Grandparent Rights in Williamson County

There are many misconceptions about grandparent rights and many alternatives available to non-parent relatives in child custody cases. The available options depend on the type of request, and the manner and time the child custody case has been filed.

Grandparent Rights to Conservatorship of Children

We will discuss circumstances where non-parent relatives (in this case specifically grandparents) may seek some form of rights to the children including:

  • Conservatorship,
  • Possession, access, and visitation

There are two avenues for a non-parent relatives seeking to obtain some form of conservatorship of the children. The Texas Family code contains a general standing statute as well as standing requirements that specifically deal with non-parent relatives. For the purposes of this article, I am going to focus on grandparent’s child custody rights.

Managing Conservatorship

Grandparent Rights - grandfatherManaging Conservatorship refers to a designation upon a person that gives that specific person rights to make decisions for the child. Generally, managing conservatorship refers to custody as non-lawyers would understand the term.

However, it is not the case in every situation. As discussed above, a grandparent may seek managing conservatorship of a grand-child by original suit for intervention or to intervene into an already existing case if one or more of the situations listed below exist.

Situations for Grandparent Rights

The grandparent has had actual care, control and possession of the grandchild for at least six months ending not more than 90 days preceding the date of filing the lawsuit. The 90 day time limit is an important limiting factor on this type of intervention. If you are intending to file a lawsuit as a non-parent relative or grandparent, then you need to contact an experienced child custody lawyer that has specific experience with interventions.

In addition to original standing under the Texas Family code, there are other options to file an original petition. Grandparents and other non-parent relatives of the child, related within the third degree of consanguinity, may file an original petition. The relative that files the petition will have to prove that the order is necessary. Reasons to prove would be present circumstances that would significantly impair the child’s physical health or emotional development (or if both parents consent to the intervention by a non-parent relative related within the third degree of consanguinity).

If any of the above situations exist then there may be a case for the grandparent to seek custody or visitation of the grandchild.

Grandparent Rights As Stated in the Texas Family Code

If the grandparent or other non-parent relative as defined above does not have original standing to intervene, as defined above, they must rely on another provision in the Texas Family Code. However, the case law interpreting this statute is contradictory and unclear.

The statute from the Texas Family Code states:

“An original suit requesting possessory conservatorship may not be filed by a grandparent or other person. However, the court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this subchapter if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child’s physical health or emotional development.”

As stated above, the problem with this statute is that it is ambiguous and unclear. The statute creates two groups of people that “may intervene” in a pending child custody suit. The grandparents are one of these two groups of people. The phrase “substantial past contact” is ambiguous. However, the courts do not even agree whether the statute refers to the grandparents or only to “other persons.”

Grandparent Rights - holding handsThe next requirement under the above statute, is the grandparent or other person must prove that “the appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child’s physical health or emotional development.”

One would think that this requirement is black or white. However, the courts have disagreed on this requirement as well. The difficulty appears to be in applying the law to situations where the child has resided with a non-parent for most of the child’s life. The issue that makes the matter difficult for the courts to come to a consensus is overcoming the parental presumption.

The Texas Supreme Court has a general rule that a non-parent must offer evidence of specific acts or omissions by the parent(s) that have or will cause harm to the child. The issue as stated above where the child has never lived with the parent creates a problem in situations where there is only potential harm, and the parent has not specifically engaged in wrongful conduct.

More Situations About Grandparent Rights

This article is not addressing situations where one of the biological or adoptive parents has not had their rights terminated; and the grandparent requesting access to the grandchild can show that denial of access to the grandchild would significantly impair the grandchild’s physical health or emotional development. Also, that the grandparents son or daughter is incarcerated in jail or prison for the three month period prior to the filing of the lawsuit or deceased or found by a court to be incompetent.

The law regarding grandparent rights for child custody is very complicated.  If you are a grandparent and need advice, contact a lawyer to discuss your options. This article is not exhaustive as to the law regarding grandparent rights for child custody. As discussed above, the law is very fact specific. Talking to an experienced child custody lawyer is vital. Do not rely on this article to make your decision regarding attempting to intervene into an existing child custody case or to file an original petition. Family lawyers experienced with grandparent’s rights need to be contacted quickly. Timing in this situation may be significant.

Consult With an Attorney

If you have questions about grandparent’s rights in Williamson County, call the Round Rock Law Office of Clifford Swayze at (512) 335-5245.

We serve Williamson County, and Austin, Texas: Cedar Park, Round Rock, Leander, Georgetown, Liberty Hill, Hutto, Taylor, Killeen, Temple, Coppers Cove.

The following zip codes are served:
75409, 78608, 78611, 78613, 78615, 75032, 78621, 78620, 97116, 78665, 78626, 78633, 78628, 78627, 78634, 78642, 78641, 78646, 78645, 79836, 78653, 78660, 76511, 78664, 78663, 78669, 76526, 78674, 76527, 78673, 76530, 64093, 77327, 76537, 78681, 78947, 78704, 76543, 78266, 76857, 76549, 78717, 76567, 89801, 78726, 76573, 76577, 78728, 78727, 76574, 78730, 77853, 78729, 76578, 78732, 78734,l 78737, 47122, 78745, 78748, 78750, 77388, 78759, 78605.

Business Valuation of Store

Appraising Business Valuation upon Divorce

Business ownership may cause a divorce to be more complicated. If possible, there should be a business valuation process prior to the filing of the divorce.

It is vitally important to determine the profit a business earns. Also essential, is how to value the business as an asset to be divided upon divorce. The business interest owned by the community estate will be subject to division upon divorce.Business Valuation Ownership

Business Valuation upon Divorce

A business valuation during divorce may be simple or complex. If there are multiple owners it may be more complex. The appraisal is going to be a key step in the divorce process.

