Saturday, February 7, 2009

Standard Visitation in Texas Divorce and Family Law Cases.

As codified in the Texas Family Code, the Texas Legislature has set out what is essentially the "recommended" visitation schedule for parents (and other conservators) in a Divorce or other family law cases (such as a Modification case, Paternity Case, or other Suit Affecting the Parent Child Relationship "SAP-CR" matter). The "Standard" Visitation Schedule is presumed to be in the best interests of the children for all children who are three (3) years of age and older. In setting specific visitation schedules, it is the policy of the State of Texas 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 divorced. Tex. Fam. Code § 153.001.

It is important to note that the Standard Visitation Schedule is what is ordered when the parents cannot "mutually" agree to work out the schedule in advance. In other words, when the parents / conservators are unable to work out an agreement, Standard Visitation is what is ordered. Standard Visitation varies depending upon how far the children live from the parent who is exercising the visitation. The dividing line is 100 miles. If you have specific questions about the visitation schedule, you should look at the exact provisions that have been ordered in your case, because they might be different from the schedule as set forth below. However, current orders for Standard Visitation generally provide as follows:

_______________________________________________________

Parents or conservators who live 100 miles (or less) from the children:

Weekend Visits – On the first, third and fifth weekends of each month from either when school lets out or 6:00 p.m. on Friday to either when school begins on Monday morning or 6:00 p.m. on Sunday, at the election of the visiting parent or conservator.

Weekday Visits – On Thursday from either 6:00 p.m. to 8:00 p.m. or on Thursday from the time school lets out to Friday morning when school begins.

Christmas Vacation – In even-numbered years from 6:00 p.m. on the day school is recessed for the holiday to 12:00 noon on December 28. In odd-numbered years from 12:00 noon on December 28 to 6:00 p.m. on the day prior to the day school resumes.

Thanksgiving – In odd-numbered years from 6:00 p.m. on the day when school lets out to 6:00 p.m. on the Sunday after Thanksgiving. (Even-numbered years go to the conservator or parent who has the right to designate the primary residence of the child).

Spring Break – In even-numbered years from 6:00 p.m. on the day when school lets out to 6:00 p.m. on the Sunday before school begins. (odd-numbered years go to the conservator or parent who has the right to designate the primary residence of the child).

Each Child’s Birthday – On the child’s birthday from 6:00 p.m. to 8:00 p.m.

Father’s or Mother’s Day – On Father’s or Mother’s day from 6:00 p.m. on the Friday prior to Father’s Day or Mother’s Day (as applicable) to 6:00 p.m. on such day.

Extended Summer Visitation – If written notice is given by April 1 – possession of the child for a total of thirty (30) days, provided that such visit must end at least seven (7) days prior to the end of summer vacation. If without written notice by April 1, possession from 6:00 p.m. July 1 to 6:00 p.m. on July 31. It should be noted that the other parent can designate one (1) weekend for possession during the summer by giving notice of the date by April 15 or upon 14 days written notice.

Parents or conservators who live greater than 100 miles from the children:
Weekend Visits – Either as provided above, or by designating one weekend per month upon 7 day’s notice (either by written or telephone notice).

Christmas Vacation – In even-numbered years from 6:00 p.m. on the day school is recessed for the holiday to 12:00 noon on December 28. In odd-numbered years from 12:00 noon on December 28 to 6:00 p.m. on the day prior to the day school resumes.

Thanksgiving – In odd-numbered years from 6:00 p.m. on the day when school lets out to 6:00 p.m. on the Sunday after Thanksgiving. (Even-numbered years go to the conservator or parent who has the right to designate the primary residence of the child).

Spring Break – Every year from 6:00 p.m. on the day when school lets out to 6:00 p.m. on the Sunday before school begins.

Each Child’s Birthday – On the child’s birthday from 6:00 p.m. to 8:00 p.m.

Father’s or Mother’s Day – On Father’s or Mother’s day from 6:00 p.m. on the Friday prior to Father’s Day or Mother’s Day (as applicable) to 6:00 p.m. on such day.

Extended Summer Visitation – If written notice is given by April 1 – possession of the child for a total of thirty (42) days, provided that such visit must end at least seven (7) days prior to the end of summer vacation. If without written notice by April 1, possession from 6:00 p.m. June 15 to 6:00 p.m. on July 27. It should be noted that the other parent can designate either one (1) weekend for possession during the summer if the visit is thirty (30) days or less, or two (2) weekends if the visit is more than thirty (30) days by giving notice of the date by April 15.

