parents as joint managing conservators only if the parenting plan:
(1) designates the conservator who has the exclusive right to designate the primary residence of the child and:
(A) establishes, until modified by further order, the geographic area within which the conservator shall maintain the child’s primary residence; or
(B) specifies that the conservator may designate the child’s primary residence without regard to geographic location;
(2) specifies the rights and duties of each parent regarding the child’s physical care, support, and education;
(3) includes provisions to minimize disruption of the child’s education, daily routine, and association with friends;
(4) allocates between the parents, independently, jointly, or exclusively, all of the remaining rights and duties of a parent provided by Chapter 151;
(5) is voluntarily and knowingly made by each parent and has not been repudiated by either parent at the time the order is rendered; and
(6) is in the best interest of the child.
(b) The agreed parenting plan may contain an alternative dispute resolution procedure that the parties agree to use before requesting enforcement or modification of the terms and conditions of the joint conservatorship through litigation, except in an emergency.
(c) Notwithstanding Subsection (a)(1), the court shall render an order adopting the provisions of a written agreed parenting plan appointing the parents as joint managing conservators if the parenting plan:
(1) meets all the requirements of Subsections (a)(2) through (6); and
(2) provides that the child’s primary residence shall be within a specified geographic area.
Sec. 153.134. COURT-ORDERED JOINT CONSERVATORSHIP. (a) If a written agreed parenting plan is not filed with the court, the court may render an order appointing the parents joint managing conservators only if the appointment is in the best interest of the child, considering the following factors:
(1) whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators;
(2) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;
(3) whether each parent can encourage and accept a positive relationship between the child and the other parent;
(4) whether both parents participated in child rearing before the filing of the suit;
(5) the geographical proximity of the parents’ residences;
(6) if the child is 12 years of age or older, the child’s preference, if any, regarding the person to have the exclusive right to designate the primary residence of the child; and
(7) any other relevant factor.
(b) In rendering an order appointing joint managing conservators, the court shall:
(1) designate the conservator who has the exclusive right to determine the primary residence of the child and:
(A) establish, until modified by further order, a geographic area within which the conservator shall maintain the child’s primary residence; or
(B) specify that the conservator may determine the child’s primary residence without regard to geographic location;
(2) specify the rights and duties of each parent regarding the child’s physical care, support, and education;
(3) include provisions to minimize disruption of the child’s education, daily routine, and association with friends;
(4) allocate between the parents, independently, jointly, or exclusively, all of the remaining rights and duties of a parent as provided by Chapter 151; and
(5) if feasible, recommend that the parties use an alternative dispute resolution method before requesting enforcement or modification of the terms and conditions of the joint conservatorship through litigation, except in an emergency.
Sec. 153.135. EQUAL POSSESSION NOT REQUIRED. Joint managing conservatorship does not require the award of equal or nearly equal periods of physical possession of and access to the child to each of the joint conservators.
Sec. 153.138. CHILD SUPPORT ORDER AFFECTING JOINT CONSERVATORS. The appointment of joint managing conservators does not impair or limit the authority of the court to order a joint managing conservator to pay child support to another joint managing conservator.
SUBCHAPTER D. PARENT APPOINTED AS POSSESSORY CONSERVATOR

Sec. 153.191. PRESUMPTION THAT PARENT TO BE APPOINTED POSSESSORY CONSERVATOR. The court shall appoint as a possessory conservator a parent who is not appointed as a sole or joint managing conservator unless it finds that the appointment is not in the best interest of the child and that parental possession or access would endanger the physical or emotional welfare of the child.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.
Sec. 153.192. RIGHTS AND DUTIES OF PARENT APPOINTED POSSESSORY CONSERVATOR. (a) Unless limited by court order, a parent appointed as possessory conservator of a child has the rights and duties provided by Subchapter B and any other right or duty expressly granted to the possessory conservator in the order.
(b) In ordering the terms and conditions for possession of a child by a parent appointed possessory conservator, the court shall be guided by the guidelines in Subchapter E.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.
Sec. 153.193. MINIMAL RESTRICTION ON PARENT’S POSSESSION OR ACCESS. The terms of an order that denies possession of a child to a parent or imposes restrictions or limitations on a parent’s right to possession of or access to a child may not exceed those that are required to protect the best interest of the child.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.
SUBCHAPTER E. GUIDELINES FOR THE POSSESSION OF A CHILD BY A PARENT NAMED AS POSSESSORY CONSERVATOR

Sec. 153.251. POLICY AND GENERAL APPLICATION OF GUIDELINES. (a) The guidelines established in the standard possession order are intended to guide the courts in ordering the terms and conditions for possession of a child by a parent named as a possessory conservator or as the minimum possession for a joint managing conservator.
(b) It is the policy of this state to encourage frequent contact between a child and each parent for periods of possession that optimize the development of a close and continuing relationship between each parent and child.
(c) It is preferable for all children in a family to be together during periods of possession.
(d) The standard possession order is designed to apply to a child three years of age or older.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.
Sec. 153.252. REBUTTABLE PRESUMPTION. In a suit, there is a rebuttable presumption that the standard possession order in Subchapter F:
(1) provides reasonable minimum possession of a child for a parent named as a possessory conservator or joint managing conservator; and
(2) is in the best interest of the child.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.
Sec. 153.253. STANDARD POSSESSION ORDER INAPPROPRIATE OR UNWORKABLE. The court shall render an order that grants periods of possession of the child as similar as possible to those provided by the standard possession order if the work schedule or other special circumstances of the managing conservator, the possessory conservator, or the child, or the year-round school schedule of the child, make the standard order unworkable or inappropriate.
Sec. 153.254. CHILD LESS THAN THREE YEARS OF AGE. (a) The court shall render an order appropriate under the circumstances for possession of a child less than three years of age. In rendering the order, the court shall consider evidence of all relevant factors, including:
(1) the caregiving provided to the child before and during the current suit;
(2) the effect on the child that may result from separation from either party;
(3) the availability of the parties as caregivers and the willingness of the parties to personally care for the child;
(4) the physical, medical, behavioral, and developmental needs of the child;
(5) the physical, medical, emotional, economic, and social conditions of the parties;
(6) the impact and influence of individuals, other than the parties, who will be present during periods of possession;
(7) the presence of siblings during periods of possession;
(8) the child’s need to develop healthy attachments to both parents;
(9) the child’s need for continuity of routine;
(10) the location and proximity of the residences of the parties;
(11) the need for a temporary possession schedule that incrementally shifts to the schedule provided in the prospective order under Subsection (d) based on:
(A) the age of the child; or
(B) minimal or inconsistent contact with the child by a party;
(12) the ability of the parties to share in the responsibilities, rights, and duties of parenting; and
(13) any other evidence of the best interest of the child.
(b) Notwithstanding the Texas Rules of Civil Procedure, in rendering an order under Subsection (a), the court shall make findings in support of the order if:
(1) a party files a written request with the court not later than the 10th day after the date of the hearing; or
(2) a party makes an oral request in court during the hearing on the order.
(c) The court shall make and enter the findings required by Subsection (b) not later than the 15th day after the date the party makes the request.
(d) The court shall render a prospective order to take effect on the child’s third birthday, which presumptively will be the standard possession order.
Sec. 153.255. AGREEMENT. The court may render an order for periods of possession of a child that vary from the standard possession order based on the agreement of the parties.
Sec. 153.256. FACTORS FOR COURT TO CONSIDER. In ordering the terms of possession of a child under an order other than a standard possession order, the court shall be guided by the guidelines established by the standard possession order and may consider:
(1) the age, developmental status, circumstances, needs, and best interest of the child;
(2) the circumstances of the managing conservator and of the parent named as a possessory conservator; and
(3) any other relevant factor.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 35, eff. Sept. 1, 1995.

Sec. 153.258. REQUEST FOR FINDINGS WHEN ORDER VARIES FROM STANDARD ORDER. Without regard to Rules 296 through 299, Texas Rules of Civil Procedure, in all cases in which possession of a child by a parent is contested and the possession of the child varies from the standard possession order, on written request made or filed with the court not later than 10 days after the date of the hearing or on oral request made in open court during the hearing, the court shall state in the order the specific reasons for the variance from the standard order.
SUBCHAPTER F. STANDARD POSSESSION ORDER

Sec. 153.3101. REFERENCE TO “SCHOOL” IN STANDARD POSSESSION ORDER. In a standard possession order, “school” means the elementary or secondary school in which the child is enrolled or, if the child is not enrolled in an elementary or secondary school, the public school district in which the child primarily resides.

