Geographic Restriction

A Texas family court has the power to impose a geographic restriction on the residence of a child when rendering a divorce, or child custody order.

What type of geographic restriction does a judge generally order?

In Williamson, Travis and surrounding counties most Judges want to impose a geographic restriction that will force the parties to live within a reasonable distance from the child based on the parenting plan ordered. Generally, the court will want the parties to reside as close to each other as possible. The more equal the parenting plan is regarding time of possession, the closer the court will want the parties to live to each other. Examples of common geographic restrictions are as follows: Williamson County, Williamson County and Counties Contiguous to Williamson County, or maybe Round Rock Independent School District. The geographic restriction may also be a certain distance from a school home or other location.

The parties may also agree to a specific geographic restriction.

Why do courts order geographic restrictions on the primary residence of the children?

For a variety of reasons, it makes sense for the court to impose a geographic restriction on the parents in a child custody case.

  1. Co-Parenting: It is easier for the parties to co-parent when both parties live near each other,
  2. Travel Time:   When parties live closer to each other it reduces the transportation burden on the parents and time travel for the child,
  3. Discourages problems: Older children may prefer to stay with the parent that lives closer to their friends, or their activities.

The court cannot order that the parties primarily live with both parties however, the parties can agree to neither parent home being the primary residence of the child so long as a geographic restriction is imposed.

What happens if a parent must relocate?

Divorce is, the gift that keeps on giving. Issues continue to arise even after the divorce has been finalized. Frequently, instability in work, career and education come with divorce and as a result so do relocations. The presumption under Texas law is that the parents should be joint managing conservators of the children. This creates a presumption that both parents should be involved in the children’s lives. The parenting plan will attempt to ensure that both parents are actively involved in the lives of their children.  Relocating is difficult task to manage. Courts typically do not want the child to move away from the other parent. The courts typically want stability for the child. This means the court would prefer the child stay at the same school rather than moving from school to school. In fact, non-custodial parents use frequent moves as a basis for material and substantial change to obtain the right to determine the primary residence of the child on a regular basis.

What should I do if I am required to relocate, but the primary residence of my child is geographically restricted?

Female hand filling custody of child form

If the parenting plan in your final decree of divorce or child custody order has a geographic restriction, and the non-custodial parent does not agree with your relocation, you will be required to file a modification lawsuit to attempt to remove the geographic restriction. Modifications are difficult, and the court is going to be focused on the best interest of the child, and not necessarily your career.  Williamson County courts and most courts in general do not generally allow on one parent to relocate with a child. The courts decision will rest on the facts, circumstances, and issues of your case. Often the court will require the moving party to cover the costs of transporting the child. This should be considered when deciding to file this lawsuit.

Consider your children and your financial situation prior to filing a lawsuit to modify the geographic restriction. This is not a decision to be taken lightly.

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.

Should domestic violence committed against men be a source of entertainment and laughter?

The national coalition against domestic violence says one in three women have experienced domestic violence during their lives. Specifically, nearly 20 people per minute suffer physical abuse do to the actions of an intimate dating partner or spouse. This equates to 10 million people per year. The numbers can be broken down even further to illustrate that 1 in 4 women and 1 and 9 men experience physical violence do to the actions of their spouse or intimate dating partner. It is eye opening to realize, 1 in 4 women and 1 and 7 men have experienced severe physical violence meaning they were strangled, burned ect…

No legitimate sources dispute that domestic violence against women is a serious problem and unequivocally an ongoing and dangerous situation problem for women all over the United States including Texas. However, violence against men does not garner the same attention. Should domestic violence against men be given equal treatment?

Domestic violence committed by men against women has a far worse result. Men that physically attack their spouse are far more likely to kill them. Perhaps its not even fair to compare the two. The issue is that men have also been victims of domestic violence. I have represented men stabbed, beaten or run over by their girlfriend or wife. I have also represented a far greater number of men that have been falsely accused of domestic violence after their significant other has assaulted them. The police are not as likely to believe that men are being abused. Men are also unlikely to report such crimes for fear of not being believed and the shame associated with making such an accusation. A lot of times, communication sent by the parties via text or email become very important in proving who is the victim. Many false allegations occur after the other party has threatened to break up, or cut off financial support of their partner.