________________________________________________________________

It should be noted that under Texas Family Code § 153.315, if a weekend period of possession coincides with a school holiday during the school year (or a federal, state, or local holiday during the summer months in which school is not in session), the weekend possession ends at 6:00 p.m. on the Monday holiday or school holiday or (if applicable) will begin at 6:00 p.m. Thursday for a Friday holiday or school holiday, as applicable.

The parent or conservator may also elect (in the order at the time the Order is signed by the Judge) to have to have their periods of possession so-extended by Holiday begin at the time the child is dismissed from school.

If you have specific questions about how your Order or Divorce Decree works in any given situation, you should contact the attorney that represented you or an experienced family law attorney.

Thursday, February 5, 2009

Mediation in a Texas Divorce or Family Law Case.

Mediation is a non-binding Alternative Dispute Resolution procedure for the settlement of disputes. "Non-binding" means that you control the outcome and are not required to settle your case. Although there is a trained mediator who "facilitates" the proceedings, there is no Judge (or Arbitrator) making a decision or imposing his or her will upon you. The mediator is neutral and will remain impartial in the proceedings, meaning that they do not "sides." You retain control as to whether, and, if so, under what terms, the case settles. The matters discussed at the mediation are confidential, so you cannot generally subpoena the mediator to testify and you cannot use what one party says (or doesn't say) at the mediation against them in Court. In a typical mediation, if the parties are not able to settle their case, then the parties still have the ability to go to the Judge for a decision.

Mediation has been a very successful method for resolving disputes in divorce and other family law cases (which could include paternity cases, modifications, enforcement actions, grandparent rights cases, and child custody cases). The only proviso is that the parties (and their attorneys) must genuinely intend to put forth a good-faith effort to settle their disputes. Most mediators also do not take mediation cases when there have been allegations of domestic violence during the relationship. In most divorce and family cases, the reality is that the parties know each other very well and -- despite what is commonly said during these highly charged cases -- have the ability to resolve their disputes peacefully and fairly. The legal proceedings are no different. Additionally, when there are children involved, the parties will have to deal with one another for many years after the legal case ends. Therefore, the amicable settlement of the dispute is very important.

Another realistic observation that can be made from sucessful mediations is that the parties are much more likely to comply with a settlement that is reached by agreement, than with a Court's order that is arbitrarily imposed upon a party.

Most of the time, the mediator will begin the proceedings in one room with all of the parties (although in some highly-contentious case, the parties stay apart the entire mediation). In the joint session, the mediator will lay out the ground rules and then allow each party (or their attorneys) to make a position statement. Although each mediator may handle things slightly differently, most attorney-based mediation models then separate the parties out into different "caucus" rooms. It is at this point that the mediator will meet with each side separately to learn more about the case from the perspective of each party. Once the mediator has a relatively good grasp of the case from each side, he or she will keep going from room to room in an effort to settle or "compromise" the case. A compromise is just that -- not the ideal outcome, but something that can be lived with in an effort to settle the dispute. If an agreement cannot be reached then at some point, the mediator may declare an "impasse."

If, however, an agreement is reached, then the Texas mediator will reduce all of the agreements to writing so that there is no confusion about what deal was struck. If all of the issues in the case are dealt with at the mediation, then usually the parties will be able to obtain Judgment based upon the written settlement agreement.

Monday, February 2, 2009

The 2009 Texas Attorney General Tax Chart.

The 2009 Attorney General Tax Chart is now available for the setting of child support in Texas. It is interesting to note that the Texas Minimum Wage will change from $6.55 to $7.25 on July 24, 2009. Therefore, the minumum wage presumption used for setting child support will increase on that day.

As a result, if child support is set using the minimum wage presumption (based upon a 40 hour work week), child support would be as follows:

From January 1, 2009 to July 23, 2009:

1 Child - $202.57
2 Children - $253.22
3 Children - $303.86
4 Children - $354.51
5 Children- $405.14
6+ Children- Not Less Than $405.14

From July 24, 2009 to December 31, 2009:

1 Child - $222.56
2 Children - $278.20
3 Children - $333.84
4 Children - $389.48
5 Children - $445.12
6+ Children- Not Less Than $445.12

These amounts do not include arguments that the Obligor might have for paying a reduced amount due to actual payments of union dues and/or health care insurance for the child(ren). Also, the amounts also do not adjust for any children that outside the household upon which the order is based, for whom the Obligor may also have a duty of support. For the reduced percentages, see Texas Family Code §154.129