I would like to post a bit on terminations and adoptions. I get tons of questions and emails regarding terminating a parents parental rights or a step parent wanting to adopt a step-child. I am going to give a very brief procedural layout for how this works in an attempt to answer some of these questions. In part 2 of my post I will discuss some of the hoops that must be jumped through to accomplish a termination and adoption.
Before anybody can adopt a child, either one or both biological parents must have their parental rights terminated. That means that if a step-father wants to adopt his step-child, the biological father's rights must be terminated. The point is, there can only be one father and one mother for each child whether that is biological or legally (through adoption).
A termination in Texas can only be completed by having "grounds" for the termination. Put simply "grounds" are reasons for the termination. You do not get to determine the reasons, the Texas legislature has set up the reasons for you. If you will look to the right, there is a link to my website. Please click on that link and go the the "resource links". There you can find the Texas Family Code. Specifically you need to look at Chapter 161, Section 161.001. There you will find your reasons. THERE ARE NO OTHERS! I can see the posts now...."can i terminate the father's rights cause he never visits". Is it in the list is just referenced? Then no. "Can I terminate the mother's rights cause she is crazy and talks to the walls." Is it on the list? Then no you cannot terminate for talking to walls.
The two most common reasons to accomplish a termination that I see are failure to support the child for one year or the signing of an affidavit of relinquishment. These are not the only ones, as you can see from the list, just the most common. Any of the others will work as well if they are applicable.
Failure to support a child is pretty obvious. That means that the parent has not financially supported their child. This can be failure through a court order or not. Bottom line, if you don't support your child, your rights can be terminated. The failure to support has to be recent (within 6 months of filing the petition to terminate). This means that you cannot use a parent's failure to support a child that occurred 5 years ago if the parent supports the child now.
The second is the affidavit of relinquishment. This is basically an agreed termination as the biological parent has agreed to terminate rights. The form for this is very specific and probably needs to be obtained from an attorney. This alone, as seen from the list, is grounds for termination.
In the first reason, or in any other reason other than the affidavit, you are going to have to go through a court hearing to get the rights terminated. That means filing a lawsuit, serving the party you are trying to terminate and setting a hearing where a judge will decide the issue.
With the affidavit, there is typically not the need for a full blown termination hearing as the parent has agreed to terminate. In some cases, this moves you straight to the adoption. I say in some cases because there are certain times when a person agrees to terminate their rights, but the court will not do it. I will discuss this below.
In any case, you have to complete the termination before you can complete the adoption. If you have to have a trial, then that needs to proceed and conclude before the adoption can proceed. If the affidavit is used and you do not run into the problem discussed below, then you are ready to proceed with the adoption.
Just because a biological parent agrees to sign an affidavit of relinquishment does not mean the court will terminate. The court is primarily concerned about the best interests of the child. One of the major interests the court protects is the support of the child. They will not allow a parent to terminate to avoid paying child support. They also will not allow a parent to terminate another parent's rights unless it is shown that there is someone to step in and take the place of the support provided or owed by the terminated parent or unless the parent seeking the termination of the other parent's rights can establish to the court that they can adequately meet the needs of the child financially. Even upon this showing, they still may not terminate. A parent is obligated to support their children and the court does not take this lightly. If there is someone out there who can support the child, the Court wants them supporting the child.
One more note regarding child support. While a termination of a parent's parental rights will terminate all future child support payments, it will not terminate amounts owed in the past. Those amounts have already accrued and cannot be undone.
This concludes Part 1. See you in Part 2!
The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!
Monday, February 09, 2009
Monday, October 27, 2008
oops i forgot to mention....
You can also purchase very inexpensive legal advise, for Texas, a la carte for $35.00 per issue. Basically you buy an email to me for $35 where you can list all your questions. This is designed for situations in which you want to represent yourself, but have a simple legal question or two that you do not know the answer to. For $35.00 you can get that answer or answers.
Now that is some cheap legal advise!
Now that is some cheap legal advise!
Thursday, October 23, 2008
it lives!
Okay it is official, my form website is up and running. You can visit it through my "uncontested divorce" page on www.chrislawyer.com or you can visit it directly at this address.
In addition to providing forms for uncontested (or agreed) divorces in Texas, I will soon have uncontested or agreed petitions to modify Texas orders or decrees already entered by the court.
For instance if you are already divorced but your child says they want to come live with you, and the other parent agrees, you can use my forms to file and finalize a modification of the custody provisions in your decree. Of course this is for Texas only.
Another example, and important in this economy, is when a divorce decree or order sets an amount of child support that is no longer correct because of changes in your job or you rate of pay, you can use my forms in a very inexpensive fashion to get your child support modified (assuming that your ex is in agreement).
If someone is interested in the forms, they can use them and the "pay for legal advise" section and get help with their specific legal situation. In this scenario you could file your own lawsuit using my forms and then get the help you need in representing yourself. Pretty cool.