The valuation process will include meticulous review of bank statements, tax returns, and other documentation. This appraisal will help value the business interest in relation to the rest of the marital estate.

Fair Market Value and Book Value

What an appraisal is attempting to accomplish is to determine the “fair market value” of the business. The fair market value of the business should not be confused with the “book value” of the business. The fair market value of the business is the amount that would be paid in cash by a willing buyer who desires to buy, but is not required to buy; to a willing seller who desires to sell, but is under no necessity of selling.

On the other hand, the book value of a business is the value shown in the books of the business. What I mean by value shown in the books, is the total value of the assets as shown on the books and deducting the total liabilities.

I believe the fair market value of the company is the more valuable number to obtain when dividing an asset upon divorce. Specifically, the Texas Supreme Court has ruled, that the “book value is entitled to little, if any, weight in determining the value of corporate stock, and many other factors must be taken into consideration…”

Business as Community Property

As discussed above, the reason why the business valuation is important to the divorce process is that the business is subject to division upon divorcee. Texas is a community property state. What this means is that the assets obtained during the marriage will usually be community property. The designation as community property means that the property will be subject to a just and right division upon divorce.

Generally, if the business was acquired or started during the marriage and there are no enforceable agreements designating the property as separate, then, usually the business will be community property.

How to Manage Business Valuation

Business Valuation documentsWhether you wish to retain ownership of the business or ensure you are properly compensated, the first step in the process is hiring a competent business appraiser to determine the fair market value of the business. If you know that you are going to need an appraisal the follow is a non-comprehensive list of documents and information that will be helpful to the appraiser:

  • A balance sheet reflecting each quarter going back at least 5 years,
  • Income statements (profit and loss statements) going back at least 5 years,
  • The legal structure of the business,
  • Documents relating to percentage of ownership,
  • A detailed history of the business,
  • A ledger for the past couple of years,
  • Contracts, or agreements,
  • Payroll information.

Consult With an Attorney

Your business is an important asset in your marital estate. Make sure the business valuation and property division process is handled properly by choosing an experienced attorney. To learn more about how we can assist you, call 512-335-5245 to schedule a consultation.

If you have questions about the division of marital assets in Williamson County, call the Round Rock Law Office of Clifford Swayze at (512) 335-5245.

We serve Williamson County, and Austin, Texas: Cedar Park, Round Rock, Leander, Georgetown, Liberty Hill, Hutto, Taylor, Killeen, Temple, Coppers Cove.

The following zip codes are served:
75409, 78608, 78611, 78613, 78615, 75032, 78621, 78620, 97116, 78665, 78626, 78633, 78628, 78627, 78634, 78642, 78641, 78646, 78645, 79836, 78653, 78660, 76511, 78664, 78663, 78669, 76526, 78674, 76527, 78673, 76530, 64093, 77327, 76537, 78681, 78947, 78704, 76543, 78266, 76857, 76549, 78717, 76567, 89801, 78726, 76573, 76577, 78728, 78727, 76574, 78730, 77853, 78729, 76578, 78732, 78734,l 78737, 47122, 78745, 78748, 78750, 77388, 78759, 78605.

Child Custody - children playing with water

Basics of Child Custody

When dealing with child custody, it is necessary to look at the situation as a whole of what is in the child’s best interest. Sometimes, when people are dealing with a child custody case, they get so involved with the details that fail to see what is in the child’s best interest.

As an attorney, it is important to remember to focus on the basics. The Texas Family Code reminds us that:

Child Custody - children playing with chalk

“The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”

Legal Guidance for Child Custody

More than 40 years ago, the Texas Supreme Court provided lawyers, judges and parents guidance with making this decision. The court gave the legal community a list of factors in ascertaining the best interest of the child. Those factors include:

  • The desires of the child;
  • The emotional and physical needs of the child now and in the future;
  • The emotional and physical danger to the child now and in the future;
  • The parental abilities of the individuals seeking custody;
  • The programs available to assist these individuals to promote the best interest of the child;
  • The plans for the child by these individuals or by the agency seeking custody;
  • The stability of the home or proposed placement;
  • The acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
  • Any excuse for the acts or omissions of the parent.

The Supreme Court made sure to note that this list was by no means exhaustive, but does not indicate a number of considerations which either have been or would appear to be pertinent. It is important to note that desires and claims of the parents are secondary considerations. The issue is what is in the best interest of the child.

Best Interest of Child

This standard “best interest of child” is an ambiguous notion. It depends on the facts and circumstances of a particular situation. Each individual issue may be basic, but taken when looking at them together, it may create a conflict and miss focusing on the primary concern.

Temporary Orders in Child Custody

Child Custody - girl walkingThe primary consideration of the court during temporary orders is maintaining the status quo. Typically, a court will hear temporary orders soon after a case is filed. The reason for this is to establish a set of rules that the parties will follow while the case is pending.

Ultimately, the judge will make the decision on what is in the best interest of the child. It is important to remember that the temporary orders will come before the final order. Matters relating to the custody of the child can be resolved either through agreement, by the court, or jury.

Child Custody and the Status Quo

As a child custody lawyer, it is vital to remember that the court will be focusing on maintaining the status quo. If the status quo is not in your client’s best interest, then it may be better to make an agreement. One option is to delay the hearing until such time as more favorable evidence comes to light for your client.

A number of factors may get you around status quo during temporary orders. Some are: drug use, physical danger, child’s physical health, emotional development, and stability of the home.

