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. 

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]

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]

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]

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.