If none of the above work, you can always retain me if you need to divorce or modify an order in the Dallas, Plano, Denton areas. Sorry, can't jet down to San Antonio to help you other folks.
Enough self promotion....thanks for reading this mish mash!
Tuesday, September 09, 2008
i'm still alive
I still live and breathe. Things have been very hectic around the office with new clients (good), software malfunctions (bad) and a new project I have been working on in a further attempt to help people with their family law issues.
The new project is a form website for do it yourself divorces in Texas, do it yourself wills, etc... This form service will be fully integrated with my existing website as you can see on my here. My service will differ from the free divorce forms and the pay for divorce forms websites in that I will provide legal review of the forms to make sure they are correct. With the other divorce form websites you simply buy the form and you are on your own. On mine, you get my assistance with the forms and can even just buy a la carte legal advise. In the future I will try to integrate a do it yourself modification section for Texas so that you can do your own modifications.
I am very excited about this new service and will announce more about it in the future.
As for my blog posts, I am running a little dry on ideas, so if anyone has some topics that they think are interesting, please let me know and I will make a list.
Type to you soon.
Wednesday, June 04, 2008
holding parents feet to the fire
A good portion my practice in Dallas and Collin county is enforcement of the court's orders as they relate to child support and visitation of children. These occur in situations where the Court has already entered orders regarding children, for instance a Final Decree of Divorce, an Order Modifying Prior Order of the Court, or Order in Suit Affecting the Parent-Child Relationship.
Once the court enters those orders, they expect you to follow them. If you do not, the aggrieved (pissed off) parent, can sue the other parent for contempt of court.
A suit in Texas for enforcement of a child support order is relatively simple process. An attorney must simply prove that a set amount was payable on a set date at a set place and time, and that those payment were not made. For example, Dad is ordered to pay $500 per month beginning on June 1, 2007 and each first of the month thereafter to the disbursement unit in San Antonio Texas, address 1234 Main Street. If June 2008 rolls around and Dad has not made those payments it is relatively simple to prove that he is in contempt. He knew when he was supposed to pay, how much to pay, and where to pay it. If he does not do it, he is in contempt.
Enforcement of visitation in Texas can be that simple as well, but it rarely ever is. The reason is that the ticked off parent (parent not receiving their visitation) doesn't do what they are supposed to do. Let me explain by example:
Father is awarded custody of the child. He is ordered to provide the child to the mother for her visitation on the first, third and Friday of each month at his residence at 6:00 p.m. Simple enough, correct? Let's add these facts - mom and dad do not get along (i know that is far fetched, but work with me here) and dad makes mom's visits as difficult as possible. Mom calls dad on the first Friday at about 4:00 p.m. to confirm she is picking up the child (which she is not required to do, but does because it takes her 45 minutes through traffic to get to dad's house) and dad says don't bother showing up because the child and I won't be there. The mom makes a note of this and decides to forego the traffic and mess. She'll wait until the next visitation on the third Friday. Same thing happens on third Friday, so mom makes a note of it. She decides if he does it again she is going to sue his pants off. Fifth Friday comes and dad does same thing. Mom decides to sue for enforcement or contempt for the father violating the court's order.
Ruling? Father is not in contempt! WHAT?!! He didn't provide the child, how can he not be in contempt? He is not in contempt because MOM failed to follow the Court's order too! For mom to hold dad in contempt, she needs to appear on the first, third and fifth Friday of each month at dad's house at 6:00 p.m., regardless of whether the child is there or not. That is what the court order said and that is what mother must do. If she follows the court's order, and then dad does not, dad is in contempt.
While my example references a common situation, this same logic applies to other areas of decrees or orders of the court. FOLLOW THE ORDER, NOT WHAT YOUR EX-SPOUSE OR MOM OR DAD OF YOUR CHILD TELLS YOU. If you are unclear how to follow your order or what to do, call a lawyer. Most lawyers will offer free consultations or charge a small fee to speak with them. I do divorces in Plano, Frisco, McKinney (Collin County), and in Dallas, Richardson, Carrollton (Dallas County). I also handle modifications and enforcements of orders.
Moral of the story: If you follow the decree, and ignore what people tell you, you should be well on your way to holding the other parent's feet to the fire!
The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!
Once the court enters those orders, they expect you to follow them. If you do not, the aggrieved (pissed off) parent, can sue the other parent for contempt of court.
A suit in Texas for enforcement of a child support order is relatively simple process. An attorney must simply prove that a set amount was payable on a set date at a set place and time, and that those payment were not made. For example, Dad is ordered to pay $500 per month beginning on June 1, 2007 and each first of the month thereafter to the disbursement unit in San Antonio Texas, address 1234 Main Street. If June 2008 rolls around and Dad has not made those payments it is relatively simple to prove that he is in contempt. He knew when he was supposed to pay, how much to pay, and where to pay it. If he does not do it, he is in contempt.