Added by Acts 2009, 81st Leg., R.S., Ch. 1113 (H.B. 1012), Sec. 4, eff. September 1, 2009.
Amended by:
Acts 2015, 84th Leg., R.S., Ch. 1167 (S.B. 821), Sec. 3, eff. September 1, 2015.
Sec. 153.311. MUTUAL AGREEMENT OR SPECIFIED TERMS FOR POSSESSION. The court shall specify in a standard possession order that the parties may have possession of the child at times mutually agreed to in advance by the parties and, in the absence of mutual agreement, shall have possession of the child under the specified terms set out in the standard possession order.
Sec. 153.312. PARENTS WHO RESIDE 100 MILES OR LESS APART. (a) If the possessory conservator resides 100 miles or less from the primary residence of the child, the possessory conservator shall have the right to possession of the child as follows:
(1) on weekends throughout the year beginning at 6 p.m. on the first, third, and fifth Friday of each month and ending at 6 p.m. on the following Sunday; and
(2) on Thursdays of each week during the regular school term beginning at 6 p.m. and ending at 8 p.m., unless the court finds that visitation under this subdivision is not in the best interest of the child.
(b) The following provisions govern possession of the child for vacations and certain specific holidays and supersede conflicting weekend or Thursday periods of possession. The possessory conservator and the managing conservator shall have rights of possession of the child as follows:
(1) the possessory conservator shall have possession in even-numbered years, beginning at 6 p.m. on the day the child is dismissed from school for the school’s spring vacation and ending at 6 p.m. on the day before school resumes after that vacation, and the managing conservator shall have possession for the same period in odd-numbered years;
(2) if a possessory conservator:
(A) gives the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 30 days beginning not earlier than the day after the child’s school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, to be exercised in not more than two separate periods of at least seven consecutive days each, with each period of possession beginning and ending at 6 p.m. on each applicable day; or
(B) does not give the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 30 consecutive days beginning at 6 p.m. on July 1 and ending at 6 p.m. on July 31;
(3) if the managing conservator gives the possessory conservator written notice by April 15 of each year, the managing conservator shall have possession of the child on any one weekend beginning Friday at 6 p.m. and ending at 6 p.m. on the following Sunday during one period of possession by the possessory conservator under Subdivision (2), provided that the managing conservator picks up the child from the possessory conservator and returns the child to that same place; and
(4) if the managing conservator gives the possessory conservator written notice by April 15 of each year or gives the possessory conservator 14 days’ written notice on or after April 16 of each year, the managing conservator may designate one weekend beginning not earlier than the day after the child’s school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, during which an otherwise scheduled weekend period of possession by the possessory conservator will not take place, provided that the weekend designated does not interfere with the possessory conservator’s period or periods of extended summer possession or with Father’s Day if the possessory conservator is the father of the child.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1997, 75th Leg., ch. 802, Sec. 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 236, Sec. 1, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 1036, Sec. 13, eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 916 (H.B. 260), Sec. 12, eff. June 18, 2005.
Acts 2007, 80th Leg., R.S., Ch. 1041 (H.B. 1864), Sec. 2, eff. June 15, 2007.
Acts 2009, 81st Leg., R.S., Ch. 1113 (H.B. 1012), Sec. 6, eff. September 1, 2009.
Sec. 153.313. PARENTS WHO RESIDE OVER 100 MILES APART. If the possessory conservator resides more than 100 miles from the residence of the child, the possessory conservator shall have the right to possession of the child as follows:
(1) either regular weekend possession beginning on the first, third, and fifth Friday as provided under the terms applicable to parents who reside 100 miles or less apart or not more than one weekend per month of the possessory conservator’s choice beginning at 6 p.m. on the day school recesses for the weekend and ending at 6 p.m. on the day before school resumes after the weekend, provided that the possessory conservator gives the managing conservator 14 days’ written or telephonic notice preceding a designated weekend, and provided that the possessory conservator elects an option for this alternative period of possession by written notice given to the managing conservator within 90 days after the parties begin to reside more than 100 miles apart, as applicable;
(2) each year beginning at 6 p.m. on the day the child is dismissed from school for the school’s spring vacation and ending at 6 p.m. on the day before school resumes after that vacation;
(3) if the possessory conservator:
(A) gives the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 42 days beginning not earlier than the day after the child’s school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, to be exercised in not more than two separate periods of at least seven consecutive days each, with each period of possession beginning and ending at 6 p.m. on each applicable day; or
(B) does not give the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 42 consecutive days beginning at 6 p.m. on June 15 and ending at 6 p.m. on July 27;
(4) if the managing conservator gives the possessory conservator written notice by April 15 of each year the managing conservator shall have possession of the child on one weekend beginning Friday at 6 p.m. and ending at 6 p.m. on the following Sunday during one period of possession by the possessory conservator under Subdivision (3), provided that if a period of possession by the possessory conservator exceeds 30 days, the managing conservator may have possession of the child under the terms of this subdivision on two nonconsecutive weekends during that time period, and further provided that the managing conservator picks up the child from the possessory conservator and returns the child to that same place; and
(5) if the managing conservator gives the possessory conservator written notice by April 15 of each year, the managing conservator may designate 21 days beginning not earlier than the day after the child’s school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, to be exercised in not more than two separate periods of at least seven consecutive days each, with each period of possession beginning and ending at 6 p.m. on each applicable day, during which the possessory conservator may not have possession of the child, provided that the period or periods so designated do not interfere with the possessory conservator’s period or periods of extended summer possession or with Father’s Day if the possessory conservator is the father of the child.
Sec. 153.314. HOLIDAY POSSESSION UNAFFECTED BY DISTANCE PARENTS RESIDE APART. The following provisions govern possession of the child for certain specific holidays and supersede conflicting weekend or Thursday periods of possession without regard to the distance the parents reside apart. The possessory conservator and the managing conservator shall have rights of possession of the child as follows:
(1) the possessory conservator shall have possession of the child in even-numbered years beginning at 6 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and the managing conservator shall have possession for the same period in odd-numbered years;
(2) the possessory conservator shall have possession of the child in odd-numbered years beginning at noon on December 28 and ending at 6 p.m. on the day before school resumes after that vacation, and the managing conservator shall have possession for the same period in even-numbered years;
(3) the possessory conservator shall have possession of the child in odd-numbered years, beginning at 6 p.m. on the day the child is dismissed from school before Thanksgiving and ending at 6 p.m. on the following Sunday, and the managing conservator shall have possession for the same period in even-numbered years;
(4) the parent not otherwise entitled under this standard possession order to present possession of a child on the child’s birthday shall have possession of the child beginning at 6 p.m. and ending at 8 p.m. on that day, provided that the parent picks up the child from the residence of the conservator entitled to possession and returns the child to that same place;
(5) if a conservator, the father shall have possession of the child beginning at 6 p.m. on the Friday preceding Father’s Day and ending on Father’s Day at 6 p.m., provided that, if he is not otherwise entitled under this standard possession order to present possession of the child, he picks up the child from the residence of the conservator entitled to possession and returns the child to that same place; and
(6) if a conservator, the mother shall have possession of the child beginning at 6 p.m. on the Friday preceding Mother’s Day and ending on Mother’s Day at 6 p.m., provided that, if she is not otherwise entitled under this standard possession order to present possession of the child, she picks up the child from the residence of the conservator entitled to possession and returns the child to that same place.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 2003, 78th Leg., ch. 1036, Sec. 14, eff. Sept. 1, 2003.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 1041 (H.B. 1864), Sec. 3, eff. June 15, 2007.
Acts 2009, 81st Leg., R.S., Ch. 1113 (H.B. 1012), Sec. 8, eff. September 1, 2009.
Sec. 153.315. WEEKEND POSSESSION EXTENDED BY HOLIDAY. (a) If a weekend period of possession of the possessory conservator coincides with a student holiday or teacher in-service day that falls on a Monday during the regular school term, as determined by the school in which the child is enrolled, or with a federal, state, or local holiday that falls on a Monday during the summer months in which school is not in session, the weekend possession shall end at 6 p.m. on Monday.
(b) If a weekend period of possession of the possessory conservator coincides with a student holiday or teacher in-service day that falls on a Friday during the regular school term, as determined by the school in which the child is enrolled, or with a federal, state, or local holiday that falls on a Friday during the summer months in which school is not in session, the weekend possession shall begin at 6 p.m. on Thursday.
Sec. 153.316. GENERAL TERMS AND CONDITIONS. The court shall order the following general terms and conditions of possession of a child to apply without regard to the distance between the residence of a parent and the child:
(1) the managing conservator shall surrender the child to the possessory conservator at the beginning of each period of the possessory conservator’s possession at the residence of the managing conservator;
(2) if the possessory conservator elects to begin a period of possession at the time the child’s school is regularly dismissed, the managing conservator shall surrender the child to the possessory conservator at the beginning of each period of possession at the school in which the child is enrolled;
(3) the possessory conservator shall be ordered to do one of the following:
(A) the possessory conservator shall surrender the child to the managing conservator at the end of each period of possession at the residence of the possessory conservator; or
(B) the possessory conservator shall return the child to the residence of the managing conservator at the end of each period of possession, except that the order shall provide that the possessory conservator shall surrender the child to the managing conservator at the end of each period of possession at the residence of the possessory conservator if:
(i) at the time the original order or a modification of an order establishing terms and conditions of possession or access the possessory conservator and the managing conservator lived in the same county, the possessory conservator’s county of residence remains the same after the rendition of the order, and the managing conservator’s county of residence changes, effective on the date of the change of residence by the managing conservator; or
(ii) the possessory conservator and managing conservator lived in the same residence at any time during a six-month period preceding the date on which a suit for dissolution of the marriage was filed and the possessory conservator’s county of residence remains the same and the managing conservator’s county of residence changes after they no longer live in the same residence, effective on the date the order is rendered;
(4) if the possessory conservator elects to end a period of possession at the time the child’s school resumes, the possessory conservator shall surrender the child to the managing conservator at the end of each period of possession at the school in which the child is enrolled;
(5) each conservator shall return with the child the personal effects that the child brought at the beginning of the period of possession;
(6) either parent may designate a competent adult to pick up and return the child, as applicable; a parent or a designated competent adult shall be present when the child is picked up or returned;
(7) a parent shall give notice to the person in possession of the child on each occasion that the parent will be unable to exercise that parent’s right of possession for a specified period;
(8) written notice, including notice provided by electronic mail or facsimile, shall be deemed to have been timely made if received or, if applicable, postmarked before or at the time that notice is due; and
(9) if a conservator’s time of possession of a child ends at the time school resumes and for any reason the child is not or will not be returned to school, the conservator in possession of the child shall immediately notify the school and the other conservator that the child will not be or has not been returned to school.
Sec. 153.317. ALTERNATIVE BEGINNING AND ENDING POSSESSION TIMES. (a) If elected by a conservator, the court shall alter the standard possession order under Sections 153.312, 153.314, and 153.315 to provide for one or more of the following alternative beginning and ending possession times for the described periods of possession, unless the court finds that the election is not in the best interest of the child:
(1) for weekend periods of possession under Section 153.312(a)(1) during the regular school term:
(A) beginning at the time the child’s school is regularly dismissed;
(B) ending at the time the child’s school resumes after the weekend; or
(C) beginning at the time described by Paragraph (A) and ending at the time described by Paragraph (B);
(2) for Thursday periods of possession under Section 153.312(a)(2):
(A) beginning at the time the child’s school is regularly dismissed;
(B) ending at the time the child’s school resumes on Friday; or
(C) beginning at the time described by Paragraph (A) and ending at the time described by Paragraph (B);
(3) for spring vacation periods of possession under Section 153.312(b)(1), beginning at the time the child’s school is dismissed for those vacations;
(4) for Christmas school vacation periods of possession under Section 153.314(1), beginning at the time the child’s school is dismissed for the vacation;
(5) for Thanksgiving holiday periods of possession under Section 153.314(3), beginning at the time the child’s school is dismissed for the holiday;
(6) for Father’s Day periods of possession under Section 153.314(5), ending at 8 a.m. on the Monday after Father’s Day weekend;
(7) for Mother’s Day periods of possession under Section 153.314(6):
(A) beginning at the time the child’s school is regularly dismissed on the Friday preceding Mother’s Day;
(B) ending at the time the child’s school resumes after Mother’s Day; or
(C) beginning at the time described by Paragraph (A) and ending at the time described by Paragraph (B); or
(8) for weekend periods of possession that are extended under Section 153.315(b) by a student holiday or teacher in-service day that falls on a Friday, beginning at the time the child’s school is regularly dismissed on Thursday.
(b) A conservator must make an election under Subsection (a) before or at the time of the rendition of a possession order. The election may be made:
(1) in a written document filed with the court; or
(2) through an oral statement made in open court on the record.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1997, 75th Leg., ch. 9, Sec. 1, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 1036, Sec. 15, eff. Sept. 1, 2003.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 1113 (H.B. 1012), Sec. 10, eff. September 1, 2009.
Acts 2013, 83rd Leg., R.S., Ch. 277 (H.B. 845), Sec. 2, eff. September 1, 2013.
SUBCHAPTER G. APPOINTMENT OF NONPARENT AS CONSERVATOR