But during temporary orders, a focus is generally on maintaining the status quo. It comes as no secret that children thrive off stability and routine. Courts do not typically interrupt that routine unless there is good cause.

The important point to remember is looking at the situation as a whole what is in the child’s best interest.

Seek Advice From Divorce or Child Custody Lawyer

If you have questions about child custody in Williamson County, call the Round Rock Law Office of Clifford Swayze at (512) 335-5245. Clifford Swayze is committed to his clients and advocating for their well-being. In addition, to helping clients with divorce and family law matters, Clifford Swayze is an experienced and skilled child custody lawyer practicing in the following communities in and around Round Rock, and Williamson County, Texas:

Cedar Park, Round Rock, Leander, Georgetown, Liberty Hill, Hutto, Taylor, Killeen, Temple, Coppers Cove and Austin.

The following zip codes are served: 75409, 78608, 78611, 78613, 78615, 75032, 78621, 78620, 97116, 78665, 78626, 78633, 78628, 78627, 78634, 78642, 78641, 78646, 78645, 79836, 78653, 78660, 76511, 78664, 78663, 78669, 76526, 78674, 76527, 78673, 76530, 64093, 77327, 76537, 78681, 78947, 78704, 76543, 78266, 76857, 76549, 78717, 76567, 89801, 78726, 76573, 76577, 78728, 78727, 76574, 78730, 77853, 78729, 76578, 78732, 78734,l 78737, 47122, 78745, 78748, 78750, 77388, 78759, 78605.

Deviating from a standard possession schedule in Williamson County, Texas

There are benefits to using the standard possession schedule. The standard possession schedule offers parents a certain amount of predictability that may reduce the need for future litigation. However, there are situations that require a customized schedule, or necessitate a customized schedule when the Texas Standard Possession Schedule is unworkable.

Child Custody, Family Violence and deviating from the standard possession schedule in Round Rock, and Williamson County Texas

The Texas Family Code has many different provisions relating to deviations from the Texas Standard Possession Order. The overriding policy consideration that controls the courts authority to render an order, is as follows:

standard posession scheduleAn argument by a lawyer, who is trying to motivate the court to deviate from the Texas Standard Possession Order, will have to emphasize the best interest of child as a primary consideration. This said, lawyers have to overcome a “rebuttable presumption” that the Standard Possession order is in the best interest of the child. The judge has a large amount of discretion to make this decision. Generally, the only way to reverse a judge’s decision on best interest of child is to show that the judge’s decision was arbitrary or unreasonable.

“The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship, and possession of, and access to the child.”

Texas’s public policy is to assure that children have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child. The Texas Family Code puts forth that the Standard Possession Order is intended to guide the court in ordering the terms and conditions for possession, access, and visitation of children by parents who are either labeled as a possessory conservator or as the minimum possession, access, and visitation for a joint managing conservator.

Specifically, the State of Texas’s public policy is to encourage frequent contact between a child and each parent for periods of possession, access, and visitation that optimize the development of a close and continuing relationship between each of the child’s parents. The standard possession order is intended to relate to children that are 3 years of age or older. The courts also prefer to keep all children in a family together.

standard posession scheduleAny time I argue that the Standard Possession Order is not in the best interest of the child, the key is to articulate to the court exactly and specifically how and why the standard possession order is not in the best interest of the child. As a lawyer arguing this point, I have to prove to the court that the standard possession order is inappropriate and that a basis exists justifying a deviation from the guidelines set forth above and stated in the Texas Family Code.

When arguing to the court that a there is a basis to deviate from the public policy, ensuring frequent and continuing contact between children and parents, it is important to rely on another public policy that a possession, access, and visitation order provide a safe, stable, and nonviolent environment for the children. Specifically, the court must include provisions in the child custody order that minimize disruption to the children’s education, daily routine, and friendships.

When handling a case in which domestic violence has been an issue, Child Custody lawyers relying on this public policy, specifically want to focus on the words “safe, stable, and nonviolent environment,” in their argument that a deviation is in the best interest of the child. It may even be more helpful when dealing with children under the age of 3, since the standard possession order does not apply to them.

The Texas Family Code, specifically states that “the court may not appoint joint managing conservators if there is credible evidence of a history or pattern of past or present child neglect, or physical or sexual abuse, by one parent directed against the other parent, a spouse, or a child. The court is also required to consider the commission of family violence in determining whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator.

The court may not allow a parent to have access to a child for whom it is shown by a preponderance of the evidence that there is a history or pattern of committing family violence during the two years preceding the date of the filing of the suit or during the pendency of the suit, unless the court:

  • Finds that awarding the parent access to the child would not endanger the child’s physical health or emotional welfare and would be in the best interest of the child; and
  • Renders a possession order that is designed to protect the safety and well-being of the child and any other person who has been a victim of family violence.

Once a lawyer has proven that a basis exists to limit or deny possession, access, or visitation of a child by one of the parents the lawyer still needs to illustrate to the court a link between the abuse or neglect and the limitation on visitation. The point being is that if the father assaulted the mother a year prior to the filing of the child custody lawsuit, and the children were not in the house at the time of the assault, then the basis for the limitation may not be present.

Which parent will get custody of your child is not a predetermined decision. Merely being a parent does not mean you can get custody of your child. You need an experienced, knowledgeable child custody lawyer to help you achieve your goals.

Joint Custody

It is a common misunderstanding that courts will order parents to have joint custody. Joint custody refers to rights and duties specifically, in Texas, called joint managing conservatorship. While the designation of joint managing conservatorship creates certain presumptions there are many situations where it is not practical to have joint custody even if no family violence is present.

