August 6, 2014 by Aaron Tress

Sample Voir Dire Questions and Sample Jury Charge – Custody

The McNamara Law Firm has recently tried two relocation cases representing the non-custodial parent. In these cases, the custodial parents remarried and sought to modify the geographical restriction so they could move with their children to live with their new partners. Our office relied on the latest social science to persuade the court not to lift the geographical restriction. In both relocation cases, the jury denied the custodial parent’s petition to lift the geographical restriction.

This post will be broken into two parts. The first part will discuss the latest social science regarding the geographical restriction. The second part will look at important segments of the trial process in relocation cases: voir dire and the jury charge.

Today’s Social Science

In a paper presented at a National Family Law Conference, the authors explained that the social science of a couple decades ago taught that “a child’s best interests is closely linked to the best interests of the custodial parent.” (“Relocation: Long Distance Families,” page 5.) This widespread belief resulted in many custodial parents moving to raise their children a long distance from the non-custodial parent. In contrast, the social science of today concludes that “having two parents in close proximity is better for children regardless of other factors” (Id., page 11). Texas codified this this modern approach: “The public policy of this state is to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child.” Texas law accomplishes this goal by making “joint custody” the default parenting designation and by setting and enforcing a geographical restriction against the custodial parent.

The social science of a couple decades ago is credited to Judith Wallerstein. (See her article published in Family Law Quarterly, “To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children Following Divorce.”) “Wallerstein claimed that there was no evidence that frequency of visiting or amount of time spent with the non-custodial parent over the child’s entire growing-up years was significantly related to good outcome in the child or adolescent.” Rather, “the children’s relationship with only one parent was central to their welfare.” (Richard Warshak, “Social Science and Children’s Best Interests in Relocation Cases: Burgess Revisited,” Family Law Quarterly.) The first study contradicting the Wallerstein position came from Arizona State University in a 2003 article titled “Relocation of Children After Divorce and Children’s Best Interests: New Evidence and Legal Considerations.” The study showed that college students with divorced parents living a long distance away were “significantly” disadvantaged compare to college students with divorced parents who lived near each other.

Since 2003, the research supporting a child’s need for both parents has grown. Dr. Richard Warshak, one of Bill’s favorite authorities researching family law issues, recently co-authored an amicus brief to the Supreme Court of California. Below are some of the notable conclusions Warshak and the new social science make.

At five years [the] positive contribution of the father’s role emerged with clarity. Specifically, good father-child relationships appeared linked to high self-esteem and the absence of depression in children of both sexes and at all ages. We were interested to find this significant link in both sexes up to and including those in the thirteen-to-twenty-four age group. (page 7)

* * *
It is noteworthy that the divorce appeared not to diminish the importance of the psychological link between father and child. This connection was especially obvious at the five-year mark in those children who were between nine and twelve, or entering adolescence. Children in this age group took intense pleasure in the visiting and when they were not visited they grieved. It seemed possible, in fact, that in this nine-to-twelve-year-old group the visiting father might sustain a youngster even in the care of a disorganized mother. (pages 7-8)

* * *
Aside from pleas to reunite their parents, the most pressing demand children brought to counseling was for more visiting. . . . The intense longing for greater contact persisted undiminished over many years, long after the divorce was accepted as an unalterable fact of life. (page 9)

* * *
It is not contact, per se, that is important, but rather other dimensions of involvement that go along with contact that are beneficial to children’s lives. Indeed, contact may be a mixed blessing if the contact is enough to tantalize children but not enough to satisfy. . . . Nonresidential parents who maintain parental roles (providing guidance, discipline, supervision, and educational assistance) may affect their children more profoundly than those who are limited to functioning as occasional visiting companions. (pages 15-16)

Hire an Expert

To get the above social science evidence before the jury or judge, you should hire an expert witness to educate the jury or judge about what is in the best interest of the child.

Jury Questions and Sample Jury Charge

Here is an outline of juror questions that Bill uses in relocation cases.

“Never leave a lawyer on your jury.” –Bill’s practice tip in jury selection

Here is a sample jury charge for a relocation case.

June 21, 2013 by Aaron Tress

Grandparents’ Visitation Rights in Texas

Bill McNamara presented the following paper on April 22, 2009, before the South Plains Family Law Association.

“So & So Won’t Let Me See My Grandchild”

“Can You Help Me?”

I. Introduction

Under limited circumstances, there are ways we can still help Grandparents. This paper is an attempt to explain how we can still represent Grandparents in access cases in light of Troxel. If you are representing the parent, Troxel is still your sword.

This article is divided by questions you should ask and the facts Grandma gives you.

II. Grandma Calls and wants Access

Can you help? Answer: Maybe, Let me hear more!

A. First, and foremost: Determine if Grandma meets the “old” requirements. What I mean by this is whether one of the requirements under subparagraph (3) can be met:

the Grandparent’s child has been in Jail for at least the past 3 months
the Grandparent’s child has been found incompetent
the Grandparent’s child has died
the Grandparent’s child does not have court ordered access

Then you want to make sure that both parents have not had their rights terminated! See §153.434(1)(B). If both parents’ rights have been terminated, your Grandma is probably out of luck.