Sec. 153.371. RIGHTS AND DUTIES OF NONPARENT APPOINTED AS SOLE MANAGING CONSERVATOR. Unless limited by court order or other provisions of this chapter, a nonparent, a licensed child-placing agency, or the Department of Family and Protective Services appointed as a managing conservator of the child has the following rights and duties:
(1) the right to have physical possession and to direct the moral and religious training of the child;
(2) the duty of care, control, protection, and reasonable discipline of the child;
(3) the duty to provide the child with clothing, food, shelter, education, and medical, psychological, and dental care;
(4) the right to consent for the child to medical, psychiatric, psychological, dental, and surgical treatment and to have access to the child’s medical records;
(5) the right to receive and give receipt for payments for the support of the child and to hold or disburse funds for the benefit of the child;
(6) the right to the services and earnings of the child;
(7) the right to consent to marriage and to enlistment in the armed forces of the United States;
(8) the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
(9) except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government;
(10) the right to designate the primary residence of the child and to make decisions regarding the child’s education; and
(11) if the parent-child relationship has been terminated with respect to the parents, or only living parent, or if there is no living parent, the right to consent to the adoption of the child and to make any other decision concerning the child that a parent could make.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 34, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 949, Sec. 1, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 1036, Sec. 16, eff. Sept. 1, 2003.
Amended by:
Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 1.044, eff. April 2, 2015.
Sec. 153.372. NONPARENT APPOINTED AS JOINT MANAGING CONSERVATOR. (a) A nonparent, the Department of Family and Protective Services, or a licensed child-placing agency appointed as a joint managing conservator may serve in that capacity with either another nonparent or with a parent of the child.
(b) The procedural and substantive standards regarding an agreed or court-ordered joint managing conservatorship provided by Subchapter C apply to a nonparent joint managing conservator.
Sec. 153.3721. ACCESS TO CERTAIN RECORDS BY NONPARENT JOINT MANAGING CONSERVATOR. Unless limited by court order or other provisions of this chapter, a nonparent joint managing conservator has the right of access to the medical records of the child, without regard to whether the right is specified in the order.

Added by Acts 1999, 76th Leg., ch. 949, Sec. 2, eff. Sept. 1, 1999.
Sec. 153.373. VOLUNTARY SURRENDER OF POSSESSION REBUTS PARENTAL PRESUMPTION. The presumption that a parent should be appointed or retained as managing conservator of the child is rebutted if the court finds that:
(1) the parent has voluntarily relinquished actual care, control, and possession of the child to a nonparent, a licensed child-placing agency, or the Department of Family and Protective Services for a period of one year or more, a portion of which was within 90 days preceding the date of intervention in or filing of the suit; and
(2) the appointment of the nonparent, agency, or Department of Family and Protective Services as managing conservator is in the best interest of the child.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.
Amended by:
Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 1.046, eff. April 2, 2015.
Sec. 153.374. DESIGNATION OF MANAGING CONSERVATOR IN AFFIDAVIT OF RELINQUISHMENT. (a) A parent may designate a competent person, the Department of Family and Protective Services, or a licensed child-placing agency to serve as managing conservator of the child in an unrevoked or irrevocable affidavit of relinquishment of parental rights executed as provided by Chapter 161.
(b) The person, Department of Family and Protective Services, or agency designated to serve as managing conservator shall be appointed managing conservator unless the court finds that the appointment would not be in the best interest of the child.
SUBCHAPTER H. RIGHTS OF GRANDPARENT, AUNT, OR UNCLE

Sec. 153.431. APPOINTMENT OF GRANDPARENT, AUNT, OR UNCLE AS MANAGING CONSERVATOR. If both of the parents of a child are deceased, the court may consider appointment of a parent, sister, or brother of a deceased parent as a managing conservator of the child, but that consideration does not alter or diminish the discretionary power of the court.