Socially, people do not give much concern to violence against men by their wives or dating partners. To a certain degree the entertainment industry treats female on male violence as a joke. To illustrate this point look to the Muppets and “All around to Mrs. Browns.” The former depicting Kermit taking the brunt of Ms. Piggy’s assaults, and the latter having depicted a real-life domestic abuse case. The show depicted aired this segment as a comedy and gave the women an award given out on the show called “mammy of the week. Specifically, the segment had the daughter describe how her mother would assault her father with household object and on at least one occasion with a knife while the audience laughed.  These shows expose the double standard of placed on male victims of domestic violence.

The question is whether social stigma combined with shows such as the two listed above make male victims of domestic violence more vulnerable? In our society we have a stigma that surrounds male victims of domestic violence, and we have an idea of what a real man looks like and a real man is not a victim of domestic violence by his wife or girlfriend.

I had a case a few years ago where I represented a man accused of family violence. The entire family said the man was the victim and not the perpetrator. The family described a long continuous violent history by the wife. Law enforcement, the prosecution and the court did not believe the man. In a subsequent accusation that was refuted beyond a reasonable doubt, law enforcement refused to pursue charges on the wife for filing a false police report. Quoting a policy not to dissuade victims of family violence from reporting the crime. We had absolute proof that the accusation was entirely false. Still no charges.

Violence is never funny, should never be the subject of humor, and never create a social stigma. Disrespecting any group of victims hurts all victims of violence. Those people accused of domestic violence deserve the same fair and equal treatment regardless of gender. We should all be afforded our due process protections under the United States Constitution. If you are the victim of family violence you should never feel stigmatized or discouraged from reporting that criminal offense.

If you are accused of family violence, have a criminal charge, protective order or divorce or child custody case filed against you please call my office if you have any questions 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.

Do Texas Child Support Guidelines discourage equal possession time?

Studies have shown that equal possession time by parents decreases the stress on children of divorced households. Texas and other states having been moving towards child custody models that provide for a shared time of possession for the children. 

There are many different schedules that provide for equal or near equal time of possession with the children.

  1.  The Texas Standard Possession Order:   provides the non-custodial parent power to elect to have approximately 46% of the possession, access and visitation with the children. The expanded schedule gives the non-custodial parent 1st, 3rd, and 5th weekends and Thursday overnight every week during the school year, with standard holiday and summertime visitations.
  2. 5-2-2-5: provides the parents with a 50/50 time of possession, access, and visitation with the children. This schedule is the most predictable and widely used schedule by the courts in Williamson, Travis and surrounding counties. This schedule provides that one parent shall have the children on Monday and Tuesday, the other parent shall have the children on Wednesday and Thursday and the parents shall alternate weekends and holidays.  
  3. 2-2-3: provides the parents with a 50/50 time of possession, access, and visitation with the children. As under the 5-2-2-5 schedule the parents would have possession of the children on alternating weekends, however the weekly schedule would change every week. For instance;
    1. Week 1 Mom has Monday and Tuesday, Dad has Wednesday, and Thursday and Mom has the children for the weekend, and on the following weekend,
    1. Week 2 Dad has Monday and Tuesday, Mom has Wednesday, and Thursday and Dad has the weekend with the children.
  4. Weekly: provides that the parents have alternating weeks with the children.

Equal time of possession is becoming a more normal alternative for parents living in close proximity to each other. These schedules become more difficult the further the parents choose to move from each other. The other factor that hinders or reduces the willingness of parties to agree on an equal time of possession is child support. More often than not the disagreement is over money, not the time of possession.

Texas guidelines regarding child support are presumed to be in the best interest of the child if the standard possession order is implemented. If the parties agree to a 50/50 schedule the guidelines are no longer presumed to the amount of support that is in the best interest of the child.

Often when an equal time of possession schedule is implemented or agreed to by the parties the courts will order a child support based off an offset in the party’s incomes. The court will order both parties to pay child support based on what the guidline amount of child support would be if ordered. Then the party with the higher income would pay the difference.

This system creates an incentive for both parties to fight for time of possession due to manner child support will be calculated. Texas still provides that the standard possession order is in the best interest of the children. This is a rebuttable presumption meaning that if the parties have been following another schedule or some other factor is present then the court may not choose the Texas Standard Possession Order. This creates a situation where if one parent wants child support they will not agree to give the other spouse equal time because they will likely receive less child support. The current state of Texas law does discourage equal time of possession.