However, if both parents have had their rights terminated by CPS and Grandma has NOT been given access then you need to look at §102.003(a)(12) and §102.004! In a CPS case only, you have 90 days after the termination to still try and get Grandma in the door.

B. Second, ask Grandma questions about whether the parent is a fit parent or not. And ask Grandma questions to see if she would have standing under §102.003.

Sounds like a “Fit” parent and you don’t have any facts that could give you Standing under §102.003:

Result: Grandma still falls under §153.433 and she has to overcome the biggest hurdle.

Burden: Can you prove by a preponderance of the evidence that denial of possession of or access to the child (by Grandma) would significantly impair the child’s physical health or emotional well being?

Law: You better have an expert! In July of 2008 the Ft. Worth court of appeals stated, “The mere opinion of the grandparents themselves and an interested, nonexpert witness that the grandparents should be granted access does not overcome the statutory presumption.” In re J.P.C., 261 S.W.3d 334, 340 (Tex. App.—Fort Worth 2008, no pet.).

Facts: The grandchild probably hasn’t seen an expert before Grandma calls. If Grandma has had close, loving, and/or a significant relationship with her grandkids, then I say file the access suit!

My Spin: Petition the court for temporary orders and ask the Court to appoint an expert to address the issue, but DON’T ask for “Temporary Access.” Also, you may want to ask the Court to confer with the child.

None of the cases that I have included have addressed the issue whether the appointment of an expert in a Grandparent access case offends the rationale in Troxel. You could rely on Derzapf where the trial court appointed an expert during temporary orders to advise the court whether the grandparents should have access. In re Derzapf, 219 S.W.3d 327, 328 (Tex. 2007). However, in Derzapf the Supreme Court of Texas held that only biological or adoptive grandparents, not step-grandparents, had standing to seek access.

Note: If you represent the parents you should argue that appointing an expert and subjecting your client and the kids to counseling offends Troxel.

C. Now assume these are the facts:

Parent is a fit parent, but Grandma HAS standing under §102.003.

PLEAD FOR JMC & ACCESS

Now you need to find out if there is a prior court order. If so, file a modification and argue that the parental presumption and Troxel does not apply! See In the Interest of M.P.B., 257 S.W.3d 804 (Tex. App.—Dallas 2008, no pet.); In Re C.A.M.M., 243 S.W.3d 211 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). If you are representing the parent, however, rely on In re Kelso, 266 S.W.3d 586 (Tex. App.—Fort Worth 2008, no pet.).

If Grandma has standing under §102.003 she can file an original suit or a modification. If you are filing an original suit, then the parental presumption applies but you could still argue that Grandma has standing to be named a joint managing conservator. If Grandma has a “legitimate” threat of being named a JMC, then Grandma has more leverage to negotiate an access settlement.

Grandma would most likely have standing if the grandchild lived in her house for at least six months ending not more than 90 days preceding your filing. The six months doesn’t have to be continuous and uninterrupted. It just has to be the child’s principal residence.

D. Now assume the Parent is Unfit:

The child’s present circumstances would significantly impair the child’s physical health or emotional development

Your Grandma has standing under §102.004 to ask for custody, and in the alternative Grandma can plead for access. Again, this may lead the parties to negotiate a settlement regarding access.

III. Ancillary Issues

A. I was Home Towned!

I won’t name names, but I was in a county other than Lubbock, and I was representing the mother in a Grandparent access case.

At the first hearing I successfully argued that Grandma didn’t have standing under the statue. Then the father, who was in a court ordered rehab facility, filed an enforcement against my client (with the same attorney). He couldn’t leave the facility and couldn’t visit his child at the facility.

I thought no problem, right? Wrong. The judge ordered that the father could designate anyone he wanted to exercise his periods of possession, i.e. Grandma. I wasn’t prepared for this kind of judicial discretion.

If this happens to you, I think you should rely on In re Marriage of Campbell, 06-08-00088-CV, 2009 WL 483602 (Tex. App.—Texarkana Feb. 27, 2009, no pet.).

B. Can You Get out of a Pre-Troxel Grandparent Access Order?

Maybe – See In re C.P.J. The Texarkana court of appeals seems to say you may be able to get out of the agreement in light of Troxel.

No – See In re C.P.J., 129 S.W.3d 573 (Tex. App.—Dallas 2003, pet. denied). The Dallas court of appeals says you can’t get out of it even after Troxel.

No – See Spencer v. Vaughn, 03-05-00077-CV, 2008 WL 615443 (Tex. App.—Austin Mar. 6, 2008, pet. denied). The Austin court of appeals affirmed jury decision to modify grandparent access.

C. Specific Days & Times

Lastly, an Amarillo case says if Grandma does get access, then the trial court should give Grandma specific times and days in which to exercise her access. See In re Webster, 982 S.W.2d 526 (Tex. App.—Amarillo 1998, no pet.). Note: This opinion was issued before Troxel.

D. Step Parent Adoption doesn’t keep Grandma out

See Raines v. Sugg, 930 S.W.2d 912 (Tex. App.—Fort Worth 1996, no writ).

