The Texas Family Code standard possession order (SPO) sets forth a schedule of weekend possession (first, third, and fifth weekends) each month both as to parents who live within 100 miles of each other, or who live more than 100 miles apart. But there is an approaching holiday that supersedes any conflicting weekend possession regardless of the distance the parents reside apart.

That holiday is Mother’s Day. The SPO provides that a mother who is a conservator of a child under the order shall have possession of the child beginning at 6 p.m. on the Friday before Mother’s Day, and ending at 6 p.m. on Mother’s Day. If that weekend is not one under the SPO that would have been her weekend, then she will pick the child up from the residence of the other conservator who would have had possession that weekend and must return the child to the same place at the end of the Mother’s Day possession.

But wait—there’s more, the same precedence is given to a conservator who is a father for Father’s Day weekend which falls in June of each year.

It is the declared public policy of this state to assure children have frequent and continuing contact with parents who have shown the ability to act in their children’s best interest, and a strong statement about the importance of each parent’s role is made by giving precedence to these special days.

Wishing everyone a Happy Mother’s Day (and an early Happy Father’s Day next month)!

In my previous blog Spring Break is History; Here Comes Summer, I discussed step one of the Texas summer possession two step—-the notifications that are due by April 1 under the Texas Family Code. Now on to step two!

When the parents reside 100 miles or less apart, the parent awarded possession and access to the children as a managing conservator may by April 15th of each year select possession for one weekend during the possessory conservator’s extended period of summer possession by written notice as follows:

• the weekend will be from Friday at 6:00 p.m. until Sunday at 6:00 p.m.
• the managing conservator picks up and returns the child to the possessory conservator

In addition, that parent may by April 15th or with at least 14 days’ notice on or after April 16th of each year select possession by written notice to the possessory conservator as follows:

• one weekend between the day after school dismisses for summer vacation and 7 days before school resumes at the end of summer vacation
• which otherwise would be the possessory conservator’s weekend
• as long as it does not interfere with the possessory conservator’s extended summer possession or Father’s Day if possessory conservator is the father

When the parents reside over 100 miles apart, the parent awarded possession and access to the children as a managing conservator may by April 15th of each year select possession for one weekend during the possessory conservator’s extended period of summer possession by written notice as follows:

• the weekend will be from Friday at 6:00 p.m. until Sunday at 6:00 p.m.; but if the period of possession by possessory conservator is more than 30 days, then the managing conservator may have two non-consecutive weekends;
• the managing conservator picks up and returns the child to the possessory conservator

In addition, that parent may by April 15th select possession by written notice to the possessory conservator as follows:

• 21 days between the day after school dismisses for summer vacation and 7 days before school resumes at the end of summer vacation
• to be exercised in no more than 2 separate periods of at least 7 consecutive days each beginning and ending at 6:00 p.m. on the designated days
• during which the possessory conservator will not have possession as long as it does not interfere with the possessory conservator’s extended summer possession or Father’s Day if possessory conservator is the father

And that is how you do the summer possession Texas two-step!

On March 21, 2017, the Dallas Court of Appeals reversed and remanded an order appointing paternal grandmother a joint managing conservator with the child’s mother, In The Interest of J.R.W, A Child.

For a person to bring a lawsuit, they must have standing to do so, meaning that they have a connection to the matter and a stake in the outcome. Statutes set forth the requirements for a person to have standing in regard to a claim, and for grandparents, standing regarding conservatorship (custody) or possession or access to their grandchildren is set out in the Texas Family Code.

In this case, grandmother intervened into a suit affecting the parent-child relationship filed after the parents who had never married had separated. The child’s mother challenged grandmother’s standing to intervene in the suit, which was a threshold issue. The court of appeals found that grandmother had standing under Texas Family Code §153.432 to request possession or access to the child, and had filed the required affidavit (and a later an amended affidavit) with supporting facts that the denial of her request would significantly impair the child’s physical health or emotional well-being.

If the court determines the facts in the affidavit if true are not sufficient to grant the relief requested, then the court shall deny the relief and dismiss the grandparent’s suit. The mother complained that some of the facts in the affidavit did not exist at the time grandmother filed, but occurred afterward. The court held that grandmother’s affidavit was not required to stand or fall only on facts existing at the time she filed; since she was not basing her standing on the family code section that she had actual care, control, or possession of the child for a least six months not more than 90 days before filing.