Enforcement of visitation in Texas can be that simple as well, but it rarely ever is. The reason is that the ticked off parent (parent not receiving their visitation) doesn't do what they are supposed to do. Let me explain by example:
Father is awarded custody of the child. He is ordered to provide the child to the mother for her visitation on the first, third and Friday of each month at his residence at 6:00 p.m. Simple enough, correct? Let's add these facts - mom and dad do not get along (i know that is far fetched, but work with me here) and dad makes mom's visits as difficult as possible. Mom calls dad on the first Friday at about 4:00 p.m. to confirm she is picking up the child (which she is not required to do, but does because it takes her 45 minutes through traffic to get to dad's house) and dad says don't bother showing up because the child and I won't be there. The mom makes a note of this and decides to forego the traffic and mess. She'll wait until the next visitation on the third Friday. Same thing happens on third Friday, so mom makes a note of it. She decides if he does it again she is going to sue his pants off. Fifth Friday comes and dad does same thing. Mom decides to sue for enforcement or contempt for the father violating the court's order.
Ruling? Father is not in contempt! WHAT?!! He didn't provide the child, how can he not be in contempt? He is not in contempt because MOM failed to follow the Court's order too! For mom to hold dad in contempt, she needs to appear on the first, third and fifth Friday of each month at dad's house at 6:00 p.m., regardless of whether the child is there or not. That is what the court order said and that is what mother must do. If she follows the court's order, and then dad does not, dad is in contempt.
While my example references a common situation, this same logic applies to other areas of decrees or orders of the court. FOLLOW THE ORDER, NOT WHAT YOUR EX-SPOUSE OR MOM OR DAD OF YOUR CHILD TELLS YOU. If you are unclear how to follow your order or what to do, call a lawyer. Most lawyers will offer free consultations or charge a small fee to speak with them. I do divorces in Plano, Frisco, McKinney (Collin County), and in Dallas, Richardson, Carrollton (Dallas County). I also handle modifications and enforcements of orders.
Moral of the story: If you follow the decree, and ignore what people tell you, you should be well on your way to holding the other parent's feet to the fire!
The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!
Friday, May 16, 2008
danger danger
Just another quick post reminding anyone reading these posts to not accept what is written as the final word on what the law currently says. I just had a comment on my first post, which is years old, about how old you have to be to get married. The law has changed since I first wrote that post, so it is basically useless. THE BOTTOM LINE IS, DO NOT RELY ON MY BABBLINGS IN THIS BLOG AS THE LAW...CONTACT A LAWYER IN YOUR AREA TO CONFIRM EVERYTHING WRITTEN IN HERE.
The post is so old, the links don't even work anymore. This blog is intended to give you some general background as to family law, but it is not timeless, although my humor is. Thank you.
Monday, April 14, 2008
journaling in texas divorce and modification cases
Okay, this submission will be a quickly, but VERY important. The subject is journaling. It can apply in divorce situations, but is most important in modifications of prior orders (i.e. taking someone back to court to get custody or change visitation).
A good bulk of my work is in the modification field and therefore I hear all kinds of stories and allegations. The problem with most stories and allegations is that they are coming from memory. This creates two problems, one they cannot recall the story exactly, or most importantly they cannot put a date on it. This creates unreliability in the evidence. It also creates a he said, she said scenario.
Client: "My ex never exercises his visitation and when he does, he is always late."
Lawyer: (Drooling at the excellent information he is about to get) "Can you get me a list of all those dates he missed and the dates and times of when he was late?"
Client: "Well, I do not remember all the dates, but it is pretty much a couple times a month."
Lawyer: (Rolls his eyes and sighs) "Okay well try to put something together."
What otherwise would have been excellent evidence is now pretty much worthless. When dad denies it, I have nothing to back up our statements. Too bad.
The way to combat this is to keep a journal of everything involved in your case or your child's life. If the parent is always late to pick up the child, document it. If the parent is constantly missing visitations, document it. If your ex says something particularly nasty on the phone in front of the child, document it. You get the point.
It doesn't have to be anything elaborate, just a simple calendar to refresh your memory down the road. Imagine you get in a courtroom and you are alleging that the other parent is constantly missing visitations. The other parent says that is not true, but does not really seem to have anything to back up their denial. On the other hand, you have your journal and know the exact dates, times and what was said for each missed visitation and can list them out for the judge in detail. Who do you think the judge will believe?
A simple little task, kept up with over time, can have such a HUGE impact on your case.
Two big things to consider however:
1. Do not be TOO detailed. This is not a diary. Remember that you may have to give the other side a copy of your journal if you use it at a hearing. If you know that the other side could be reading it, that will help you keep it simple.
2. Disregard this post if you are ever the opposing party on one of my cases!
The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!
Subscribe to:
Posts (Atom)