IV. Still Can’t Get There?

Sibling Access §153.551

Sibling has to be at least 18 §102.0045

Military Deployment §153.3161

Why do Grandparents with children in the military get more rights than other Grandparents? Equal protection argument?

V. Defending the Parent?

Rely on the following cases to defend your client’s constitutional rights!

In re Derzapf, 219 S.W.3d 327 (Tex. 2007)

In re Mays-Hooper, 189 S.W.3d 777 (Tex. 2006)

In re Chambless, 257 S.W.3d 698 (Tex. 2008)

In re J.P.C., 261 S.W.3d 334 (Tex. App.—Fort Worth 2008, no pet.)

In re D.R.D., 05-06-00666-CV, 2007 WL 2258455 (Tex. App.—Dallas Aug. 8, 2007, no pet.)

In re J.R.D., 05-06-01554-CV, 2007 WL 4415879 (Tex. App.—Dallas Dec. 19, 2007, no pet.)

In re Aubin, 29 S.W.3d 199 (Tex. App.—Beaumont 2000, no pet.)

June 18, 2013 by Aaron Tress

Hearsay Exception: Child’s Testimony

Involving children in custody and visitation disputes is a dilemma for attorneys. For example, during jury selection in a recent custody case, many of the potential jurors expressed concern at seeing a young child called to the witness stand. Although the jury would make a decision that would change the child’s life, some of the potential jurors thought that the harm to the child from being scrutinized on the witness stand might be too great. As a result, neither attorney called the child to the witness stand for fear of creating bad rapport with the jury.

Attorneys have alternatives to calling the child as a witness. These include making a prerecorded videotaped testimony of the child or calling the child’s counselor as a witness.

Prerecorded Videotaped Testimony of Child

Section 104.003 of the Texas Family Code states that testimony of the child may be videotaped and later shown at trial. For our post on videotaped testimonies, see here.

Hearsay Rule

To call the child’s counselor as a witness, one must overcome a hearsay objection. According to the Texas Rules of Evidence, hearsay is “a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted in the statement.” The statement may be in writing, it may be oral, or it may be in the form of nonverbal conduct.

One common way to overcome the hearsay objection is to offer the statement for a purpose other than for the truth of the matter asserted. For example, the opposing counsel may bring up the point that the mother would tell people the father was addicted to drugs, inferring that the mother was doing so out of malice. To vindicate the mother, one may address medical records where doctors say the father ought to go to rehab. The opposing counsel will object to the medical records. However, as long as the medical records were introduced not to prove the truth of the matter asserted, but to show why the mother called the father a drug addict, the statements should enter into evidence.

Testimony of the Child’s Counselor

Excellent child counselors in Lubbock include

Section 803(4) of the Texas Rules of Evidence allows a child’s statements to enter into evidence through the child’s counselors. Like the hearsay example above, a counselor’s testimony should overcome a hearsay objection because the counselor’s words are not being used to prove the truth of the matter asserted but to describe the information the counselor relied on for treatment.

“As to the contention that Dr. Ohler’s testimony was hearsay and should not have been admitted, it is well settled that in child custody matters the trial court has a wide latitude of discretion in considering testimony and evidence, including opinion evidence of expert witnesses, which assists the court in deciding what conditions are detrimental or advantageous to the children for the purposes of deciding who should have custody of them.” Brown v. Brown, 500 S.W.2d 210, 213-14 (Tex. Civ. App.—Texarkana 1973, no writ).

Calderon v. Texas Dept. of Family & Protective Services, 03-09-00257-CV, 2010 WL 2330372 (Tex. App.—Austin June 11, 2010, no pet.) (admitting the child’s statements made during therapy that the child had seen a white powder on the table and had witnessed her parents acting “weird”).

June 3, 2013 by Aaron Tress

Jury Seating Chart Form

Lubbock County voir dire seating chart.

Check it out. If your courtroom has a similar seating arraignment, this form may work in your upcoming jury trial. Good Luck!

May 17, 2013 by Aaron Tress

Standard Possession Order

Important reading on possession and visitation is the Texas Family Code Chapter 153. Chapter 153 Subchapter F discusses the standard possession order. To understand Subchapter F, one may wish to review Subchapters A and C for concepts such as conservatorship, sole and joint custody, and right to designate the primary residence of the child.

When does the standard possession order apply?

The standard possession order applies in most cases. However, there are times when the standard possession order does not apply. For instance, in lieu of a standard possession order parents may negotiate their own parenting plan. To be enforceable, the parenting plan must be in writing and a court must find the parenting plan to be in the child’s best interest. Also, the standard possession order does not apply to children under the age of three.

Example Standard Possession Order

Here is a model Standard Possession Order. In practice, the standard possession order is not found alone but makes up a part of the divorce decree.

Generally, the non-custodial parent will not receive less visitation than the amount set out in the standard possession order. The standard possession order sets out the specifics on how a divorced couple is to deal with summer visitation, holidays, and how to proceed when the non-custodial parent lives less than or more than 100 miles away.