The mother then complained that the order failed to contain specific findings by the trial court required under Texas Family Code §153.433 when a grandparent is granted possession and access over a parent’s objections. §153.433 as amended now follows the U. S. Supreme Court decision in Troxel v. Granville that there is a presumption that a parent acts in his child’s best interest. Because of this presumption, the trial court must include specific findings in its order granting grandparent possession and access; those findings cannot be implied or deemed by looking at the record as a whole. For this reason, the case was reversed and remanded back to the trial court for further proceedings consistent with the opinion.

So, although grandmother not only survived the challenge to bring the suit but also was ultimately named a joint managing conservator, the judgment was reversed for not containing the mandatory findings as to why this relief was granted; illustrating the strict statutory requirements that must be met in grandparent access actions.

The Texas Family Code standard possession order (SPO) is the schedule followed by most divorced parents in this state. Since it is designed to be the presumed minimum schedule, it is very detailed and contains many notice provisions that apply to both parents. One of those important notice provisions is coming up on April 1st.

A parent awarded possession and access to the children as a possessory conservator who resides 100 miles or less apart from the primary residence of the child may by April 1st of each year specify his summer possession by written notice to the managing conservator as follows:

• 30 days:
• between the day after school dismisses for summer vacation and seven days before school resumes at the end of summer vacation
• to be exercised in no more than two separate periods of at least seven consecutive days

If a parent does not give the notice by April 1, then their summer possession will be from 6 p.m. on July 1 through 6 p.m. on July 31.

A parent awarded possession and access to the children as a possessory conservator who resides over 100 miles from the primary residence of the child may by April 1st of each year specify his summer possession by written notice to the managing conservator as follows:

• 42 days:
• between the day after school dismisses for summer vacation and seven days before school resumes at the end of summer vacation
• to be exercised in no more than two separate periods of at least seven consecutive days

If a parent residing over 100 miles does not give the notice by April 1, then their summer possession will be from 6 p.m. on June 15 through 6 p.m. on July 27.

Written notice is defined in the SPO to include electronic mail (email) or facsimile, and is deemed timely made if received or postmarked before or at the time the notice is due. Note: the SPO does not include text or other electronic messaging as a way to give notice.

So don’t be an April Fool; provide notice of your summer possession by April 1st, and most of all enjoy that time with your children.

Extremely limited under federal and Texas law, as recently confirmed in the Dallas Court of Appeals decision In The Interest of K.R.P.C., A Child.

In 2000, the United States Supreme Court spoke on this issue in Troxel v. Granville, finding that the due process clause of the Fourteenth Amendment to the United States Constitution protected the fundamental right of parents to make decisions concerning the care, custody, and control of their children. Accordingly, statutes can permit a court to order visitation by a grandparent against a parent’s wishes only in the most limited of circumstances.

In Texas, those circumstances are set out in the Texas Family Code. A grandparent seeking court-ordered access must include an affidavit with his request setting forth facts alleging that denial of the access to the grandchild would significantly impair the child’s physical health or emotional well-being. The court must deny the relief and dismiss the suit unless the court determines that the facts in the affidavit would support the requested relief. Assuming that the grandparent can get past that hurdle and actually have a hearing on his request, there are additional requirements to be met before the court can order the grandparent access.

In the Troxel case, the court noted that a state cannot infringe on a parent’s right to make child rearing decisions simply because a state judge believes that a “better” decision could be made.

The Dallas Court of Appeals following the Troxel ruling and the requirements of the Texas Family Code affirmed the trial court’s judgment dismissing the grandfather’s request for access. The court also noted that grandfather, who represented himself, should be held to the same standard as a licensed attorney in regard to complying with the applicable laws and rules of procedure. To hold otherwise, would give an unfair advantage to parties who choose to represent themselves.

Today, in Kramer v. Kastleman, the Texas Supreme Court clarified the application of the acceptance-of-benefits doctrine to an appeal of a divorce case, an issue it has not taken up since its decision 67 years ago in Carle v. Carle. Simply put, the doctrine means a party cannot have it both ways—appeal the court ruling while accepting the benefits of it—and if it was found that a party had done so, his appeal could be dismissed with no review of the merits.

While there were exceptions to the doctrine, such as economic necessity, the Court noted in Kastleman that the exceptions had not been uniformly applied by the various courts of appeals in Texas. Some courts applied a strict approach and summarily dismissed a party’s appeal, while others took a more enlightened approach in reviewing and applying the exceptions.