SUBCHAPTER I. PREVENTION OF INTERNATIONAL PARENTAL CHILD ABDUCTION

Sec. 153.501. NECESSITY OF MEASURES TO PREVENT INTERNATIONAL PARENTAL CHILD ABDUCTION. (a) In a suit, if credible evidence is presented to the court indicating a potential risk of the international abduction of a child by a parent of the child, the court, on its own motion or at the request of a party to the suit, shall determine under this section whether it is necessary for the court to take one or more of the measures described by Section 153.503 to protect the child from the risk of abduction by the parent.
(b) In determining whether to take any of the measures described by Section 153.503, the court shall consider:
(1) the public policies of this state described by Section 153.001(a) and the consideration of the best interest of the child under Section 153.002;
(2) the risk of international abduction of the child by a parent of the child based on the court’s evaluation of the risk factors described by Section 153.502;
(3) any obstacles to locating, recovering, and returning the child if the child is abducted to a foreign country; and
(4) the potential physical or psychological harm to the child if the child is abducted to a foreign country.

Added by Acts 2003, 78th Leg., ch. 612, Sec. 1, eff. June 20, 2003.
Sec. 153.502. ABDUCTION RISK FACTORS. (a) To determine whether there is a risk of the international abduction of a child by a parent of the child, the court shall consider evidence that the parent:
(1) has taken, enticed away, kept, withheld, or concealed a child in violation of another person’s right of possession of or access to the child, unless the parent presents evidence that the parent believed in good faith that the parent’s conduct was necessary to avoid imminent harm to the child or the parent;
(2) has previously threatened to take, entice away, keep, withhold, or conceal a child in violation of another person’s right of possession of or access to the child;
(3) lacks financial reason to stay in the United States, including evidence that the parent is financially independent, is able to work outside of the United States, or is unemployed;
(4) has recently engaged in planning activities that could facilitate the removal of the child from the United States by the parent, including:
(A) quitting a job;
(B) selling a primary residence;
(C) terminating a lease;
(D) closing bank accounts;
(E) liquidating other assets;
(F) hiding or destroying documents;
(G) applying for a passport or visa or obtaining other travel documents for the parent or the child; or
(H) applying to obtain the child’s birth certificate or school or medical records;
(5) has a history of domestic violence that the court is required to consider under Section 153.004; or
(6) has a criminal history or a history of violating court orders.
(a-1) In considering evidence of planning activities under Subsection (a)(4), the court also shall consider any evidence that the parent was engaging in those activities as a part of a safety plan to flee from family violence.
(b) If the court finds that there is credible evidence of a risk of abduction of the child by a parent of the child based on the court’s consideration of the factors in Subsection (a), the court shall also consider evidence regarding the following factors to evaluate the risk of international abduction of the child by a parent:
(1) whether the parent has strong familial, emotional, or cultural ties to another country, particularly a country that is not a signatory to or compliant with the Hague Convention on the Civil Aspects of International Child Abduction; and
(2) whether the parent lacks strong ties to the United States, regardless of whether the parent is a citizen or permanent resident of the United States.
(c) If the court finds that there is credible evidence of a risk of abduction of the child by a parent of the child based on the court’s consideration of the factors in Subsection (a), the court may also consider evidence regarding the following factors to evaluate the risk of international abduction of the child by a parent:
(1) whether the parent is undergoing a change in status with the United States Immigration and Naturalization Service that would adversely affect that parent’s ability to legally remain in the United States;
(2) whether the parent’s application for United States citizenship has been denied by the United States Immigration and Naturalization Service;
(3) whether the parent has forged or presented misleading or false evidence to obtain a visa, a passport, a social security card, or any other identification card or has made any misrepresentation to the United States government; or
(4) whether the foreign country to which the parent has ties:
(A) presents obstacles to the recovery and return of a child who is abducted to the country from the United States;
(B) has any legal mechanisms for immediately and effectively enforcing an order regarding the possession of or access to the child issued by this state;
(C) has local laws or practices that would:
(i) enable the parent to prevent the child’s other parent from contacting the child without due cause;
(ii) restrict the child’s other parent from freely traveling to or exiting from the country because of that parent’s gender, nationality, or religion; or
(iii) restrict the child’s ability to legally leave the country after the child reaches the age of majority because of the child’s gender, nationality, or religion;
(D) is included by the United States Department of State on a list of state sponsors of terrorism;
(E) is a country for which the United States Department of State has issued a travel warning to United States citizens regarding travel to the country;
(F) has an embassy of the United States in the country;
(G) is engaged in any active military action or war, including a civil war;
(H) is a party to and compliant with the Hague Convention on the Civil Aspects of International Child Abduction according to the most recent report on compliance issued by the United States Department of State;
(I) provides for the extradition of a parental abductor and the return of the child to the United States; or
(J) poses a risk that the child’s physical health or safety would be endangered in the country because of specific circumstances relating to the child or because of human rights violations committed against children, including arranged marriages, lack of freedom of religion, child labor, lack of child abuse laws, female genital mutilation, and any form of slavery.

Added by Acts 2003, 78th Leg., ch. 612, Sec. 1, eff. June 20, 2003.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 1113 (H.B. 1012), Sec. 13, eff. September 1, 2009.
Sec. 153.503. ABDUCTION PREVENTION MEASURES. If the court finds that it is necessary under Section 153.501 to take measures to protect a child from international abduction by a parent of the child, the court may take any of the following actions:
(1) appoint a person other than the parent of the child who presents a risk of abducting the child as the sole managing conservator of the child;
(2) require supervised visitation of the parent by a visitation center or independent organization until the court finds under Section 153.501 that supervised visitation is no longer necessary;
(3) enjoin the parent or any person acting on the parent’s behalf from:
(A) disrupting or removing the child from the school or child-care facility in which the child is enrolled; or
(B) approaching the child at any location other than a site designated for supervised visitation;
(4) order passport and travel controls, including controls that:
(A) prohibit the parent and any person acting on the parent’s behalf from removing the child from this state or the United States;
(B) require the parent to surrender any passport issued in the child’s name, including any passport issued in the name of both the parent and the child; and
(C) prohibit the parent from applying on behalf of the child for a new or replacement passport or international travel visa;
(5) require the parent to provide:
(A) to the United States Department of State’s Office of Children’s Issues and the relevant foreign consulate or embassy:
(i) written notice of the court-ordered passport and travel restrictions for the child; and
(ii) a properly authenticated copy of the court order detailing the restrictions and documentation of the parent’s agreement to the restrictions; and
(B) to the court proof of receipt of the written notice required by Paragraph (A)(i) by the United States Department of State’s Office of Children’s Issues and the relevant foreign consulate or embassy;
(6) order the parent to execute a bond or deposit security in an amount sufficient to offset the cost of recovering the child if the child is abducted by the parent to a foreign country;
(7) authorize the appropriate law enforcement agencies to take measures to prevent the abduction of the child by the parent; or
(8) include in the court’s order provisions:
(A) identifying the United States as the country of habitual residence of the child;
(B) defining the basis for the court’s exercise of jurisdiction; and
(C) stating that a party’s violation of the order may subject the party to a civil penalty or criminal penalty or to both civil and criminal penalties.

Added by Acts 2003, 78th Leg., ch. 612, Sec. 1, eff. June 20, 2003.

NT; AGREEMENTS AND RECOMMENDATIONS. (a) If the parties have been ordered by the court to attempt to settle parenting issues with the assistance of a parenting coordinator or parenting facilitator and to attempt to reach a proposed joint resolution or statement of intent regarding the dispute, the parenting coordinator or parenting facilitator, as applicable, shall submit a written report describing the parties’ joint proposal or statement to the parties, any attorneys for the parties, and any attorney for the child who is the subject of the suit.
(b) The proposed joint resolution or statement of intent is not an agreement unless the resolution or statement is:
(1) prepared by the parties’ attorneys, if any, in a form that meets the applicable requirements of:
(A) Rule 11, Texas Rules of Civil Procedure;
(B) a mediated settlement agreement described by Section 153.0071;
(C) a collaborative law agreement described by Section 153.0072;
(D) a settlement agreement described by Section 154.071, Civil Practice and Remedies Code; or
(E) a proposed court order; and
(2) incorporated into an order signed by the court.
(c) A parenting coordinator or parenting facilitator may not draft a document listed in Subsection (b)(1).
(d) The actions of a parenting coordinator or parenting facilitator under this section do not constitute the practice of law.
(e) If the parties have been ordered by the court to attempt to settle parenting issues with the assistance of a parenting facilitator and are unable to settle those issues, the parenting facilitator may make recommendations, other than recommendations regarding the conservatorship of or possession of or access to the child, to the parties and attorneys to implement or clarify provisions of an existing court order that are consistent with the substantive intent of the court order and in the best interest of the child who is the subject of the suit. A recommendation authorized by this subsection does not affect the terms of an existing court order.