Joint custody or joint managing conservatorship requires the parents to jointly agree on all issues including issues relating to the health, education, and welfare of the children. If the parents are not able to work together to make decisions regarding their child, joint custody may not be in the best interest of the child. Generally, joint custody is an option when the parents have an amicable relationship and can communicate or co-parent in an effective manner.

If the parents are not on friendly enough terms, chances are that the joint decision-making required in “joint custody” will result in more disagreements and conflict. In that case, the court will select one parent to be the sole decision maker, who will have what is referred to as “legal custody” of the child. However, there is a presumption in Texas that joint managing conservatorship ship is in the best interest of the child, therefore in order to overcome this presumption, a parent will have to show by a preponderance of the evidence that joint managing conservatorship is not in the best interest of the child.

Emergency Temporary Restraining Order

The following is a list of situations where an emergency temporary restraining order may be necessary: Do not hesitate to contact Clifford Swayze immediately if any of the following circumstances are present in your child custody case:

  • If you believe the other parent is going to relocate with your child without your permission
  • If you notice signs of abuse or neglect by the other parent
  • If there is an immediate danger to the child’s physical health or emotional development.

Consult With an Attorney

If you have questions about child custody in Williamson County, call the Round Rock Law Office of Clifford Swayze at (512) 335-5245. Clifford Swayze is committed to his clients and advocating for their well-being. In addition, to helping clients with divorce and family law matters, Clifford Swayze is an experienced and skilled child custody lawyer practicing in the following communities in and around Round Rock, and Williamson County, Texas:

Cedar Park, Round Rock, Leander, Georgetown, Liberty Hill, Hutto, Taylor, Killeen, Temple, Coppers Cove and Austin.

The following zip codes are served: 75409, 78608, 78611, 78613, 78615, 75032, 78621, 78620, 97116, 78665, 78626, 78633, 78628, 78627, 78634, 78642, 78641, 78646, 78645, 79836, 78653, 78660, 76511, 78664, 78663, 78669, 76526, 78674, 76527, 78673, 76530, 64093, 77327, 76537, 78681, 78947, 78704, 76543, 78266, 76857, 76549, 78717, 76567, 89801, 78726, 76573, 76577, 78728, 78727, 76574, 78730, 77853, 78729, 76578, 78732, 78734,l 78737, 47122, 78745, 78748, 78750, 77388, 78759, 78605.

child custody modification

Child Custody Modification Process Decoded

child custody 1The process for modifying your child custody order is going to be different depending on whether the modification will be contested or uncontested. If the parties are going to come to an agreement regarding the modification they will need to agree on provisions for conservatorship, possession, access and visitation and/ or child support.

Where Custody Modification Should be Filed

The place where a modification suit should be filed is a complicated issue. The first question to answer is where was the original order? If the original order was in a state other than Texas, then you need to register the foreign order in the Texas County where the children reside.

The registration process is not to complicated, but should only be done after a consultation with an experienced child custody lawyer. If the original child custody order was rendered within Texas then the case should be filed in that county with continuing exclusive jurisdiction. However, the key to both cases is where the children have resided for the 6 months preceding the filing of the modification.

If the previous order was rendered in Travis County, but the children have resided in Williamson County for 6 months or longer, the petition should be filed in Travis County concurrently with a motion to transfer the case to Williamson County. There are a multitude of reasons why a child custody case should be heard in the county where the children reside. The most important reason being that the majority of the witnesses to the child’s best interest are likely located near the place where the child resides. This includes doctors, teachers, therapist, and other fact witnesses.

Petitioning the Court for Custody

A child custody petition is going to be a more complex document than an original petition affecting the parent-child relationship or an original divorce petition. The first step will be to evaluate and determine the requirements for modifying the original order.

For instance, if a person wants to file a modification of a previous order within one year, there are specific requirements that have to be stated in the petition to modify the order. If modifying who has the exclusive right to determine the primary residence of the child — within one year of the previous order or mediated settlement agreement — an affidavit must be attached. The attached affidavit must contain, along with supporting facts, at least one of the following allegations:

  1. The child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development;
  2. The person with exclusive rights to designate the primary residence of the child is the person seeking or consenting to the modification, and the modification is in the best interest of the child; or
  3. That the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least six months, and the modification is in the best interest of the child.

Steps in a Contested Modification of Custody or Visitation

Once a party has filed the petition to modify the parent-child relationship the next step is to decide whether it is in your best interest to have a temporary orders hearing, temporary restraining order filed, or to move toward a final hearing. In a contested modification — of child custody, possession, access, and visitation or child support — the person seeking the modification will first have to convince the court that it’s in the best interest of the child. Once the party convinces the court the modification is in the best interest of the child, the next step is to show the court that circumstances have materially and substantially changed, or the child of 12 years or older, has told the judge he or she wants to reside primarily with a particular parent.

Material and Substantial Change

The Texas Legislature has made it clear that “the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.” As stated above, once the court has found that the modification is in the best interest of the child the court will examine whether a change is a material and substantial change. To determine whether a change is material and substantial will require the court to intensively examine the facts of a particular case, or that some other provision of the family code specifically enumerates that the facts of this case constitute material and substantial change.

One example of a situation where the Texas Family Code specifically states that a given set of facts is material and substantial is where one party has been convicted of an offense involving family violence. The Texas Family Code specifically states that “The conviction, or an order deferring adjudication, of a person who is a possessory conservator or a sole or joint managing conservator for an offense involving family violence is a material and substantial change of circumstances sufficient to justify a temporary order and modification of an existing court order or portion of a decree that provides for the appointment of a conservator or that sets the terms and conditions of conservatorship or for the possession of or access to a child…”.

