Children 12 and Over Have a Say in Court

Managing custody can be difficult for the child. They're faced with many circumstances to consider.
Managing custody can be difficult for the child. They’re faced with many circumstances to consider.

The Texas Family Code provides that children 12 and over can communicate directly to a judge relating to his/her preference on where they want to live.

However, the judge ultimately decides whether it is in the child’s best interest to change the primary residence of the child based on his/her preference.

A number of factors have been found in Texas courts to not be in the best interest to change the residence of the child, despite an expressed preference:

  1. Child gets into fight with custodial parent relating to reasonable and rational rules of the home.
  2. Child has more freedom to be at home alone, go out on weekends, or be in a relationship with another person.
  3. Child wants to leave the home because they get into disagreement with a sibling.
  4. Child has alcohol or drug problem and wants to leave the home to enable continued drug use.
A number of factors have been found in Texas courts to be in the best interest to change the residence of the child, along with the expressed preference:
  1. Grades suffer and no action is taken by custodial parent.
  2. Child has been previously alienated from other non-custodial parent and would benefit from change of residence.
  3. Child has half siblings or step-siblings that the child wishes to bond with at non-custodial parent’s home.
  4. Custodial parent is not active in the school and extracurricular activities of the child.
It benefits a parent wishing to have custody of a child, 12 and over, to consult a qualified attorney to submit a written motion to the judge, along with ample reasons, specifically referenced in a motion to modify custody (with evidence) to back up why the change in primary residence is in the best interest of the child.

The Barrera Law Firm in Harlingen provides legal services to Harlingen, Brownsville, McAllen and the Rio Grande Valley. Call (956) 428-2822 for legal assistance.

More Facts About Divorce in Texas and Child Custody

Divorce can be upsetting for childrenUnder Chapter 153, of the Texas Family Code, a court may not discriminate as to who would be the better custodial parent because of gender of the parent or marital status of the parent.

Rights of Parents at All Times

Unless limited by court order, a parent has at all times some of the following rights:

(1) to receive information concerning the health, education and welfare of the child;

(2) access to medical, dental, psychological and educational records of the child;

(3) to consult with a physician, dentist or psychologist of the child;

(4) to consult with school officials concerning the child’s welfare and educational status, including school activities;

(5) to attend school activities;

(6) to be designated on the child’s records as a person to be notified in case of an emergency.

Custody Battles and What Goes On

A custody battle can be intense. Evidence and witnesses will be examined by a judge and/or jury to determine what would be in the best interest of the child or children. Nothing is held back. The court may appoint personnel to assist the court in ensuring that the case is properly mediated beforehand and the children have their own attorney to look out for their interests. This may become costly and time consuming. Therefore, a key battle is usually getting temporary orders established that designate custody, access and possession.

Interference with Child Custody

A parent may not deny access and possession of a child with the intent to deprive or violate a court order under Texas Penal Code, 25.03. If a parent does so, and does not return the child within three days of the commission, the person perpetrating the crime may be found guilty of a State Jail Felony.

Motion for Enforcement and/or Contempt

A parent may request the court make additional orders to make up periods of possession that were denied, provide monetary compensation for causing one part to expend time and money to follow court orders, and to impose jail time or probation periods for failure to follow court orders.

Call The Barrera Law Firm, PC, at 956 428 2822 to get a free consultation, in order to inform of you of what your rights are and how to get started with taking action so that you are definitely an undeniable part of your child’s life.

Six Important Suggestions for Divorcing Parents About the Start of the School Year

Many parents who are in the midst of a divorce don’t often realize how important a role education can play in the awarding of custody. That makes this week, the first week of the new school year, particularly important to such parents.

Let’s look at why.

Family court judges are tasked by the Texas Family Code to make decisions based on their assessment of what is in the “best interest of the child.”

Courts look at parental involvement in school activities

Education has a big part to play in this because when a parent is given custody by the court, they are provided a number of rights such as:

  • Receiving information from others concerning the education of the child;
  • Making decisions concerning the education of the child;
  • Gaining access to educational records of the child;
  • Consulting with school officials concerning the child’s welfare and educational status, including school activities;
  • Attending school activities.

Therefore, this means that parents who take an active and responsible role in their child’s education will be seen in a favorable light by the court in a custody dispute.

The start of the school year is very important because it provides a renewed opportunity for divorcing parents to demonstrate their involvement in their child’s education.