Added by Acts 2009, 81st Leg., R.S., Ch. 1113 (H.B. 1012), Sec. 22, eff. September 1, 2009.
Sec. 153.6083. COMMUNICATIONS AND RECORDKEEPING OF PARENTING FACILITATOR. (a) Notwithstanding any rule, standard of care, or privilege applicable to the professional license held by a parenting facilitator, a communication made by a participant in parenting facilitation is subject to disclosure and may be offered in any judicial or administrative proceeding, if otherwise admissible under the rules of evidence. The parenting facilitator may be required to testify in any proceeding relating to or arising from the duties of the parenting facilitator, including as to the basis for any recommendation made to the parties that arises from the duties of the parenting facilitator.
(b) A parenting facilitator shall keep a detailed record regarding meetings and contacts with the parties, attorneys, or other persons involved in the suit.
(c) A person who participates in parenting facilitation is not a patient as defined by Section 611.001, Health and Safety Code, and no record created as part of the parenting facilitation that arises from the parenting facilitator’s duties is confidential.
(d) On request, records of parenting facilitation shall be made available by the parenting facilitator to an attorney for a party, an attorney for a child who is the subject of the suit, and a party who does not have an attorney.
(e) A parenting facilitator shall keep parenting facilitation records from the suit until the seventh anniversary of the date the facilitator’s services are terminated, unless a different retention period is established by a rule adopted by the licensing authority that issues the professional license held by the parenting facilitator.

Added by Acts 2009, 81st Leg., R.S., Ch. 1113 (H.B. 1012), Sec. 22, eff. September 1, 2009.
Sec. 153.609. COMPENSATION OF PARENTING COORDINATOR. (a) A court may not appoint a parenting coordinator, other than a domestic relations office or a comparable county agency appointed under Subsection (c) or a volunteer appointed under Subsection (d), unless, after notice and hearing, the court finds that the parties have the means to pay the fees of the parenting coordinator.
(b) Any fees of a parenting coordinator appointed under Subsection (a) shall be allocated between the parties as determined by the court.
(c) Public funds may not be used to pay the fees of a parenting coordinator. Notwithstanding this prohibition, a court may appoint the domestic relations office or a comparable county agency to act as a parenting coordinator if personnel are available to serve that function.
(d) If due to hardship the parties are unable to pay the fees of a parenting coordinator, and a domestic relations office or a comparable county agency is not available under Subsection (c), the court, if feasible, may appoint a person who meets the minimum qualifications prescribed by Section 153.610, including an employee of the court, to act as a parenting coordinator on a volunteer basis and without compensation.

Added by Acts 2005, 79th Leg., Ch. 482 (H.B. 252), Sec. 2, eff. September 1, 2005.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 1181 (H.B. 555), Sec. 10, eff. September 1, 2007.
Acts 2011, 82nd Leg., R.S., Ch. 682 (H.B. 149), Sec. 1, eff. June 17, 2011.
Sec. 153.6091. COMPENSATION OF PARENTING FACILITATOR. Section 153.609 applies to a parenting facilitator in the same manner as provided for a parenting coordinator, except that a person appointed in accordance with Section 153.609(d) to act as a parenting facilitator must meet the minimum qualifications prescribed by Section 153.6101.

Added by Acts 2009, 81st Leg., R.S., Ch. 1113 (H.B. 1012), Sec. 22, eff. September 1, 2009.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 682 (H.B. 149), Sec. 2, eff. June 17, 2011.
Sec. 153.610. QUALIFICATIONS OF PARENTING COORDINATOR. (a) The court shall determine the required qualifications of a parenting coordinator, provided that a parenting coordinator must have experience working in a field relating to families, have practical experience with high-conflict cases or litigation between parents, and:
(1) hold at least:
(A) a bachelor’s degree in counseling, education, family studies, psychology, or social work; or
(B) a graduate degree in a mental health profession, with an emphasis in family and children’s issues; or
(2) be licensed in good standing as an attorney in this state.
(b) In addition to the qualifications prescribed by Subsection (a), a parenting coordinator must complete at least:
(1) eight hours of family violence dynamics training provided by a family violence service provider;
(2) 40 classroom hours of training in dispute resolution techniques in a course conducted by an alternative dispute resolution system or other dispute resolution organization approved by the court; and
(3) 24 classroom hours of training in the fields of family dynamics, child development, family law and the law governing parenting coordination, and parenting coordination styles and procedures.
(c) In appropriate circumstances, a court may, with the agreement of the parties, appoint a person as parenting coordinator who does not satisfy the requirements of Subsection (a) or Subsection (b)(2) or (3) if the court finds that the person has sufficient legal or other professional training or experience in dispute resolution processes to serve in that capacity.
(d) The actions of a parenting coordinator who is not an attorney do not constitute the practice of law.

Added by Acts 2005, 79th Leg., Ch. 482 (H.B. 252), Sec. 2, eff. September 1, 2005.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 1113 (H.B. 1012), Sec. 23, eff. September 1, 2009.
Sec. 153.6101. QUALIFICATIONS OF PARENTING FACILITATOR. (a) The court shall determine whether the qualifications of a proposed parenting facilitator satisfy the requirements of this section. On request by a party, an attorney for a party, or any attorney for a child who is the subject of the suit, a person under consideration for appointment as a parenting facilitator in the suit shall provide proof that the person satisfies the minimum qualifications required by this section.
(b) A parenting facilitator must:
(1) hold a license to practice in this state as a social worker, licensed professional counselor, licensed marriage and family therapist, psychologist, or attorney; and
(2) have completed at least:
(A) eight hours of family violence dynamics training provided by a family violence service provider;
(B) 40 classroom hours of training in dispute resolution techniques in a course conducted by an alternative dispute resolution system or other dispute resolution organization approved by the court;
(C) 24 classroom hours of training in the fields of family dynamics, child development, and family law; and
(D) 16 hours of training in the laws governing parenting coordination and parenting facilitation and the multiple styles and procedures used in different models of service.
(c) The actions of a parenting facilitator who is not an attorney do not constitute the practice of law.

Added by Acts 2009, 81st Leg., R.S., Ch. 1113 (H.B. 1012), Sec. 24, eff. September 1, 2009.
Sec. 153.6102. PARENTING FACILITATOR; CONFLICTS OF INTEREST AND BIAS. (a) A person who has a conflict of interest with, or has previous knowledge of, a party or a child who is the subject of a suit must, before being appointed as parenting facilitator in a suit:
(1) disclose the conflict or previous knowledge to the court, each attorney for a party, any attorney for a child, and any party who does not have an attorney; and
(2) decline appointment in the suit unless, after the disclosure, the parties and the child’s attorney, if any, agree in writing to the person’s appointment as parenting facilitator.
(b) A parenting facilitator who, after being appointed in a suit, discovers that the parenting facilitator has a conflict of interest with, or has previous knowledge of, a party or a child who is the subject of the suit shall:
(1) immediately disclose the conflict or previous knowledge to the court, each attorney for a party, any attorney for a child, and any party who does not have an attorney; and
(2) withdraw from the suit unless, after the disclosure, the parties and the child’s attorney, if any, agree in writing to the person’s continuation as parenting facilitator.
(c) A parenting facilitator, before accepting appointment in a suit, must disclose to the court, each attorney for a party, any attorney for a child who is the subject of the suit, and any party who does not have an attorney:
(1) a pecuniary relationship with an attorney, party, or child in the suit;
(2) a relationship of confidence or trust with an attorney, party, or child in the suit; and
(3) other information regarding any relationship with an attorney, party, or child in the suit that might reasonably affect the ability of the person to act impartially during the person’s service as parenting facilitator.
(d) A person who makes a disclosure required by Subsection (c) shall decline appointment as parenting facilitator unless, after the disclosure, the parties and the child’s attorney, if any, agree in writing to the person’s service as parenting facilitator in the suit.
(e) A parenting facilitator may not serve in any other professional capacity at any other time with any person who is a party to, or the subject of, the suit in which the person serves as parenting facilitator, or with any member of the family of a party or subject. A person who, before appointment as a parenting facilitator in a suit, served in any other professional capacity with a person who is a party to, or subject of, the suit, or with any member of the family of a party or subject, may not serve as parenting facilitator in a suit involving any family member who is a party to or subject of the suit. This subsection does not apply to a person whose only other service in a professional capacity with a family or any member of a family that is a party to or the subject of a suit to which this section applies is as a teacher of coparenting skills in a class conducted in a group setting. For purposes of this subsection, “family” has the meaning assigned by Section 71.003.
(f) A parenting facilitator shall promptly and simultaneously disclose to each party’s attorney, any attorney for a child who is a subject of the suit, and any party who does not have an attorney the existence and substance of any communication between the parenting facilitator and another person, including a party, a party’s attorney, a child who is the subject of the suit, and any attorney for a child who is the subject of the suit, if the communication occurred outside of a parenting facilitator session and involved the substance of parenting facilitation.

