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Archive for the ‘Child Custody’ Category

Common Misconceptions about Child Custody in Texas

Posted on October 2nd, 2017 by The Red Headed Lawyer

Transcription below:

I’m Marivonne Essex and I’m the Red Headed Lawyer and I want to talk to you today about some common misconceptions that I see people speak to me about when they come in to talk about situations, legal situations with their family, with divorces, with child custody, that kind of thing. The most common misconception I see regarding children is when someone comes in and says, “I want sole custody of my children. That’s the most important thing to me.” What I do then is I talk to them about what our Texas family code, which is our set of laws, says about custody of children, and the first thing we start with is the label that each parent gets. Except in extreme situations, each parent gets the same label, which is Joint Managing Conservatorship. The label is not near as important as the rights and duties that each parent has regarding their children, and that is what determines what the layman will commonly know as sole custody. The most important right you can have for your children, for example, is the right to decide the residence of those children, so I will speak to people about what that means, and whether it is limited or not. The other rights and duties that commonly get talked about are the right to make medical decisions regarding your children, the right to make psychological and psychiatric decisions regarding your children, the duty or to pay child support, or the right to receive child support. Those are the most important rights and duties. There are many other rights and duties as set out in our set of laws, which all parents commonly have, such as, each parent, except in extreme circumstances, will be able to go to the school and talk to the teacher about how the child is doing. Each person will be able to go to the doctor and see the child’s medical records. Each person has a duty to support the child no matter where the child lives. So when you’re talking about custody of your children, rather than saying, “Sole custody is what is important” what you want to focus on, and what you want to address with your lawyer is, “What rights and duties will I have with my children?” In our office we take those individually and we go over them, each one of them so that you understand what your choices are.


How to Make the Divorce Process as Easy as Possible

Posted on September 22nd, 2015 by The Red Headed Lawyer


Divorce isn’t easy. Typically, it’s a long, emotional and drawn out time in your life that you never imagined would be a part of your story.

While we all agree that getting a divorce isn’t easy – there are several ways that we can make the divorce process easier.

Communicate with your Ex

Sounds crazy, right? But having an open line of communication with your ex can allow you to have an easier divorce. Whether the communication is done via email, phone or through your lawyer, it will help in several ways:

  • Saves you money
  • Keeps the divorce moving forward
  • Maintains your integrity

While every situation is unique, I recommend that you set boundaries when it comes to communicating with your ex during the divorce; I would never want anyone in a situation that they don’t need to be in. With certain divorces, some couples shouldn’t communicate except through a lawyer. For example, DO NOT use this advice if you feel that your spouse is so controlling, you could possibly enter into an agreement that you don’t really want.

Plan ahead for child custody

If children are part of the divorce, try to plan ahead on what makes the most sense for your family while keeping your children’s best interests in your mind. Think about schedules and schooling in order to arrange the best custody agreement for them. Having a jointly agreed upon idea will help move the custody portion along while keeping things easy for you. Remember, children psychologically see themselves as one-half of each parent. Parents who work together to maintain this whole for their children will see healthier, happier children who will transition much more easily through the divorce process.

Let it go

Assets, relationships and your old life are things of the past. Being able to emotionally let all of these things go will save you time and energy throughout the divorce process. It’s difficult to split the house, cars, and debt that have accumulated over the years, but it is part of the entire process.

Prepare yourself to detach from people and things, prior to the divorce becoming final, so you can move on quicker.

Hire a divorce lawyer

Having someone that you can trust, that supports your best interests, gives you a peace about the entire process. Divorce lawyers know the ins and outs of what you’re going through and are there to help you.

A divorce lawyer understands the process and can handle the courts of law much better than if you were to represent yourself. More than any other time, this is the time that you need an advocate, somebody who knows the law and at the same time is looking out for your best interest. Some of the biggest legal disasters are do-it-yourself divorces which basically have to be redone later, costing more in both time, money and stress. Save the DIY for home projects.

