Don’t 'presume' anything if you’re still married to an old flame

Let’s say you got married to your high school sweetheart and then the union went south. You separated years ago, didn’t get a formal divorce and don’t even know where he is.

Later, you meet the man of your dreams and you find out you’re pregnant. Everything’s perfect, right?

Not really. In the state of Texas, any child conceived during a legal marriage is presumed to be the biological offspring of the male spouse.

That means, as far as the law is concerned, your long-lost spouse is a new father and not your boyfriend.

Don’t worry though. There are legal remedies for your situation and an experienced divorce and family law attorney can help.

The good news is that the presumption that the child is a product of your old marriage is “rebuttable.” That means that you can offer evidence to disprove the presumed fact. In this case, you will need to demonstrate to the Court that the child is, in fact, not the offspring of your ex-spouse.

The first step in the process is to get legally divorced. Be sure and tell your attorney about your unique situation, so he/she can add the appropriate language to the Final Decree of Divorce. The husband must sign a Waiver of Interest in the Child and an Affidavit for Voluntary Relinquishment of Parental Rights prior to finalization of the divorce. Then, the true biological dad should execute an Acknowledgment of Paternity form and file it with the state Bureau of Vital Statistics to protect his rights to the child.

What you decide to do from here is up to you. But at least you have cleared some major legal hurdles from your path. Moreover, getting these legalities straight will ensure that your child and your boyfriend, and possibly future husband, will be legally obligated and connected to his child. And the child won’t be confused as to his or her parentage.

If you have any questions, please feel free to contact me for a free consultation.

No good deed goes unpunished, especially with child custody

I see it time and again -- the informal custody arrangement that results in one parent relinquishing “temporary” physical possession of a child to the other parent. While such arrangements are often made with the best intentions, a deal like this almost always results in complications for the relinquishing parent, particularly when the parties don’t get along. Indeed, good deeds like these seldom go unpunished.

The typical scenario goes something like this: mom surrenders the child to dad in order to give her time to “get on her feet” financially, or find a permanent place to live in a new city. Mom has a rocky parenting relationship with dad but, based on dad’s promises to help out, mom lets the child go with dad on what she believes is a temporary basis. Mom even puts the arrangement in writing and dad is more than happy to sign.

Days turn to months and before mom can bat an eye, dad has maintained physical possession of the child for a period of longer than six months.

What mom doesn’t know is that she has inadvertently armed dad with the ability to mount a compelling case for change of custody.

Mom then gets served with papers seeking to modify the custody arrangement to render dad the parent with the exclusive right to determine the primary residence of the child on a permanent basis. In other words, dad wants to have “primary” custody of the child such that the child would live with him and go to school from his address. And one other thing, dad is also seeking child support from mom.

Mom now has a serious problem on her hands and, with the threat of losing custody of her child, she will almost certainly need a good lawyer. What will make this legal battle difficult for mom is the fact that the Texas Family Code provides that dad can go into court three days after serving mom the papers and seek a ruling that allows him to keep the child while his modification suit is pending. This gives dad substantial leverage and may very well provide him the upper hand when the Court makes its final decision about where the child lives going forward.

Dad will invariably allege that mom abandoned the child to him and the Court may presume this to be the case, given evidence of the voluntarily relinquishment. Ironically, this evidence may come in the form of the agreement that mom asked dad to sign with best of intentions. Mom is now forced to overcome these allegations in order to save custody of her child. The only way out of this jam for mom is to convince the Court that, despite her temporary relinquishment and the harsh allegations from dad, it remains in the child’s best interest for the child to resume living primarily with mom. Mom has placed a heavier burden of proof on herself than necessary. She will now have to look for witnesses who can testify about her parenting skills and or dad’s lack thereof. And, what’s more, she may even have to disprove any lies told by dad to enhance his leverage in his case.

While this is a tricky situation, with the right approach, mom’s case is not un-winnable. But, the headache and the risk of losing her child is certainly something she can do without. So, the best advice I can give mom is to simply avoid this type of situation altogether.

It’s been my experience that parents who roll with the punches while keeping their children by their side tend to make it through trying times and come out better for it. Barring a true crisis or emergency, always keep your child with you. You will likely find that your child is able to weather the storm right along with you and you can avoid the hassle and expense of unnecessary heartache and litigation.

What to do if Child Protective Services calls

Relationships can be complicated, especially when children are involved.

In my practice, I get frantic calls from anxious parents who have been reported to Child Protective Services by their estranged partners or others.  Unfortunately, CPS is often misused in an attempt to gain false leverage in a custody case. Sometimes, they’re used just to get revenge on partners who want out of a relationship.

This leaves CPS workers in the middle of domestic fights that cloud the truth of what is really going on in the home.  

In one situation I recently encountered, there were allegations that an estranged husband provoked an argument and then videotaped the exchange out of context to gain sympathy with CPS.  In another case, an estranged wife allegedly coached a child to imply falsely that the father was emotionally abusive.

It goes without saying how this behavior can damage children who want desperately to please their parents.

CPS workers try hard to be objective, but at the end of the day, they’re only as effective as the information they receive - which is by no means objective. 

Judges try to decide what is in the “best interest of the child” based on the CPS recommendation and the accused person’s defense/case. So, it’s imperative to get as much information about the home life and the child before the court.