Added by Acts 2009, 81st Leg., R.S., Ch. 1113 (H.B. 1012), Sec. 24, eff. September 1, 2009.

Text of section effective on September 01, 2018

Sec. 153.611. EXCEPTION FOR CERTAIN TITLE IV-D PROCEEDINGS. Notwithstanding any other provision of this subchapter, this subchapter does not apply to a proceeding in a Title IV-D case relating to the determination of parentage or establishment, modification, or enforcement of a child support, medical support, or dental support obligation.

Added by Acts 2005, 79th Leg., Ch. 482 (H.B. 252), Sec. 2, eff. September 1, 2005.
Amended by:
Acts 2015, 84th Leg., R.S., Ch. 1150 (S.B. 550), Sec. 7, eff. September 1, 2018.

Text of section effective until September 01, 2018

Sec. 153.611. EXCEPTION FOR CERTAIN TITLE IV-D PROCEEDINGS. Notwithstanding any other provision of this subchapter, this subchapter does not apply to a proceeding in a Title IV-D case relating to the determination of parentage or establishment, modification, or enforcement of a child support or medical support obligation.

Added by Acts 2005, 79th Leg., Ch. 482 (H.B. 252), Sec. 2, eff. September 1, 2005.
SUBCHAPTER L. MILITARY DUTY

Sec. 153.701. DEFINITIONS. In this subchapter:
(1) “Designated person” means the person ordered by the court to temporarily exercise a conservator’s rights, duties, and periods of possession and access with regard to a child during the conservator’s military deployment, military mobilization, or temporary military duty.
(2) “Military deployment” means the temporary transfer of a service member of the armed forces of this state or the United States serving in an active-duty status to another location in support of combat or some other military operation.
(3) “Military mobilization” means the call-up of a National Guard or Reserve service member of the armed forces of this state or the United States to extended active duty status. The term does not include National Guard or Reserve annual training.
(4) “Temporary military duty” means the transfer of a service member of the armed forces of this state or the United States from one military base to a different location, usually another base, for a limited time for training or to assist in the performance of a noncombat mission.

Added by Acts 2009, 81st Leg., R.S., Ch. 727 (S.B. 279), Sec. 1, eff. September 1, 2009.
Added by Acts 2009, 81st Leg., R.S., Ch. 1113 (H.B. 1012), Sec. 25, eff. September 1, 2009.
Sec. 153.702. TEMPORARY ORDERS. (a) If a conservator is ordered to military deployment, military mobilization, or temporary military duty that involves moving a substantial distance from the conservator’s residence so as to materially affect the conservator’s ability to exercise the conservator’s rights and duties in relation to a child, either conservator may file for an order under this subchapter without the necessity of showing a material and substantial change of circumstances other than the military deployment, military mobilization, or temporary military duty.
(b) The court may render a temporary order in a proceeding under this subchapter regarding:
(1) possession of or access to the child; or
(2) child support.
(c) A temporary order rendered by the court under this subchapter may grant rights to and impose duties on a designated person regarding the child, except that if the designated person is a nonparent, the court may not require the designated person to pay child support.
(d) After a conservator’s military deployment, military mobilization, or temporary military duty is concluded, and the conservator returns to the conservator’s usual residence, the temporary orders under this section terminate and the rights of all affected parties are governed by the terms of any court order applicable when the conservator is not ordered to military deployment, military mobilization, or temporary military duty.

Added by Acts 2009, 81st Leg., R.S., Ch. 727 (S.B. 279), Sec. 1, eff. September 1, 2009.
Added by Acts 2009, 81st Leg., R.S., Ch. 1113 (H.B. 1012), Sec. 25, eff. September 1, 2009.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 112 (H.B. 1404), Sec. 1, eff. September 1, 2011.
Sec. 153.703. APPOINTING DESIGNATED PERSON FOR CONSERVATOR WITH EXCLUSIVE RIGHT TO DESIGNATE PRIMARY RESIDENCE OF CHILD. (a) If the conservator with the exclusive right to designate the primary residence of the child is ordered to military deployment, military mobilization, or temporary military duty, the court may render a temporary order to appoint a designated person to exercise the exclusive right to designate the primary residence of the child during the military deployment, military mobilization, or temporary military duty in the following order of preference:
(1) the conservator who does not have the exclusive right to designate the primary residence of the child;
(2) if appointing the conservator described by Subdivision (1) is not in the child’s best interest, a designated person chosen by the conservator with the exclusive right to designate the primary residence of the child; or
(3) if appointing the conservator described by Subdivision (1) or the person chosen under Subdivision (2) is not in the child’s best interest, another person chosen by the court.
(b) A nonparent appointed as a designated person in a temporary order rendered under this section has the rights and duties of a nonparent appointed as sole managing conservator under Section 153.371.
(c) The court may limit or expand the rights of a nonparent named as a designated person in a temporary order rendered under this section as appropriate to the best interest of the child.
Sec. 153.704. APPOINTING DESIGNATED PERSON TO EXERCISE VISITATION FOR CONSERVATOR WITH EXCLUSIVE RIGHT TO DESIGNATE PRIMARY RESIDENCE OF CHILD IN CERTAIN CIRCUMSTANCES. (a) If the court appoints the conservator without the exclusive right to designate the primary residence of the child under Section 153.703(a)(1), the court may award visitation with the child to a designated person chosen by the conservator with the exclusive right to designate the primary residence of the child.
(b) The periods of visitation shall be the same as the visitation to which the conservator without the exclusive right to designate the primary residence of the child was entitled under the court order in effect immediately before the date the temporary order is rendered.
(c) The temporary order for visitation must provide that:
(1) the designated person under this section has the right to possession of the child for the periods and in the manner in which the conservator without the exclusive right to designate the primary residence of the child is entitled under the court order in effect immediately before the date the temporary order is rendered;
(2) the child’s other conservator and the designated person under this section are subject to the requirements of Section 153.316, with the designated person considered for purposes of that section to be the possessory conservator;
(3) the designated person under this section has the rights and duties of a nonparent possessory conservator under Section 153.376(a) during the period that the person has possession of the child; and
(4) the designated person under this section is subject to any provision in a court order restricting or prohibiting access to the child by any specified individual.
(d) The court may limit or expand the rights of a nonparent designated person named in a temporary order rendered under this section as appropriate to the best interest of the child.
Sec. 153.705. APPOINTING DESIGNATED PERSON TO EXERCISE VISITATION FOR CONSERVATOR WITHOUT EXCLUSIVE RIGHT TO DESIGNATE PRIMARY RESIDENCE OF CHILD. (a) If the conservator without the exclusive right to designate the primary residence of the child is ordered to military deployment, military mobilization, or temporary military duty, the court may award visitation with the child to a designated person chosen by the conservator, if the visitation is in the best interest of the child.
(b) The temporary order for visitation must provide that:
(1) the designated person under this section has the right to possession of the child for the periods and in the manner in which the conservator described by Subsection (a) would be entitled if not ordered to military deployment, military mobilization, or temporary military duty;
(2) the child’s other conservator and the designated person under this section are subject to the requirements of Section 153.316, with the designated person considered for purposes of that section to be the possessory conservator;
(3) the designated person under this section has the rights and duties of a nonparent possessory conservator under Section 153.376(a) during the period that the designated person has possession of the child; and
(4) the designated person under this section is subject to any provision in a court order restricting or prohibiting access to the child by any specified individual.
(c) The court may limit or expand the rights of a nonparent designated person named in a temporary order rendered under this section as appropriate to the best interest of the child.
Sec. 153.707. EXPEDITED HEARING. (a) On a motion by the conservator who has been ordered to military deployment, military mobilization, or temporary military duty, the court shall, for good cause shown, hold an expedited hearing if the court finds that the conservator’s military duties have a material effect on the conservator’s ability to appear in person at a regularly scheduled hearing.
(b) A hearing under this section shall, if possible, take precedence over other suits affecting the parent-child relationship not involving a conservator who has been ordered to military deployment, military mobilization, or temporary military duty.
(c) On a motion by any party, the court shall, after reasonable advance notice and for good cause shown, allow a party to present testimony and evidence by electronic means, including by teleconference or through the Internet.
Sec. 153.708. ENFORCEMENT. Temporary orders rendered under this subchapter may be enforced by or against the designated person to the same extent that an order would be enforceable against the conservator who has been ordered to military deployment, military mobilization, or temporary military duty.
Sec. 153.709. ADDITIONAL PERIODS OF POSSESSION OR ACCESS. (a) Not later than the 90th day after the date a conservator without the exclusive right to designate the primary residence of the child who is a member of the armed services concludes the conservator’s military deployment, military mobilization, or temporary military duty, the conservator may petition the court to:
(1) compute the periods of possession of or access to the child to which the conservator would have otherwise been entitled during the conservator’s deployment; and
(2) award the conservator additional periods of possession of or access to the child to compensate for the periods described by Subdivision (1).
(b) If the conservator described by Subsection (a) petitions the court under Subsection (a), the court:
(1) shall compute the periods of possession or access to the child described by Subsection (a)(1); and
(2) may award to the conservator additional periods of possession of or access to the child for a length of time and under terms the court considers reasonable, if the court determines that:
(A) the conservator was on military deployment, military mobilization, or temporary military duty in a location where access to the child was not reasonably possible; and
(B) the award of additional periods of possession of or access to the child is in the best interest of the child.
(c) In making the determination under Subsection (b)(2), the court:
(1) shall consider:
(A) the periods of possession of or access to the child to which the conservator would otherwise have been entitled during the conservator’s military deployment, military mobilization, or temporary military duty, as computed under Subsection (b)(1);
(B) whether the court named a designated person under Section 153.705 to exercise limited possession of the child during the conservator’s deployment; and
(C) any other factor the court considers appropriate; and
(2) is not required to award additional periods of possession of or access to the child that equals the possession or access to which the conservator would have been entitled during the conservator’s military deployment, military mobilization, or temporary military duty, as computed under Subsection (b)(1).
(d) After the conservator described by Subsection (a) has exercised all additional periods of possession or access awarded under this section, the rights of all affected parties are governed by the terms of the court order applicable when the conservator is not ordered to military deployment, military mobilization, or temporary military duty.