Take time for yourself

One of the most important things to remember during your divorce is to take time for yourself. I tell my clients to do whatever it takes to relax. Plan a weekend getaway or a spa weekend, to keep your mind off of the divorce.

Making the divorce process easier will not only speed things up, but it will give you a peace during one of the most unsettling moments in your life.

How to Make Divorce Easier On Your Children

Posted on May 22nd, 2013 by The Red Headed Lawyer

Sometimes in the aftermath of a divorce, spouses can get so caught up in their own quarrel that they don’t realize what chaotic situation they are putting their children in. After all, hearing both parents constantly degrade one another is sure to impact the child’s views on both parents. For children, they can sometimes get the feeling that they have just went through their own divorce; they feel like they are slowly losing one of their parents.

You have built a family centered on a consistent two-parent system, and changing something that your children have grown used to will be undoubtedly stressful on them. While some stress may be unavoidable, a great deal of it can be avoided. There are things you can do or refrain from doing, to limit the amount of stress and negative effects your children have to endure.

You should avoid confiding in your children about adult concerns and disagreements with your spouse. If you have a dispute with your ex-spouse, don’t expose your children to your conflicts and frustration. Doing so could lead to your child having negative thoughts about their other parent, and could make them feel like they have to pick sides. You should also avoid interrogating your child about the other parent or what goes on at the other parent’s house. It’s normal to ask general questions about your child’s time there, but you shouldn’t pry. Encourage your children to call the other parent when they have news or just want to talk. Keep the other parent informed about school events and other activities. Do as much as you can to show your children that their other parent will be a major part of their life moving forward.

Don’t introduce major changes into your child’s life if you can help it. Try to keep to your usual family routines and community ties. Consistency and structure makes people in general comfortable, this is especially true with children. If you can keep their life as close to status quo as possible, they won’t feel like their world is being flipped upside down. Continue to parent as you always have. You may feel guilty that your children have to cope with divorce, but you should resist the urge to be more lenient on them. They’ll feel more secure if you’re firm and consistent.

If you and your ex struggle to interact without hostility, it’s a good idea to consult a therapist. A family therapist or professional mediator can help you develop a more friendly communication style. Since you have years of co-parenting ahead of you, learning to get along with your ex may be the greatest gift you can give your child. If your child sees that his or her parents are able to interact in a cordial way, it will allow him to feel like everything is okay. It’s also a good idea to get help for a child that is having trouble coping with divorce. A young child may show regressive behavior like excessive clinginess or throwing temper tantrums, while an older child may become angry, withdrawn, or depressed. A therapist can provide a safe place for your child to express his or her feelings, which will go a long way in terms of coping.

Best Interest of the Child

Posted on May 3rd, 2013 by The Red Headed Lawyer

No matter how much you and the other parent try to resolve disputes in a mature fashion, it is a good possibility that the two of you aren’t going to completely agree on everything. It is imperative that these disagreements are handled in a productive fashion. Ideally, these matters can be resolved without the direct involvement of the courts. However, if forced to become involved, judges make decisions based on the best interests of the child. Generally, the best interests of the child include items like the physical and emotional safety of the child, as well as the child’s stability, security, and overall well-being. Courts generally determine that it’s in a child’s best interest to have a consistent, supportive relationship with each parent. This usually means that, if possible, both parents will have relatively equivalent parenting time and will share the decision-making responsibilities with the child. This will theoretically place the parents on equal footing. The fact that you may disagree with the parenting style of the other parent does not mean that you can force them to adapt to your preferences. It is important to recognize that each parent will generally have equal legal parenting rights. Although this sounds reasonable, problems, disagreements, and questions often arise. Who gets to determine what, and under what circumstances? What does “equal” decision-making actually mean? While court orders or parenting plans attempt to address all possible problems, it is impossible to anticipate every possible scenario that might arise. So how do these disputes get resolved? Hopefully, the two parents maintain a relationship that is functional enough to allow them to maturely discuss these issues and resolve them. Most court orders require that the parents attend mediation prior to either parent filing an action concerning a parenting time or decision-making dispute with the court. Afterwards, the parents can file an action with the court to address these matters. However, keep in mind that filing an action may lead to an outcome that isn’t ideal for one or both of the parents. Remember, parents working together tend to make the best decisions for their children.