Actions to take to improve school involvement

We can then make the following suggestions which are relevant, not only to divorcing parents but is good advice to all parents:

1. Attend teacher-parent meetings.  Go so far as to request monthly meetings to follow your child’s educational progress and learn of any difficulties so they can be addressed.

2. Attend your child’s extracurricular school activities, if possible.

3. If your schedule does not allow for school meetings or visits, then be involved with the school through email.  Check the school’s website regularly for activities.  Email the teacher to be in touch.  There is software online that can be downloaded to assist in this.  Download it and use it.

4. Have and enforce a schedule at home that is conducive to your child’s schooling.  This means having bedtime rules, a time set aside for homework and playtime, and keeping these things regular.

5. Be active in checking over your child’s homework assignments. Don’t hesitate to look through their backpack, looking for school announcements, papers or assignments.  Contact the teacher or school should you find something that they should know or something you have questions about.  Help your child and school authorities.

6. Know your children’s friends and their parents.  Invite them to birthday parties or attend birthday parties, but meet them.  Go with your child to visit them.  It is important that you be actively interested and knowledgeable about your child’s doings and who they are in contact with.

It is important to understand about the above that the courts are not looking for harsh discipline.  They are looking for an environment that will help the child grow and develop their potential.

A parent doing the above six things in a positive way may be seen in a more favorable light by the court.


Uncontested Divorce Texas – Pros and Cons

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If divorce is going to happen, contact a good divorce attorney to help things go smoother.
A divorce in Texas may be agreed upon by both parties, as to how property will be divided and as to how custody and possession of the children will occur. Uncontested divorces can be very useful in saving thousands of dollars in attorney fees, in saving much embarrassment from the community regarding personal and private information becoming a matter of public record, and in saving time from numerous hearings and hours in the courtroom.

However, a skilled attorney should be consulted despite the existence of a verbal “agreement for an uncontested divorce” between the husband and wife because bank accounts can be hidden, assets can be squandered or wasted on a “home wrecker,” and basic parental rights that are in the best interest of the child or children can be left out. In fact, in some “agreed” divorces, the other side is deprived of thousands of dollars in retirement benefits, spousal maintenance (Texas’s interpretation of a kind of alimony) and reimbursement claims (money owed to a spouse by the other spouse).

There are many pros and cons to getting an uncontested divorce. That is why a personal consultation is really needed so that specific legal advice can be provided on a case by case situation. Never let an attorney represent both parties in a divorce because of the high probability of a conflict of interest where the attorney has to make decisions that he or she knows or should know will benefit one side and deprive another.

Custody Modifications for Children 12 and Older

Divorce can be upsetting for childrenUnder Texas law, a parent that does not have the authority to designate the primary residence of a child 12 years of age or older may file a modification of conservatorship for the purpose of reviewing whether that designation should be changed.

An attorney may prepare an application for the court to interview a child 12 years of age or older regarding child’s preference of which parent should have the exclusive right to designate the primary residence of the child. However, despite the child’s preference, it is ultimately up to the court to decide. That means that although the child may have a totally valid preference as to who they would like to live with, it is ultimately up to judge to consider a number of factors that shed light on the best interests of the child.

Below are a few tips to observe:

  1. Ensure you are up to date on child support. While this is not a mandatory requirement, it can be considered by the court.
  2. Ensure that you have a good record of following the court’s order on visitation as well as the rest of the provisions.
  3. Do not bribe or try to persuade your child to prefer to live with you primarily over the other parent.
  4. Be active in investigating how your child is doing in school and how your child is doing physically or emotionally with the intention of setting up an environment for the child that is an improvement.

A child needs two parents in their life. Parental alienation will not be tolerated by Texas courts. In fact, South Texas courts are getting tougher and tougher on this. The right thing to do is to consult an attorney well before legal action is taken to increase the probability of success.

Child Custody, Fathers and Parental Alienation

Divorce is hard on children
Divorce is hard on children
One of the biggest myths in existence today surrounding divorce and child custody cases is that mothers always get custody of the children and fathers always pay child support.

While this stereotype might have been true years ago, today the law in Texas dictates that in most cases, courts cannot give preference to mothers in terms of awarding custody. Whether you are the mother or the father your child custody case will center around the “best interest of the child” standard and courts will take into consideration whatever factors it considers relevant to that flexible standard.