It’s pretty simple despite how ugly it can get. Be reasonable. Don’t leave it in the Court’s hands.

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Sentence First, Verdict Last like Wonderland

 

If you would like to know what probate court is like, I think rather than “kangaroo court,” a term I’ve always had difficulty with, it’s just like Alice in Wonderland. It becomes relevant very soon (in my first case) that a tacit agreement is being enacted in which all of the lawyers have a script you weren’t’ given. With a wink here and a nod there, up becomes down and down becomes up and truth becomes a lie and a lie becomes the truth. Why? Because they agreed it was that way. What’s scary is the Bible speaks of this in very very scary terminology, when he refers to the “reprobate” mind. Kind of fitting to be reprobate in probate court. 

Kind of reminds me of my sanctions hearing which was a circus where they didn’t enter any evidence and then ordered me to pay $15,000 for protected first amendment speech. But the dictionary says this about being reprobate:

rep·ro·bate
ˈreprəˌbāt/Submit
noun
1.
an unprincipled person (often used humorously or affectionately).
synonyms: rogue, rascal, scoundrel, miscreant, good-for-nothing, villain, wretch, rake, degenerate, libertine, debauchee; More
2.
CHRISTIAN THEOLOGYarchaic
(especially in Calvinism) a sinner who is not of the elect and is predestined to damnation.
adjective
adjective: reprobate
1.
unprincipled (often used as a humorous or affectionate reproach).
“a long-missed old reprobate drinking comrade”
synonyms: unprincipled, bad, roguish, wicked, rakish, shameless, immoral, degenerate, dissipated, debauched, depraved; archaicknavish
“reprobate behavior”

Reprobate
that which is rejected on account of its own worthlessness ( Jeremiah 6:30 ; Hebrews 6:8 ; Gr. adokimos, “rejected”). This word is also used with reference to persons cast away or rejected because they have failed to make use of opportunities offered them ( 1 Corinthians 9:27 ; 2 co 13:5-7 ).This word occurs in the English Bible in the following passages: Jeremiah 6:30 (the Revised Version (British and American) “refuse”); Romans 1:28; 2 Corinthians 13:5,6,7; 2 Timothy 3:8; Titus 1:16. In all these cases the Greek has adokimos. The same Greek word, however, is found with other renderings in Isaiah 1:22 (“dross”); Proverbs 25:4 (“dross”); 1 Corinthians 9:27 (“castaway,” the Revised Version (British and American) “rejected”). The primary meaning of adokimos is “not-received,” “not-acknowledged.” This is applied to precious metals or money, in the sense of “not-current,” to which, however, the connotation “not-genuine” easily attaches itself. It is also applied to persons who do not or ought not to receive honor or recognition.

This purely negative conception frequently passes over into the positive one of that which is or ought to be rejected, either by God or men. Of the above passages 1 Corinthians 9:27 uses the word in this meaning. Probably Romans 1:28, “God gave them up unto a reprobate mind” must be explained on the same principle: the nous of the idolatrous heathen is permitted by God to fall into such extreme forms of evil as to meet with the universal rejection and reprobation of men. Wettstein’s interpretation, “an unfit mind,” i.e. incapable of properly performing its function of moral discrimination, has no linguistic warrant, and obliterates the wordplay between “they refused to have God in their knowledge (ouk edokimasan),” and “God gave them up to a reprobate (= unacknowledged, adokimos) mind.” 

The phrase “reprobate mind” is found in Romans 1:28 in reference to those whom God has rejected as godless and wicked. They “suppress the truth by their wickedness,” and it is upon these people that the wrath of God rests (Romans 1:18). The Greek word translated “reprobate” in the New Testament is adokimos, which means literally “unapproved, that is, rejected; by implication, worthless (literally or morally).”

Paul describes two men named Jannes and Jambres as those who “resist the truth: men of corrupt minds, reprobate concerning the faith” (2 Timothy 3:8). Here the reprobation is regarding the resistance to the truth because of corrupt minds. In Titus, Paul also refers to those whose works are reprobate: “They profess that they know God; but in works they deny him, being abominable, and disobedient, and unto every good work reprobate” (Titus 1:16). Therefore, the reprobate mind is one that is corrupt and worthless.

As we can see in the verses above, people who are classified as having a reprobate mind have some knowledge of God and perhaps know of His commandments. However, they live impure lives and have very little desire to please God. Those who have reprobate minds live corrupt and selfish lives. Sin is justified and acceptable to them. The reprobates are those whom God has rejected and has left to their own devices.

Can a Christian have a reprobate mind? Someone who has sincerely accepted Jesus Christ by faith will not have this mindset because the old person with a reprobate mind has been recreated into a new creation: “The old has passed away; behold, the new has come” (2 Corinthians 5:17). Christians are basically “new” people. We live differently and speak differently. Our world is centered on our Lord and Savior, Jesus Christ, and how we can serve Him. Also, if we are truly in the faith, we will have the Holy Spirit to help us live a God-honoring life (John 14:26). Those with reprobate minds do not have the Spirit and live only for themselves.

Interesting that we are being tested and most have no awareness of that fact. They live their lives believing a lie, that they will not be held accountable. I shudder. But Alice in Wonderland is such a perfect comparison to a place that is lawless because nothing makes sense when there are no rules and there are no rules when the law is not enforced. 

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Special Needs Trusts and Planning for a child’s future

As your special needs son or daughter reaches the age of the majority, 18, parents be aware of the need to begin transition services and obtain a guardianship so that you can continue to have access to information that would otherwise be confidential, make decisions on behalf of your disabled child, and receive State and/or Federal government benefits on their behalf. Most parents do not realize that upon reaching the age of 18, a disabled student is emancipated and legally able to make his or her own decisions, until a court deems otherwise. This means that theoretically, your son or daughter’s school can bar you from information about your child unless you have a guardianship in place. You will need an order of guardianship to attend to your child’s financial, medical, and educational matters.