Posted on March 20th, 2013 by The Red Headed Lawyer

“Alienation” is becoming a frequent topic for family law attorneys. If you are not familiar with the term (as applied to family law), the best way to describe it is brainwashing. One parent “alienates” the child from the other parent by repeatedly and deliberately telling the child “bad” things about the absent parent. Telling the child “bad” things about the other parent, more often than not, in the opinion of the parent making the statements to the child, is “telling the child the truth.” The brainwashing parent will try to convince you that the child “should be told the truth.” Most psychologists will tell you that the psychological makeup of a child consists of the unspoken understanding that he or she is the product of both parents and thus hearing bad things about the other parent is internalized as bad things about the child himself or herself, whether the statements are true or not. Divorce parenting classes almost always emphasize that a parent should not make derogative statements about the other parent for that reason. It works long-term to eat away at the self-esteem of the child. It’s like your grandmother always told you, “If you can’t say anything good about someone, don’t say anything at all.”

Despite the understanding of most good parents and most professionals of its harm to children, alienation is one of the complaints I hear most often from parents. Unfortunately, it is always one of the hardest things to document and to get in front of a court, making it most frustrating because it is so hard to put a stop to. Hearsay testimony or testimony from children, and virtually any testimony from a child, except in child abuse cases, is not allowed.

We are starting to see cases in which at last the topic of alienation is seriously and carefully addressed, in spite of legal roadblocks thrown up. The latest and most visible case is a New York case in which the court reversed custody from mom to dad based on alienation. “This is the case that made national news last year when there was camera coverage of the tearful, almost hysterical, transfer of custody away from the mother, with whom the 5-year-old twins had lived the entirety of their life.” (Quote from Family Law Section of the State Bar of Texas recently.) The New York case has since been overturned because the appellate court believed the trial court leaned too heavily on expert testimony from various mental health professionals in making its decision.

Despite the fact that the New York case was overturned on appeal, it is important to note that the issue of alienation is becoming a topic, which is coming to the courts and that the courts take seriously. In my opinion, it is not soon enough. The damage which alienation does to children is a to-date hidden threat, one that causes many children serious emotional damage.

Who Gets the Dependency Exemption for Divorced Parents?

Posted on February 8th, 2013 by The Red Headed Lawyer

First, it is important to understand that a judge in Texas deciding divorce issues is a state court judge. A claim for the dependency exemption for a child for federal income tax purposes is a federal issue. Federal trumps state, so the divorce judge cannot decide who gets the dependency exemption. The parents, however, can reach an agreement which is incorporated into the final decree of divorce or post-divorce. In certain circumstances, this can be binding on the parents. It is important, then, to be aware of IRS rules regarding dependency exemptions during and after a divorce.

The general IRS rule for deciding which parent is entitled to the exemption of a child of divorced parents is that the parent having custody for the greater part of the year (“custodial” parent) is the one entitled to the exemption. If the child resides with both parents an equal number of nights, the rule then becomes the parent with the highest adjusted gross income is treated as the custodial parent. The parent entitled to the dependency exemption under these rules can release the claim for the exemption to the noncustodial parent by signing an unconditional written declaration releasing the exemption to the noncustodial parent. IRS Form 8332 is the form used for this purpose. Other “written declarations” could conceivably meet the statutory requirements, but the safest way to insure that the exemption is released to the noncustodial parent is to use this form. It has been specifically held that divorce decrees and separation agreements do not meet the requirements. For pending divorces, IRS Form 8332 should be attached as an exhibit to the divorce decree as an example of the written declaration, and the custodial parent should sign an original of the form at the same time he or she signs the divorce decree.

Can the release be revoked? The answer is yes, but written notice must first be provided to the parent currently holding the release. The revocation of the release does not become effective until the year after attempts are made to provide it to the noncustodial parent.

For more information or questions, a tax professional should be contacted.