Underwood Perkins, P.C. Family Law Section Blog

Snippets, Thoughts and Tid-bits Concerning Recent Family Law Issues – This blog neither constitutes nor is intended to be legal advice. Please be advised that if you need legal counsel, you should consult an attorney regarding your individual situation.

A Day in Court

A Day at the Courthouse

             Most people who visit my office are familiar with the multitude of crime/court dramas shown on any major network television station, including but not limited to everyone’s favorite show Law & Order, and all of its progeny. After seeing such TV shows and the dramatization of a courtroom proceeding, I often hear the phrase “I want my day in Court,” meaning a client wants the judge, or a jury, to decide their case because they feel as if they are not getting most, if not everything, they want in the settlement negotiation process.

            In a family law proceeding, a client’s day in Court will often be incredibly different than the day in court the client witnessed on TV. In fact, I dare say I have never heard a client say they were happy they went to court instead of settling outside of the courtroom, especially when it comes to child custody matters.

            The first reason a day in Court is different is because actual courtroom proceedings are not nearly as dramatic as what is seen on TV. It is a rare day for there to be extreme displays of emotion, landslide victories and/or an outburst from the back row which completely changes the course of the litigation. The path to “victory” is more elusive than the client ever expected.

            Secondly, judges are not as familiar with a client’s family situation as the client and his/her attorney. Judges simply do not have the time to parse through every detail. There is no possible way for an attorney to cover every detail of every aspect of a client and their children’s lives in the short span of time allocated before the judge. While a client may see their case as a slam dunk, it is often quite the different story for the judge. The client should always bear in mind that, most of the time, the judge is meeting the parties for the first time on their day at the courthouse, and will likely only spend a few hours (maximum) with them. As such, the judge makes broad rulings at the conclusion of trial that surprise the client.

            Finally, a day in court is incredibly……let me say that again, INCREDIBLY….. expensive. A client can guesstimate that for every hour their attorney spends in court, the attorney will have to spend 2-3 hours preparing. Thus, if the attorney prepares for a full-day hearing, totaling 7-8 hours, the attorney will likely have spent 14 to 24 hours preparing, depending on the complexity of the case. Multiply those hours by your attorney’s hourly rate and you can see how incredibly expensive it is to have your day in court.  This is why many attorneys require a trial retainer if the client insists on proceeding to trial.

            Having all of this said, there are certainly situations where the other party is unreasonable, thus leaving the client no choice but to proceed to trial. In this case, a trial is often the last resort. The key thought behind proceeding to trial in this situation is that trial is the last resort and means available to reach a final resolution. As stated, it is an extremely rare occasion for a client to say they were glad they let the judge decide their issue(s). Clients are often more satisfied when they reach an agreement outside of the courthouse, because they have greater control over the outcome, and usually, this path is less expensive. 

Updates to Texas Family Code regarding Grandparent Possession/Access

Grandparents are allowed court ordered access to their grandchildren under limited circumstances.  For all cases filed prior to September 1, 2013,  Texas Family Code Sec. 153.433 permits grandparents possession of or access to his/her grandchild  if:

  1. At the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent’s parental rights terminated;
  2. The grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being; and
  3. The grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of the child:
    1. has been incarcerated in jail or prison during the three-month period preceding the filing of the petition;
    2. has been found by a court to be incompetent;
    3. is dead; or
    4. does not have actual or court-ordered possession of or access to the child.

Beginning September 1, 2013, the Texas Legislature has eliminated subsections 153.433(3)(a), (b), (c) and (d), meaning grandparents no longer have to prove those elements when requesting possession of or access to their grandchild.

This change allows for a greater number of grandparents to request the Court order possession of and access to their grandchild(ren) when a situation between the child’s biological parents and grandparents renders mutually-agreed possession of or access to the child unworkable. While this change makes it somewhat easier for grandparents to petition the Court for possession of and access to their grandchild, the grandparents must still prove “by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being.” (emphasis added).

Do I have to report child abuse or neglect?

http://www.mercurynews.com/breaking-news/ci_21934463/san-jose-principal-convicted-failing-report-child-abuse

Clients often ask about reporting to CPS (formally known as “Texas Department of Family and Protective Services”) when they suspect a child might be or have been abused and/or neglected. As seen in the referenced article, many states have specific laws about who does and does not have a duty to report child abuse and/or neglect when suspected and about what happens if such abuse/neglect is not reported.

Pursuant to Tex. Fam. Code Sec. 261.101, a “professional” who has cause to believe a child has been or may be abused or neglected has a duty to report such abuse/neglect to the Texas Department of Family and Protective Services. Subsection (b) of Section 261.101 defines a “professional” as “an individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children. The term includes teachers, nurses, doctors, daycare employees, employees of a clinic or health care facility that provides reproductive services, juvenile probation offices, and juvenile detention or correctional officers.”

Furthermore, Section 261.101 imposes an additional requirement on professionals who have a duty report. The professional must report the suspected child abuse and/or neglect within the 48th hour after the hour the professional first suspects the abuse/neglect AND may not delegate to or rely on another person to make the report.

For non-professionals, Section 261.101(a) states, “A person having cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report…”

The penalty for failing to report suspected child abuse and/or neglect is a Class A misdemeanor, “except that the offense is a state jail felony if it is shown on the trial of the offense that the child was a person with mental retardation who resided in a state supported living center, the ICF-MR component of the  Rio Grande State Center, or a facility licensed under Chapter 252, Health and Safety Code, AND the actor knew that the child had suffered serious bodily injury as a result of the abuse or neglect.” Tex. Fam. Code Sec. 261.109(b) (emphasis added).

Because of the specific Texas Family Code provisions applicable to reporting child abuse and/or neglect, if a person suspects a child is being abused or neglected, it is best to report such abuse/neglect to the appropriate authorities. The person reporting abuse and/or neglect remains anonymous and may not be discriminated against, suspended or terminated from their employment for reporting such abuse. See Tex. Fam. Code Secs. 261.110; 261.201. Note the Texas Department of Family and Protective Services must investigate all reports of child abuse and/or neglect, thus a report should only be filed if the person believes in good faith that a child is actually being abuse and/or neglected. Persons making false reports of child abuse and/or neglect are subject to both criminal and civil penalties. See Tex. Fam. Code Sec. 261.107.

For more information about reporting child abuse and/or neglect, see http://www.dfps.state.tx.us/Contact_Us/report_abuse.asp.