The Court also noted that this doctrine is particularly problematic in divorce cases where a party may be accepting benefits in property in which he or she already had an interest as part of the marital estate. In these instances, the application of the doctrine as a hard-and-fast rule is contrary to its origins in equity—fairness. It is also contrary to this state’s policy favoring adjudication on the merits of a claim rather than on a technicality.

The Court concluded that equity does not favor a Catch-22, putting a party in the position of choosing to give up control of community property or give up their appeal. Merely using community property awarded in the decree is not enough to preclude an appeal without a showing that the other party has been prejudiced by the use of the property.

The bottom line for divorcing parties in Texas is that now, in weighing the factors as to whether to appeal a divorce decree, using property awarded to them in the decree is no longer an automatic foul resulting in dismissal.

And cats? And goldfish? In Alaska, the divorce laws were recently amended to provide that courts can consider the well-being of the animal in making an award of custody of the pet. The law is one of the first in the country to do so and is being hailed as groundbreaking.

In Texas, pets are still considered to be property, Strickland v. Medlen, and are treated as such in a divorce. However, under the Texas Family Code, a protective order can include a provision prohibiting a person found to have committed family violence from harming, threatening, or interfering with the care, custody, or control of a pet, companion animal, or assistance animal in the care of a person, family, or household member protected by the order.

This protective language has been incorporated into the Dallas County Standing Order Regarding Children, Pets, Property and Conduct of The Parties which applies in all family law cases filed there. Other counties in Texas have also included this language in their “standing orders”.

In addition to prenups, postnups, and no nups, parties can enter into “pet nups” to specifically provide for the rights and responsibilities they will each have in regard to their pet in the event they are no longer living under the same roof.

With society’s changing attitude that pets are not property but family, this is an emerging area of family law and other states, including Texas, may follow Alaska’s lead in this area.

Today, in the case of In The Interest of PS, A Child, the Fort Worth Court of Appeals provided an answer to that question. In this case, a child was born as a result of a sperm donation to the mother from a male friend. However, the donation was not made through a licensed physician but directly to the mother who successfully inseminated herself with the donation.

Initially, mother and her friend agreed that he would be part of the child’s life, but when mother’s position on that changed, he sought to have the parent-child relationship legally established between him and the child. The mother maintained he could not be legally established as a parent because he was a “donor” per Texas Family Code §160.102(6) which is defined as an individual who provides sperm to a licensed physician for use in assisted reproduction. Texas Family Code §160.702 provides that a donor is not a parent of a child conceived as a result of assisted reproduction.

The court held that in this case that the definition of “donor” was not met as the donation was not made through a licensed physician as required under the family code. The trial court’s order establishing the parent-child relationship with the father was affirmed, including naming him joint managing conservator with the mother, awarding him possession periods with the child, and ordering that he pay child support.

Medical advances and evolving social attitudes have opened new avenues as to how children can be conceived; allowing people the opportunity to fulfill their dream of having a child when they might not otherwise have been able to do so. However, this case highlights the importance of fully understanding the status of the participants under Texas law before choosing a course of action to make that dream come true.

Everything! September 9th is being recognized as The Day of Civility and Professionalism by the Dallas Bar Association with a series of events. For more information, click here.

What is civility? As discussed in the link, it is nothing more than professional courtesy, respectful demeanor, or simply good manners. Things we should all do in our daily interactions, but also things which we all need to be reminded of from time to time.

In family law, this duty of civility to opposing counsel can sometimes be misunderstood by clients. Family law matters by their nature are intensely personal to those involved as they deal with the disruption of personal relationships. Understandably, clients may be experiencing a variety of feelings toward the other party such as anger, disappointment, and betrayal. Sometimes these feelings spill over to anyone associated with the other party, including his attorney, resulting in an “us” and “them” mindset.

So if the client’s attorney says a cordial hello or exchanges pleasantries with opposing counsel at the courthouse or a deposition, the client may perceive that if his attorney is being nice to one of “them,” then he is not one of “us.” From there, they may jump to the conclusion that ‘my lawyer isn’t really fighting for me because the only way my attorney can be truly advocating for me is if he has adopted all of my feelings toward the other party and his attorney and acts them out in the course of the case.’

Nothing could be further from the truth! As family law attorneys, we certainly empathize with the emotions that our clients are feeling, but in order to be effective advocates for them, we must remain objective in our analysis of the facts and the law. That is why doctors don’t operate on their own family members, for example. Having an emotional investment in a situation can cloud a person’s professional judgment. So if your attorney greets opposing counsel with a cheerful hello, remember it doesn’t mean they aren’t doing their job for you—but instead, that they are doing it in a professional manner.