The Child Custody Modification Order

The judge has a wide degree of discretion in cases dealing with child custody and visitation. It is important to discuss your case with an experienced child custody lawyer who has specific experience dealing with child custody modifications. The lawyer will need to advise you, gather evidence, draft pleadings, and present your case to the court in a manner that illustrates to the court the material and substantial change and how this modification is necessary and in the child’s best interest. If the court determines that the suit for modification is filed frivolously or is designed to harass a party, the court shall tax attorney’s fees as costs against the offending party.

Consult With an Attorney

If you have questions about child custody modification in Williamson County, call the Round Rock Law Office of Clifford Swayze at (512) 335-5245. We serve Cedar Park, Round Rock, Leander, Georgetown, Liberty Hill, Hutto, Taylor and Austin.

The following zip codes are served: 75409, 78608, 78611, 78613, 78615, 75032, 78621, 78620, 97116, 78665, 78626, 78633, 78628, 78627, 78634, 78642, 78641, 78646, 78645, 79836, 78653, 78660, 76511, 78664, 78663, 78669, 76526, 78674, 76527, 78673, 76530, 64093, 77327, 76537, 78681, 78947, 78704, 76543, 78266, 76857, 76549, 78717, 76567, 89801, 78726, 76573, 76577, 78728, 78727, 76574, 78730, 77853, 78729, 76578, 78732, 78734,l 78737, 47122, 78745, 78748, 78750, 77388, 78759, 78605.

US divorce laws

US Divorce Laws: Can You File for Divorce in Texas?

divorce in texasSometimes when a husband and wife begin to argue, the foundation that keeps their relationship together crumbles and the parties separate. As these marriages fail spouses may return to live with family, while their partners stay at the marital residence. US divorce laws might cause you to wonder: can you file for divorce in Texas?

When parties decide to actually divorce where do they file? The movement from the marital state to another state by one or more of the parties may create multiple jurisdictional issues that may need to be resolved.

US Divorce Laws Examined

In order for the court to render orders the parties are required to adhere to, the court is required to have jurisdiction over the parties.

Prior to going into “personal jurisdiction” or jurisdiction over the parties it is important to examine jurisdiction in a broader sense.

Subject Matter Jurisdiction

Subject matter jurisdiction refers to the court having jurisdiction over the nature of the case and the type of relief requested by the party: specifically, the ability of the court to order a person to conduct themselves in a certain manner, or the status of things. To put it a different way, the court either does, or does not, have jurisdiction to hear an issue. This issue is based entirely on the presence or absence of a particular factor or issue.

If the external issue is not present, then there is a jurisdictional defect. This might create a situation where the court has no power to hear the case. If the court issues an order where the court lacks “subject matter” jurisdiction then the order is void.

Personal Jurisdiction

The second type of Jurisdiction is personal jurisdiction, which refers to a court’s power to bring a person or entity into its adjudicative world: specifically, the court’s ability to have power over the person or entity. Does the court have jurisdiction over the person’s personal rights?

In relation to a divorce, the court will have subject matter jurisdiction over the marriage, so long as the court has personal jurisdiction over both the petitioner and respondent to the divorce.

Can You File for Divorce in Texas?

us divorce lawsIf you have no connections to Texas, but your spouse moved to Round Rock, Texas, with your children, which state has jurisdiction or authority over the divorce?

This issue may be very complicated. Whether your spouse may file for a divorce in Texas depends on several factors:

  1. Did your spouse intend to make Texas his/her home?
  2. Has your spouse been a resident of Williamson County, Texas, for 90 days prior to filing for divorce?
  3. And was your spouse a resident of the state of Texas for at least 6 months prior to filing the divorce?

A suit for divorce may be filed in Texas by either your spouse or yourself as long as either party has been a domiciliary of Texas for six months prior to filing the divorce and was a resident of where the divorce is being filed, for at least 90 prior to being filed. The issue gets even more complicated if the party files for divorce early. The case may have to be abated until the proper amount of time has elapsed. The spouse would then be required to file an amended petition for divorce, which would create a new date for the filing of the divorce.

divorce in texasIf your wife moved to Texas with the intent to live there and make it her permanent home then she may satisfy the domiciliary requirement. Also, if your wife has a physical address in a Texas county with a good faith intent to remain, and make that county her home, then she may satisfy the residency requirement for filing a divorce as well. If these requirements are met then your divorce may be attained in Texas.

With that settled, the issue of personal jurisdiction arises as to the non-resident spouse.

If your spouse moved to Texas, and you have never lived here, then the court cannot exercise personal jurisdiction over you based on Texas being the location of your last marital residence. However, that is not the end of the calculation. The court may also be able to exercise personal jurisdiction over you if you have availed yourself to the power of the Texas Court system by making “minimal contacts” with the State of Texas.

If you have no other connection to the State of Texas, other than your spouse moving to Texas, then that relocation alone does not support Texas courts having jurisdiction over issues such as dividing marital property or spousal maintenance.

Your spouse may file for divorce in the State of Texas and the court may grant your spouse’s request for divorce even if the court lacks personal jurisdiction to impose an obligation on you or divide your marital assets.

Depending on the fact pattern, multiple states may have the authority to hear your divorce. The United States Supreme Court appears to recognize adjudications of status as an exception to the requirement of minimal contacts discussed above.

Consult With an Attorney

As you can see, US divorce laws can be a complicated matter. If you have questions about divorce in Williamson County, call the Round Rock Law Office of Clifford Swayze at (512) 335-5245. We serve Cedar Park, Round Rock, Leander, Georgetown, Liberty Hill, Hutto, Taylor and Austin.