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.

Co-Parenting

Saying goodbye to your spouse is painful, no matter your position on whether the marriage should have continued. The storm that ensues during the divorce creates emotional highs and lows in both parties creating an environment that is difficult to navigate. The requirements of negotiating child custody agreements, parenting plans, relocating into a new residence, living on one budget all contributes to the toxic environment that develops post separation or divorce. Either party may be feeling a multitude of emotions including: fear, anger, sadness and grief. It is important to focus on your mental health immediately.

Emotions

To navigate through the storm you need to deal with your emotions and mental health. Take a minute to breath. Don’t act on impulses and consult with your attorney or therapist prior to sending a communication to your wife or husband. When it comes to communicating with people when a divorce or separation begins remember less is more.

People perceive your words in the manner they view the world. Perception is reality. If you are trying to communicate an idea, thought, or opinion to a person feeling angry, hostile, sad, or scared they may not perceive a communication in the same light as you do, when you are sending this well intentioned and thought out communication.

When it comes to communicating remember that you will need some time to adjust to this new normal. The pain of dealing with this change will at times be exhausting to everyone involved in the break-up of the relationship. This includes your kids, spouse, and friends. When communicating with anyone within the circle of your former relationship remember to avoid communicating with them about the circumstances or your divorce or separation. An additional party distorts the initial meaning of the communication further than directly speaking to your ex. Neither communication may be perfect, but combined it may damage the relationship even further.

Children

Your children will be looking to you for comfort, compassion and understanding during this time of uncertainty. Remember to provide your children with the reassurance that everything will be ok.

Allow your children to express their feelings, and remember they are entitled to be hurt, angry and sad as well. Effort should be exhausted to avoid sharing with your children the full range of the emotions you are experiencing. It is not appropriate to communicate with your child your anger, and disappointment with their mother or father. Once you are not around your children then you can allow yourself to feel the emotions that come with your divorce.

Co-Parent

If the two of you are effectively communicating then you likely would not be in the middle of a divorce, and once the divorce or separation begins this will likely break the lines of communication between the two of you even further. However, being able to communicate with the other parent to your children is important for both you and your children. What should you do in case of a high conflict separation or divorce?

Here are some strategies for co-parenting in less than ideal co-parenting relationships:

Do not use your children as a tool for revenge. It is normal to feel anger do to personal relationship with your spouse being gone. The anger directed at the other parent is felt by the child and manifests itself as denial of access to the other parent, or open hostility. To deal with this situation simply avoid the engaging in the hostility. It is easier said than done to not engage with an openly hostile person, but better to deal with the issue in court, through a guardian ad litem or therapist.

Avoid situations that cause conflict, and don’t put yourself in a position of weakness. If drop off or pick up changes are causing a conflict then just stick to the schedule in the order. If changing the schedule in anyway causes conflict then go back to the order of the court. If the other parent is using schedule changes to create conflict then do not make the requests, nor engage the other parent in such deviations. Arrive on time, and do not engage in any verbal, or written argument with the other parent.

Never communicate through the children. It is difficult to communicate with the other parent for a variety of reasons including pain, anger and sadness. It may be the most difficult situation to deal with after the break up, or divorce. Children should never be used to convey messages. This should not be done by either parent. As much as you don’t want to engage in a conversation that will lead to conflict. Do not place your child in this situation. In high conflict child custody situations sometimes parents may have to use parallel parenting as opposed to co-parenting.

In high conflict divorces or child custody situations a third party may be required to create a buffer to facilitate communication. If communication is impossible a parenting facilitator or family member may be required to facilitate healthy communication. Parenting facilitator’s should be used rarely. There is a considerable cost associated with parenting facilitators that can create an undue burden on the parents.

The overall theme with high conflict divorces and child custody situations is to reduce direct communication with the other parent. The communication should be reduced to situations where there is a problem with the children. The written parenting plan enclosed in the court’s order should deal with the details of possession, access and visitation with the children. In high conflict divorces and child custody situations the court generally will allow for a communication app that will track the communication in a format that can be easily accessed by a parenting facilitator or a judge. These apps can be used to exchange information about medical events, and extracurricular activities of the children.


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.

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.