Parental alienation is the act of one parent distancing the other parent from the child emotionally, physically, or both. It does not matter whether this act is “intentional” or “unintentional.” The act itself is frowned upon by Texas courts and bringing evidence forward about this can assist your case.

Divorce and child custody cases can be stressful and emotional but the Barrera Law Firm is here to help you protect your rights and your children’s well being.

Texas has slightly different wording when it comes to custody cases. The Family Code establishes two types of “custody” determinations, namely legal conservatorship and access. While both parents can share legal conservatorship, courts tend to lean toward granting one parent more possession or access to the children than the other, unless the two parents can agree ahead of time on a 50-50 split or some other mutually desirable arrangement, which will ultimately have to be approved by the court as in the best interest of the child.

Ideally the mother and father can come to an agreement around conservatorship and access to avoid a messy, drawn out legal battle. When your rights are at stake you need an experienced divorce and custody attorney on your side. The Barrera Law Firm understands the ins and outs of child custody cases and can help you plan a strategy that will protect you and your children.

Here are some of the factors that could influence the court in making a “best interest of the children” decision in your case:

  • Emotional welfare of the children (this includes emotional bonds between you and your children, affection, etc.)
  • The respective capacity of either or both parents to provide for the educational and religious upbringing of the children
  • The ability of each parent to financially support the children
  • The past stability of the home or homes
  • The permanence of the existing or proposed home or homes
  • Moral character of each parent
  • Mental and physical health of each parent
  • The home, school, and community record of the child
  • The child’s preference, especially if the child is at least 12 years old
  • Each parent’s willingness to promote a relationship between the children and the other parent
  • Domestic violence

5 Social Myths About Divorces and Child Custody Cases

Divorce is difficult
Call The Barrera Law Firm for help with a divorce.

Myth #1: I’m the father, so I’m automatically going to be the one to pay child support.
Truth: Under Texas law, the court shall not discriminate because of the gender of the parent, but instead acts in the best interest of the child, taking in multiple factors regarding the well being and care of the child.

Myth #2: I’m entitled to half of whatever money or property we have at the time of the divorce.
Truth: Under Texas law, community property does not include property already owned before the marriage, property obtained during the marriage as a gift, and any property you inherited during the marriage. Also, the court can give more than half of the community property to one of the spouses by taking into account several factors in making a just and right division of the property, including whether the other party had an affair or physically abused the other spouse.

Myth #3: I’m entitled to alimony for the rest of my life.
Truth: There is no provision for alimony in Texas. In fact, Texas law provides for spousal maintenance under specific circumstances when the marriage has lasted at least 10 years and the financial support from the other spouse only lasts for a few years.

Myth #4: I’m not getting any child support because my husband is unemployed.
Truth: Under Texas law, child support continues to accumulate even when the person obligated to pay is unemployed and non-payment will result in accrued interest and possibly jail time.

Myth #5: I’m behind on child support so I can’t do anything about it when the other parent won’t let me see my child.
Truth: Texas law provides access and possession according to court order and any time that a parent blocks access, hides the child, or prevents visitation contrary to court order, then the other person may end up being in hot water with the court.

Call now for more information on what your rights are in a divorce or child custody case.

Do You Need an Attorney for an Uncontested Divorce?

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Facing divorce? Call The Barrera Law Firm for expert legal assistance.

Do you and your spouse want to avoid an expensive and long divorce?  Do you already have an agreement in place regarding the custody of your children and/or property of the marriage and you want to avoid multiple court dates?  An uncontested divorce may be the right option for you. An attorney drafts the paper work, guides you through the sometimes complex legal process, and can make the process simple and less time consuming for a reasonable fee.

What is an uncontested divorce?  

Divorces that are contested can cost more money and take up more time than you can afford. A divorce is basically an order from the court granting your divorce and deciding what’s going to happen to the property of the marriage and what the custody plan will be for the children.

An uncontested divorce is a divorce where there is no dispute as to any issue regarding child custody or property of the marriage, and both parties are willing to sign documents that an attorney proposes to a court for final approval.

How do I start my uncontested divorce?  

An attorney may usually only represent one of the parties in an uncontested divorce in case the divorce becomes contested during the 60 day waiting period to avoid a conflict of an interest. The steps are as follows:

1) Come in for free consultation to receive a a flat-fee quote (includes filing fees to the county) for your uncontested divorce.