The following zip codes are served: 75409, 78608, 78611, 78613, 78615, 75032, 78621, 78620, 97116, 78665, 78626, 78633, 78628, 78627, 78634, 78642, 78641, 78646, 78645, 79836, 78653, 78660, 76511, 78664, 78663, 78669, 76526, 78674, 76527, 78673, 76530, 64093, 77327, 76537, 78681, 78947, 78704, 76543, 78266, 76857, 76549, 78717, 76567, 89801, 78726, 76573, 76577, 78728, 78727, 76574, 78730, 77853, 78729, 76578, 78732, 78734,l 78737, 47122, 78745, 78748, 78750, 77388, 78759, 78605.

Name change of a child

Name Change of a Child

Do I need to notify the biological father of my child if I want to change my child’s name?

The simple answer is yes. The Texas Family code requires that a “parent” of the child, whose rights have not been terminated, must be served with citation. Typically, Williamson County Family Attorneys will file a petition for change of a name for a child. The other parent will be served; then, a hearing will be set to let the judge make a decision.  However, if the other parent is in agreement, or at the very least not opposed to the name change, then an uncontested hearing on the matter may be accomplished without his presence.

name change of a child 2Lawyers in Texas are required to file a petition for a name change of a child containing all of the required information set forth in the Texas Family Code.

The first requirement is that the “petition of the name change of the child” must be verified. This means that the petition requires a declaration under oath, or upon penalty of perjury, that a statement or pleading is true, located at the end of the pleading.

The petition for name change of the child must also contain the present full name of the child and the place of residence of the child. This requirement is straightforward. The state of Texas wants to make sure that we know who’s name the state is changing, and to ensure that the court hearing the matter has the jurisdiction to render a ruling on the case. If you are living in Round Rock, Texas, located in Williamson County, Texas, you cannot file a lawsuit in Killeen, Texas, located in Bell County, Texas. That court would not have authority to hear the case.

The next requirement is the reason the person is requesting a name change and whether the child is subject to the continuing jurisdiction of a court (are there any previous child custody or child support cases for the child), and whether the child is required to register under the Texas Sexual Offender program.

Who must be notified about the name change of a child?

Now to get to the issue of whether you need to tell the biological father that you are attempting to change child’s name … Under section 45.003 of the Texas Family Code the following persons are entitled (meaning you have to serve these people): 1. A parent of the child whose rights have not been terminated; 2. Any managing conservator of the child; and 3. Any Guardian of the child. These people have to be served with a citation.

The biological father of the child would be considered a parent whose rights have not been terminated. Therefore, you need to have him served.

It is important to remember that when filing a lawsuit that involves a child where there are no previous orders, undesired consequences may ensue. Anytime a lawsuit is filed you should consult with an attorney. Child Custody lawyers have experience dealing with these issues on a regular basis. If you file a lawsuit and the other party decides they want custody, conservatorship, visitation, or child support, then you may be the recipient of a counter petition requesting such matters be heard by the court.

Consult With an Attorney

If you have any questions about the name change of a child, call the Round Rock Law Office of Clifford Swayze at (512) 335-5245. We serve communities in Williamson County, including Cedar Park, Round Rock, Leander, Georgetown, Liberty Hill, Hutto, Taylor and Austin.

The following zip codes are served: 75409, 78608, 78611, 78613, 78615, 75032, 78621, 78620, 97116, 78665, 78626, 78633, 78628, 78627, 78634, 78642, 78641, 78646, 78645, 79836, 78653, 78660, 76511, 78664, 78663, 78669, 76526, 78674, 76527, 78673, 76530, 64093, 77327, 76537, 78681, 78947, 78704, 76543, 78266, 76857, 76549, 78717, 76567, 89801, 78726, 76573, 76577, 78728, 78727, 76574, 78730, 77853, 78729, 76578, 78732, 78734,l 78737, 47122, 78745, 78748, 78750, 77388, 78759, 78605.

Williamson County Attorney

Social Media Effects on Divorce and Child Custody Cases

Social media: A source of marital conflict and evidence in child custody and divorce lawsuits.

Social media may help you make new friends, communicate/connect with old friends and family, network, or communicate with people with similar interests. Social media use may also contribute to divorce, and social media posts can also provide important evidence during child custody hearings, divorce proceedings, enforcement actions and protective order hearings.

social media divorce child custodyDuring a divorce or child custody case evidence can be compelled from multiple sources. In recent years, evidence gained from social media outlets such as Facebook have had a significant impact on legal proceedings.

Evidence gained from social media may be persuasive in showing the judge that:

  • An extramarital affair has occurred,
  • That a party has spent community property on the affair,
  • That a romantic partner has been brought around the children,
  • That a party to the divorce has been engaging in activity that may endanger the physical health or emotional development of the child.

Social media can have complex effects on a divorce proceeding or child custody case. The negative or harmful activity on social media that caused your divorce may be used as a paper trail to cause a negative or harmful effect on your divorce proceeding. The evidence gained from social media may reveal information about the parents, lifestyle or ability to care for the child that may influence the court during a hearing. When preparing for a divorce you must keep these effects in mind.

Talk to a lawyer before commencing a divorce or child custody case

What evidence will influence the final outcome of your divorce or child custody case? Sometimes the answer to this question can be complex. Social media may provide the court with more information than you want anyone to know.

What information, relevant to you your child custody or divorce, may be obtained from social media?

social media child custody case divorceSocial media can be used to show a parent’s state of mind. Is there a large quantity of pictures showing alcohol consumption, pro drug articles, or a large amount of partying? The lifestyle choices that a person chooses to post on a social media account can show that a person is not putting their child first. Perception of the evidence is the issue.