You can file for guardianship as early as six months prior to his or her 18th birthday and should do so as soon as possible. While temporary guardianships are available in the event your guardianship application is not resolved prior to his or her 18th birthday, a plethora of hiccups can result from not being prepared ahead of this big day. Guardianships are not cheap, but necessary. They are not decisions Courts take lightly, with many Statutory probate courts assigning Court investigators to conduct due diligence and determine what is in your child’s best interest. In my experience, the “best interest of the child” standard in Guardianship is taken much more seriously than that of Family Court, though the definition is essentially the same. Due to the risk of exploitation and abuse inherent with an intellectually or physically disabled adult, the Courts will scrutinize applicants much more carefully than one would be in Family Court.

Guardianship will usually require you to go to court. If a guardian of the estate is appointed, a bond is required. The Judge will appoint an Attorney Ad Litem / Guardian Ad Litem to protect your son or daughter’s interest and serve as their lawyer or guardian ad litem. You must serve not only interested persons who do not execute waivers, but you must serve your child by constable. Very methodical processes are in place to ensure that those whose rights are being taken will not be victimized by proposed guardians. While guardians typically obtain guardianship of the person and estate of the ward, Courts have been known to Order one, the other or both and may separate the guardianships between persons where the need is apparent.

As soon as reasonably possible and ideally, upon filing, a certificate of medical examination (CME) or a document establishing intellectual disability, is required to be submitted to the Statutory Probate Court. As part of the evaluation process, the physician answers specific questions about the person’s mental and physical capabilities. The physician gives his or her professional opinion about whether the person has capacity to make his or her own decisions, vote, drive, marry and carry out other specific activities. Once a guardian is appointed, there are ongoing legal requirements which may require the assistance of an attorney. A guardian must file annual reports and/or annual accountings

As a full guardian of the person, you have the legal right and the responsibility to make all personal decisions for the ward. The guardian decide where the ward will live, whether to limit contact with family and friends, medications the ward is to receive, the personal rights that will be afforded the ward, medical and/or psychological treatment to be given, educational decisions. By assuming guardian of the person and estate, you should be prepared to make all decisions on the ward’s behalf in their best interest for the duration of the guardianship, which is typically indefinite. Be careful not to get caught behind the eight ball and contact an attorney as soon as possible during your child’s senior year to begin transition planning. [wpResize]

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Relocation in Texas – Family Law and Custody

Relocation has been a hot topic for family lawyers and for some of their clients for a few years. Courts have also published decisions in this area. With litigation involving the right to establish the child’s domicile becoming prolific, the guidance offered by these decisions is generally well-received and considered long overdue. The first decision from this group of cases was Lenz v. Lenz, 79 S.W. 3d 10 (Tex. 2002). The Supreme Court identified factors to be considered in deciding a relocation case, (1) the continued presence and maintenance of German culture in the children’s lives; (2) extended family and friends in Germany; (3) better employment opportunities and improved financial situation for the custodial parent; (4) the potential for the custodial parent’s improved emotional state; (5) the ability of the non-custodial parent to relocate or arrange a work schedule allowing for regular visitation; and (6) the custodial parent’s willingness to arrange flexible visitation.

The Lenz case also stands out because both parties and their children were German citizens. Left unsettled by the Supreme Court’s decision was the question regarding foreign nationals living in Texas and the Court’s authority to prevent relocation of their children to their native countries through use of a domicile restriction. As the case was decided in favor of Romy Lenz without addressing this question, it will likely surface in the future as a legitimate issue for appellate review.

In Echols v. Olivarez, 85 S.,W. 3d 475 (Tex. App.-Austin 2002, no Pet.), the Austin court of appeals held that the best interest of a child cannot be determined in a vacuum and that “slavish adherence” to such policy ignores the reality of a divorce family. In affirming an order allowing relocation, the court recognized that the child’s best interest may be tied to the custodial parent’s happiness, determining that the child would be a direct beneficiary of the mother’s job promotion, in terms of the financial and emotional benefits realized by the move.

The final relocation case in 2002, In Re C.R.O. and D.J.O.,a trial court’s decision refusing to permit relocation. The Amarillo court of appeals determined that the maintenance of a relationship between the children and their father outweighs the mother’s sound marital and financial considerations for a move to Hawaii. While the court found no violation of the mother’s constitutional right to travel, it did not address the merits of the mother’s equal protection argument since the issue had not been raised at the trial court level.

The Amarillo decision provides a subtle reminder to those prosecuting a requested relocation: Should you plan on challenging the constitutionality of our domicile restriction statute on appeal, any such defense must be affirmatively pled and raised in the trial court. The significance of these Court decisions may indeed come down to how far the distance is, given that two of these cases were off the mainland. [wpResize]

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Social Media to deny alimony or grant 60/40 split

 

A trend has emerged in the context of Texas Family Law to refer to the opposing spouse’s social media accounts in search of “smoking guns” and obtain an edge. This practice has provided unbelievable evidence and is seen primarily in cases where the Parties’ estate is substantial and one party seeks alimony from the other. Alimony is an exceptional remedy in Texas, other than temporary. It is governed by Chapter 8 of the Texas Family Code.

Alimony is limited to the following circumstances:

Spouse from whom sought was convicted of a crime involving family violence within 2 years or during the pendency of the case
Marriage lasted 10 years and spouse lacks sufficient resources to meet their minimum reasonable needs
Spouse is unable to care for self due to incapacitation due to physical or mental disability
Spouse seeking required to spend substantial time caring for their child due to a physical or mental disability
Spouse seeking clearly lacks earning ability in the labor market adequate to meet their reasonable minimum needs, defined by Section 8.054
Factors considered in determining alimony include: resources, comparative wealth, education, skills, duration of marriage, contribution as homemaker, physical and emotional condition, ability of payer to fund alimony and child support, BAD ACTS of a spouse (adultery), marital misconduct, efforts to find employment and/or job training. As one can see, alimony can be an uphill battle, particularly considering property divisions being roughly equal, aside from personal property.

Two ways in which social media is commonly used is to negate disability and demonstrate marital misconduct. In one case, the wife was denied alimony based on her alleged disability where Facebook photos showed her water skiing. In countless others, affairs are discovered through discovery of emails, text messages, Twitter, online dating services, and other social networking sites. While not a Texas case, many Courts agree with Largent v Reed, 2001 WL 5632688 Pa. Com. Pl. This Court ruled that Facebook offers no expectation of privacy. In a South Texas case I litigated, the Judge shockingly allowed the Plaintiff’s extravagant lifestyle to be paraded in front of the jury in a personal injury case, where wealth is in admissible to prove liability.

Word of warning to social media users: never forget that anything you write or post can and likely will be used against you. With high stakes, can you really afford it? [wpResize]

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Primary Custody in Texas

Parents frequently asked “How is primary custody determined by the Courts?” The term “primary custody” is commonly used jargon to describe the Parent with the exclusive right to designate the child’s primary residence, since parents will be deemed Joint Managing Conservators in most cases (“JMC”). Joint Managing Conservator denotes the fact that both parents have the same rights and duties, with the exception of the parent who will provide the child’s residence. The Texas Family Code contains a rebuttable presumption that it is in the best interest of the child to have both parents co-parent and Courts rely upon the

Standard Possession Order in most cases.

Circumstances that might cause a Court to deviate from a Standard Possession Order or Joint Managing Conservatorship incude: prior family violence towards any member of the family, whether either Parent has a history of abuse or neglect (both of which would prohibit a JMC), whether the Parents can peacefully co-parents, and other factors that might render a Parent unfit to serve as JMC. See Tex. Family Code § 153.004. The factors generally considered include:
The parent’s ability to give first priority to the child’s welfare;
The parent’s ability to reach shared decisions in the child’s best interest;
The parent’s ability to encourage and accept a positive relationship between the child and the other parent;
The parent’s role/participation in the child’s rearing;
Whether appointment of the parent as JMC will benefit the child’s physical, psychological and emotional needs and development; and
Where the parents live in relation to one another.
See Tex. Family Code § 153.134.

If one parent has clearly been uninvolved in caring for the child’s basic needs and upbringing, has not been active in the child’s daily activities and schooling, disparages the other parent or actively discourages the child from a relationship with the other parent, abuses alcohol or other substances (legal or illegal), has frequent emotional outbursts, demonstrates lack of self-control, or otherwise shows an inability to exercise good parental judgment, the court is less likely to appoint that parent as a JMC, and will instead consider granting “primary custody” to the other parent.

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