There are a couple ways in which an attorney can get this information before the court. One is to provide documents related to a child’s good mental and physical health as well as educational records. Having a steady job and income can also work in the accused party’s favor as will a clean criminal record. Moreover, if a child is 12 years or older, the attorney can request that the judge interview the child in the judge’s chambers. This way, the child is not under pressure from any parents and can speak more freely.

An attorney can also discredit false information through a variety of tactics including testimony of character witnesses, expert analysis of the child, background and financial checks of opposing parent, etc.  

After hearing all the information, the judge will consider the CPS recommendations and documentation and testimony provided through the attorney before deciding what’s best for the child.

Whatever the outcome, some decisions can be appealed and revisited to update the court on changing circumstances.

The bottom line is, if CPS calls, the next call should be to an experienced family law attorney. The attorney is your best defense when child custody gets ugly and CPS is dragged into the mess.

Weighing Settlement and Litigation Options

Litigation can be a serious gamble. Settlement is almost always a substantial compromise. Both options carry their own unique risks and rewards. But how does a client know which path to take when seeking resolution of his or her dispute? Obviously, the answer will depend on the circumstances of the case, the complexities and strengths of the client's position on the issues, the extent to which the client is willing or able to spend money for a trial and numerous other intangibles. Determining whether to roll the dice at trial or enter a less-than perfect compromise agreement to avoid the expense and risk of litigation is often the single most difficult and agonizing decision a client will  have to make in the course of a lawsuit. It involves a scenario where the lawyer and client must work together to reach the right decision. But, it's not always an easy choice to swallow.

First and foremost, the client must examine the strength of his or her case on the merits. The likelihood of success at trial will govern how much leverage can be asserted in settlement negotiations. In other words, if the client has a strong, persuasive case to present at trial, the more powerful his or her position will be at the negotiating table. Coming from this position of strength enables the client to convey that he or she is not afraid to roll the dice at trial, because he or she believes they would likely win. It would take a pretty generous offer - whereby the party gets virtually everything they are requesting at trial - to draw this client away from a litigation track. That is because, under this scenario, going to trial might be the right choice, unless a settlement offer presents an opportunity to conserve resources, avoid the emotional fallout from litigation and simply dispense with the conflict once and for all with virtually no risk.

At the other extreme, there is the client with a weak case on the merits. This client must be more willing to compromise and accept a less-than-perfect outcome because he or she realizes they are less likely to prevail at trial. There may be a tendency to walk away from a compromise under these circumstances feeling dissatisfied. But, the client must temper that dissatisfaction with the recognition that he or she simply "cut their losses" and entered a compromise agreement to avoid the substantial risk of gambling with a weak case in front of the court. Even though it may be hard to accept, the reality often is that the client would have done worse at trial than he or she did by way of the compromise. Of course, the outcome is not perfect, but it is governed in large part by the strength of the client's position in the underlying case.

Most cases fall somewhere in between, such that the case presents a mixed bag of strong facts and weak or vulnerable ones. In these more common cases, there are many factors to consider. The lawyer's knowledge of the presiding judge, the skill/experience level of the opposing counsel and the likability/credibility of the client as a witness are a few factors that will weigh on the decision. Ultimately, the lawyer and client must determine the degree of risk involved in rolling the dice at trial, given the above-referenced factors. Anytime, there are weaknesses in a case, there is a corresponding risk associated with trial. The way to alleviate the risk is to settle the case before trial. However, that usually means accepting a compromise or less than desirable outcome. While this may not seem palatable to the client at first, it is the price that must be paid for avoiding the risk of trial. The key to making the right decision is striking the proper balance of risk and compromise.

I often hear it said that a good compromise agreement usually results in both parties walking away feeling a little dissatisfied. That is the nature of compromise. The only way around it is to roll the dice - and that always carries the possibility of losing everything. So, the proverbial question becomes: When should the client stick to his or her guns and when should the client strike a deal? There is no simple answer. While I am always prepared to go to trial and excel, and I always convey that confidence to the other side, I also try to remain cognizant of reality and work hard to achieve results that are best tailored to my client's individual needs. Like just about everything else, balance is the key and "winning" is a relative term.

Divorce and Other Disasters

    Divorce is a difficult event in a anyone's life. It's the loss of something primal, and to many, sacred. It's no wonder that opposing parties literally want to leave the other destitute and in emotional pain. It's unfortunate because, no matter what happened, the fact is that at some point these two people loved each other. They enjoyed a life together. In many cases, they brought children into the world together.With so many shared and big life experiences, it's hard to accept it when it is over. It's heart-breaking.

     Every day, I listen to clients rage about their soon-to-be exes. The pain is palpable. I try to keep my emotional response in check and guide the client through the legal process as efficiently as possible. That's the only thing I can do to help clients move on with their lives. The legal process of divorce is another huge life experience, but it's done alone, with the exception of an attorney.

    As a family law attorney, I've seen the good, the bad and the ugly. I try to do the best, legally maneuvering to get what the clients are after. I'm all for presenting arguments aggressively to the Court but, on a personal level, I try my best to be the calm in the  middle of the storm - to be an effective counselor, as well as a lawyer.This is the best way to not only gain a strategic advantage in Court but also assist clients with the intangible issues and dilemmas that inevitably arise amid the emotional storm of a divorce.