Social media may be used to document a person with romantic partners that may be used as proof of adultery during the marriage. The evidence may show that you were at a particular place at a particular time. Were you supposed to be with your children at a particular time? Yes. A picture gleaned from a social media account with a time-date stamp — along with longitude and latitude of your precise location — may persuade a court that you were not where you were supposed to be.

The information a person posts can be used as evidence of their actions, spending or income, to track where you have been. This evidence may be used during a heated custody battle or divorce proceeding.

Social media may be used to prove that you have violated court orders

In Williamson County, Texas, lawyers generally will obtain restraining orders to maintain the status quo, to preserve and protect property, or simply to attempt to cause people to be congenial to each other during a divorce or child custody case. Social media posts, messages, and email may be used to persuade the court that a person was violating the restraining order. Social media outlets such as Facebook store all the activity and information that has been posted or communicated on your account.

Changing your privacy settings will not keep the court from viewing this information. The opposing party during a divorce or child custody case may compel you to download your entire Facebook, or other social media account, and transfer it to their lawyer during a divorce or child custody case.

While social media can be a great resource for your relationships with friends, family and co-workers, one should consider the above information to minimize social media’s influence on your divorce, child custody case or marriage.

How to safely use social media during your divorce or child custody case

Remember the old saying that less is more. What I mean by this statement is that when communicating on social media, consider your audience before you communicate. Pretend that the post, text or email is being given directly to the judge before you press enter, post or send.

Do not use social media:

  • as your counselor,
  • to share personal information,
  • to communicate with romantic partners.

Remember that the people on your social media account are not your close personal friends. You cannot trust them with your personal information, opinions, and feelings. Absolutely resist the temptation to use social media as your support system during your divorce or child custody case. Complaints about your ex-romantic partner, spouse, or children should never be posted on a social media site.

Written communication, texts, emails, pictures, and social media provide some of the strongest evidence in child custody or divorce proceedings.

Seek advice from divorce or child custody lawyer

Evidence used during divorce and child custody proceedings may be complex with many different effects on your case. To fully prepare for a divorce or child custody case, seek the advice of an attorney. Round Rock Lawyers may be able to offer advice on relevant laws, practices and other issues that may ultimately impact your case.

If you have any questions about divorce or child custody call the Round Rock Law Office of Clifford Swayze at (512) 335-5245. We serve communities in Williamson County, including Cedar Park, Round Rock, Leander, Georgetown, Liberty Hill, Hutto, Taylor and Austin.

The following zip codes are served: 75409, 78608, 78611, 78613, 78615, 75032, 78621, 78620, 97116, 78665, 78626, 78633, 78628, 78627, 78634, 78642, 78641, 78646, 78645, 79836, 78653, 78660, 76511, 78664, 78663, 78669, 76526, 78674, 76527, 78673, 76530, 64093, 77327, 76537, 78681, 78947, 78704, 76543, 78266, 76857, 76549, 78717, 76567, 89801, 78726, 76573, 76577, 78728, 78727, 76574, 78730, 77853, 78729, 76578, 78732, 78734,l 78737, 47122, 78745, 78748, 78750, 77388, 78759, 78605.

protective order

Answers to Common Protective Order Questions

protective order, Williamson County, TexasWhat is a protective order? How does a protective order work? What can it do or not do? When does a protective order work and when does it not work? Lastly, who can request a protective order?

As an Attorney that has an office located in Williamson County, Texas, I have heard my fair share of answers to the above questions from people in various roles within our community. Lawyers, judges, police officers and average citizens have misconceptions about protective orders.

A protective order is a piece of paper. In and of itself it cannot protect a victim from family violence. However, a violation of a protective order does have criminal consequences. A protective order can also be an effective instrument to de-escalate situations where there is a pattern of violence.  

Below you’ll find answers to the most common protective order questions I receive in my Round Rock family law practice.

Who can obtain a protective order?

The vast majority of “family violence” cases are male on female violence. However, a considerable amount of “family violence cases are female on male, male on male, or even female on female violence.

The family code defines “family violence” as an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself; abuse by a member of a family or household toward a child of the family or household; or dating violence. If you are the victim of family violence, and the violence is likely to occur in the future, then you can obtain a protective order.

Will a protective order help me gain an advantage in my divorce or child custody fight?

If your intention is to gain an advantage in your divorce or child custody dispute then you should know that a protective order is not a substitute for a divorce or child custody order. If you or your child have been a victim of family violence you should also seek a divorce and child custody order, modify the existing child custody order, or use another legal remedy to address the specific legal issue you are dealing with at that moment. Note that a protective order does not prevent the parties from co-parenting. A protective order can later be vacated or modified (with judicial approval), if the parties reconcile.

What is the difference between a restraining order and a protective order?

For purposes of this conversation the restraining orders and protective orders we are discussing are related to family law issues, or Texas Family code issues.

A restraining order in the context of a family law case such as a divorce or child custody case typically contains standard language filed within, or together with a petition for divorce, or suit affecting a parent-child relationship (petition in a child custody case). These temporary restraining orders (TROs), typically contain against one or both parties a laundry list of prohibitions intended to preserve property, protect the parties and maintain the status quo while the lawsuit is pending.

A typical TRO or injunction would prevent a party from harassing the other party, damaging property, hiding or secreting the children or canceling health insurance. A violation of a temporary restraining order does not in and of itself have criminal consequences. There are also no automatic ramifications for a violation of a temporary restraining order. A party must return to court with a motion for enforcement, or some sort of contempt action.