2) Client makes payment and is then interviewed about the information needed to draft the documents for the divorce.

3) An Original Petition for Divorce will be drafted, you will review it, and it will be filed with District Clerk’s Office after your approval.

4) The other spouse that we do not represent will need to sign a Waiver of Service and be given a copy of the Original Petition for Divorce to avoid being served and to release their obligation of having to go to court.

5) Both parties sign an Agreed Divorce Decree that reflects all the agreements regarding the property and children of the marriage.

6) A court date is set following the 60 days after the filing and one or both parties recites the agreement to the court and asks that it be approved.

7) The judge will decide if he/she approves the agreement and may grant the divorce based on the findings.

Why You Must Respect Court Orders in Child Custody Cases

If you are a divorced or divorcing parent and are subject to a court order relating to custody of your child or children, then you must understand there may be dire consequences for you personally if you fail to follow that order.

Court orders have the force of law

In Texas, court orders hold the force of law.

That means that violations of court orders can result in a person being found to be in contempt of court which opens the door to the possibility of either or both civil and criminal penalties. This is something you don’t want.

Civil and/or criminal penalties for disobeying

In relation to orders of custody, civil penalties may be paying for the other person’s costs, travel expenses, attorney fees as well as additional periods of possession of the child or children to make up for the deprivation of court ordered time.

Criminal penalties may include jail time. This might have to be served all at once or possibly over weekends. The jail time may also be probated and the person ordered to do community service hours and take classes as a requirement of probation.

Deon Sanders case

Look at what just happened to the wife of former NFL superstar Deon Sanders. Pilar Sanders was sentenced Tuesday to seven days in county jail on a contempt-of-court charge and lost all visitation rights to her three children. The judge found that she had violated the visitation schedule that was part of the couple’s divorce decree, that she failed to return the couple’s children when she was supposed to and took possession of them when she shouldn’t have. Ouch!

Needless to say, no parent needs the aggravation, disruption and consequences that result from violating a court order on custody.

Don’t take matters into your own hands

So if you have a problem getting a person to comply with a court order or find difficulty in complying with one, you need attorney advice on how to deal with the issue with the court. Don’t delay or find yourself in the position of violating the court order.

The Barrera Law Firm can help you right away. Call Ricardo Barrera for a free consultation at 956-428-2822.

Child Custody Modifications in Texas

child custodyChild custody in Texas has to do with the types of decision making a parent makes in reference to the interest of a child or children.

Conservatorship of the child

A parent is deemed either a sole managing conservator or a joint managing conservator.  A person who is deemed sole managing conservator retains all rights to make decisions regarding the health, education, and care of the child.  A joint managing conservator shares these duties with the other parent. The joint managing conservator with the right to designate the primary residence of the child, may establish where the child primarily lives and claim the child for tax purposes, or to gain the earned income credit, unless the decree states otherwise and/or a certain level of support is provided.  One would need to consult both a tax professional and a family law attorney to determine that conclusively.  Also, in determining which parent would have the ability to establish the primary residence, the court would look to factors surrounding the best interest of the child, which would include which parent or conservator would be better able to provide for the needs of that child and create a safe and stable primary residence for that child.

Access and Possession

The access and possession of the child has to do with visitation and the issues that surround how that will occur.  The standard possession order in the Texas Family Code presumes that the standard possession order is in the best interest of the child.  The court may take into account the age of the child as well as the distance between the parents or conservators, in order to determine which possession order would be in the best interest of the child.  At times, circumstances may call for a custom possession order to be created which may be in the best interest of the child, but is only valid with the court’s approval.

Modification or change of prior court orders

In order to modify a prior court order or divorce decree, one must show a substantial change and that this change affects the best interest of the child.  One may modify child support, conservatorship, the determination of who may select the primary residence of the child, the type of access and possession, whether a geographic restriction should be put in place, whether visits should be supervised, whether pick up and drop off should be at a neutral location, and much more.

In order to determine whether a prior court order or divorce decree should be changed or modified, it is necessary to contact a competent attorney who will understand what can be done to ensure that parental rights are fully exercised, and that there is a fair custody order in place that truly benefits the child.  Call attorney Ricardo Barrera with The Barrera Law Firm, PC, for a free consultation at 956-428-2822.