A protective order does carry criminal consequences if a party violates the order. The charge may even be a felony under certain circumstances and the prohibition language in a protective order can also be altered to fit the type of protective order being sought. The length of the order may also be altered under certain circumstances. A protective order combined with a final order in a divorce or child custody case may even create more protections for victims of family violence.

Can someone obtain a protective order if they are still in a dating relationship or married to the other person?

Yes. An adult involved in a dating relationship or married may obtain a protective order.

Can someone obtain a protective order if there is no evidence?

In order to obtain a title 4 protective order, under the family code, a judge has to make a finding that family violence has occurred and is likely to occur in the future.

Does this mean that a person who has never reported abuse to law enforcement can’t file for a protective order? No. Does this mean that if there are no witnesses that a person cannot file for a protective order? No. Does this mean that if there are no photos a person can’t file for a protective order. No. There also does not need to be scars, injuries or hospital visits. A lot of people who seek protective orders have never reported anything to the police or collected evidence. The testimony of the applicant for a protective order is sufficient to obtain a protective order.

Can someone obtain a protective order when there has not been any physical violence?

As stated above, the threat that reasonably places the member of family or household in fear of imminent physical harm, bodily injury, assault, or sexual assault is enough to establish family violence.

Consult With an Attorney

If you have any questions about protective orders, call the Round Rock Law Office of Clifford Swayze at (512) 335-5245. We serve communities in Williamson County, including Cedar Park, Round Rock, Leander, Georgetown, Liberty Hill, Hutto, Taylor and Austin.

The following zip codes are served: 75409, 78608, 78611, 78613, 78615, 75032, 78621, 78620, 97116, 78665, 78626, 78633, 78628, 78627, 78634, 78642, 78641, 78646, 78645, 79836, 78653, 78660, 76511, 78664, 78663, 78669, 76526, 78674, 76527, 78673, 76530, 64093, 77327, 76537, 78681, 78947, 78704, 76543, 78266, 76857, 76549, 78717, 76567, 89801, 78726, 76573, 76577, 78728, 78727, 76574, 78730, 77853, 78729, 76578, 78732, 78734,l 78737, 47122, 78745, 78748, 78750, 77388, 78759, 78605.

Clifford Swayze, Round Rock Divorce

Grounds for Divorce in Texas – Insupportability

Clifford Swayze, Round Rock Divorce

In the State of Texas there are two separate types of divorce: fault grounds for a divorce and no fault grounds for a divorce. The purpose of this article is to discuss no fault grounds for divorce in Texas, meaning simply that neither party has caused the divorce.

The vast majority of Texas divorces are filed as no fault divorces. However there are situations where the conduct of one spouse may have caused the divorce such as adultery, cruelty, conviction of a felony, abandonment, living apart, or confinement in a mental hospital. Each of these cases would be considered fault grounds.

Grounds for Divorce: No Fault, Insupportability

Upon the Petition of either party to a marriage, the court may grant a divorce without regard to fault. This comes into play if the marriage has become insupportable because of discord or conflict of personalities that destroy the legitimacy of the marital relationship and prevents any reasonable expectation of reconciliation.

Evidence to Support No Fault Divorce

The Court cannot grant the divorce without hearing evidence supporting the factual issues. As such, the petitioner must present to the court adequate evidence for a no fault divorce. Additionally, the respondent must be given the opportunity to acknowledge the evidence prior to the court determining these issues factual. Failure to allow the respondent to reply would violate his or her due process rights.

Even assuming there is no defense to a petition for divorce on the ground of insupportability, the petitioner is still required to establish the facts with evidence. That being said, the prima facie case — a case accepted as correct until proven otherwise — for a no fault divorce should be satisfied by the declaration of the petitioner that he or she sincerely believes that the marriage is irreparably broken. Upon such testimony, dissolution should ordinarily be granted, unless the judge detects hesitancy on the part of the petitioner regarding the possibility of saving the marriage.

Since the Texas Legislature enacted the statute for insupportability as grounds for divorce, the trial court has no discretion to deny the divorce. The point is that Texas will not force you to continue being married forever against your will.

Property Division

When deciding whether to request a no fault divorce there are a multitude of different issues to consider. Property division is a complicated area of the law. Once such issue that may arise is the ultimate division of the marital estate. The Texas Family Code puts forth that the Court shall divide the estate of the parties in a manner the court deems to be just and right. If you are attempting to be awarded a disproportionate share of the community estate, then you need to plead and prove factors that will convince the Court of this. When filing for a n0 fault divorce, this becomes exceptionally tricky, and you will need to explore different “fairness issues” with your lawyer. After presenting your case, the court may then decide to award you a larger share of the estate; however, the court is not required to take such fairness factors into consideration.

When to Consult With an Attorney

Consult with an attorney if you are dealing with a divorce or a property division case. These cases are incredibly complicated and having an experienced divorce lawyer is important. If you have any questions, call the Round Rock Law Offices of Clifford Swayze at (512) 335-5245. We serve the following communities in Williamson County, including Cedar Park, Round Rock, Leander, Georgetown, Liberty Hill, Hutto, Taylor and Austin.

The following zip codes are served: 75409, 78608, 78611, 78613, 78615, 75032, 78621, 78620, 97116, 78665, 78626, 78633, 78628, 78627, 78634, 78642, 78641, 78646, 78645, 79836, 78653, 78660, 76511, 78664, 78663, 78669, 76526, 78674, 76527, 78673, 76530, 64093, 77327, 76537, 78681, 78947, 78704, 76543, 78266, 76857, 76549, 78717, 76567, 89801, 78726, 76573, 76577, 78728, 78727, 76574, 78730, 77853, 78729, 76578, 78732, 78734,l 78737, 47122, 78745, 78748, 78750, 77388, 78759, 78605.