Parental Alienation And False & Malicious Domestic Violence Allegations
Parental Alienation Syndrome (PAS) is a generally recognized platform that may result in child abuse. This occurs when a custodial parent of a child from a separated family uses deception to deliberately alienate children from their non custodial parent.
Misplaced Domestic Violence Restraining and Protective Orders are an excellent tool to advance the Alienating Parent’s malice! Misguided Protective Orders of a Court based on such false representations may remove the Accused Abuser Parent from the home, bar the Accused Abuser from seeing his/her children and give the Alienating Parent total physical custody of the children. The Accused Abuser Parent is now effectively “Guilty Until Proven Innocent”.
Once the Alienator obtains a Restraining Order through false domestic violence allegations, the Accused Abuser Parent may find it difficult to defend himself or herself against the false allegations. This sends the implied message to the children that “Daddy/Mommy” is bad or dangerous, stamped by the court.
The Accused Abuser Parent may only see his/her children in a cold and uninviting supervised visitation setting. Supervised Visitation Centers are facilities where a child is taken to meet with the Accused Abuser Parent in a third party monitored location. A third party observes the Accused Abuser Parent during their visit with their children so that the child is “protected” at all times.
Often the supervised visit is demeaning for the visiting parent in the eyes of his/her child. The impression to the child that “Daddy or Mommy” is dangerous comes across loud and clear since most children only see lock up situations on TV and these people are seriously viewed as being bad.
Many Alienating Parents use this scary situation to encourage their child not to see the Accused Abuser Parent at all. The more time a child is out of contact with the Alienated Parent the deeper the scaring and recovery period for that child.
Dr. Richard A. Gardner coined the term “Parental Alienation Syndrome” (PAS) in 1985. Dr. Gardner found that a child subjected to continual negativity and manipulation by the Custodial Parent over an extended period of time against the other parent would eventually adapt the distorted view presented. At the end of the day, what the Alienating Parent fails to understand is that his/her selfishness makes his/her child the “victim” who pays a hefty price in lost self esteem.
Unfortunately, False Domestic Violence Allegations have become more common in Divorce / Child Custody Proceedings. Most Judges usually enter a restraining or protective order for the safety of the child and in too many cases an Accused Abuser Parent is guilty until proven innocent!
Texas Spousal Maintenance Laws Expanded
In September 1, 2011, Texas House Bill 901 ( Texas HB 901 ) revised the spousal maintenance law in the Texas Family Code effective for divorce cases filed on or after September 1, 2011. The bill revised the conditions that establish eligibility for spousal maintenance, commonly referred to as alimony, and changes the factors required to be considered by a court in determining the nature, amount, duration, and manner of periodic payments for a spouse who is eligible to receive maintenance.
Eligibility for spousal maintenance still requires that the spouse seeking maintenance lacks sufficient property to provide for the spouse’s minimum reasonable needs.
The law provides potentially increased relief to spouses who have been out of the work force, are disabled, are victims of family violence or are the primary custodians of a disabled child.
Some of the major items in the Texas Spousal Support Law are:
1. The maximum amount of spousal support that courts may award increased from $2,500 to $5,000.00 per month, although it is still limited to 20 percent of the payer’s average gross monthly income.
2. The duration of spousal support in Texas is a maximum of 5, 7 or 10 years, generally depending on the length of the marriage.
3. The law clarifies if a person has primary care for a disabled child, the custodial parent may be prevented because of the child’s disability from earning sufficient income to meet the custodial parent’s minimum reasonable needs.
4. The law also clarifies a person may not be held in contempt for failing to pay spousal support which is in an agreed order and extends beyond the period of time provided under the law.
In order to receive “maintenance,” (which is the statutory term for spousal support), the spouse seeking support must lack sufficient property to provide for the spouse’s “minimum reasonable needs”, AND one of the following:
(1) The recipient must be unable to earn sufficient income to provide for his or her minimum reasonable needs because of an incapacitating mental or physical disability;
(2) The marriage lasted for 10 years or longer and the recipient lacks the ability to earn sufficient income to provide for his or her minimum reasonable needs;
(3) The recipient is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse’s minimum reasonable needs; OR
(4) The person ordered to pay support was convicted of or received deferred jurisdiction for an act of family violence during the pendency of the suit or within two years of the date the suit is filed.
The court can order maintenance to continue for:
(1) 5 years if the parties were married less than 10 years and the maintenance is awarded due to family violence;
(2) 5 years if the parties were married more than 10 years, but less than 20 years.
(3) 7 years if the parties were married more than 20 years, but less than 30 years;
(4) 10 years if the parties were married for more than 30 years.
In cases where the maintenance is awarded due to the mental or physical disability of the spouse or a child of the marriage, the court may order that the maintenance continue as long as the disability continues.
However, in all circumstances, the law provides that the Court shall order maintenance for the shortest reasonable period that allows the recipient to earn sufficient income to meet his or her reasonable needs.
What about Termination?
a. The obligation to pay future maintenance terminates on the death of either party or on the remarriage of the oblige.
b. After a hearing, the court shall order the termination of the maintenance obligation if the court finds that the obligee cohabits with another person with whom the obligee has a dating or romantic relationship in a permanent place of abode on a continuing basis.
c. Termination of the maintenance obligation does not terminate the obligation to pay any maintenance that accrued before the date of termination, whether as a result of death or remarriage
If you are contemplating dissolving your marriage and have questions concerning your financial future, seek competent legal counsel to help you determine whether you could be eligible for spousal support the provisions of the law.
Prenatal DNA Testing in Texas : Establishing Paternity Prior to Birth of a Child
Recently the news covering the custody battle between Bode Miller and his child’s biological mother Sarah McKenna became a 24-hour news cycle. According to court filings, Ms. McKenna while still pregnant moved to New York from California to attend school. Approximately a month prior to Ms. McKenna’s departure from California, Mr. Miller filed a paternity and custody suit in California State Court. Two days after the child was born, Ms. McKenna filed a custody case in New York State Court. The New York family court decided that the Ms. McKenna had “fled” California with the child in utero; and, while this was not child abduction under the UCCJEA, the Court decided the move was simply to avoid the California Court’s jurisdiction. Further, the Court decided that the prior paternity/custody suit filed in California by Mr. Miller, “trumped” the New York filing as well, giving California statutory authority to decide the custody issue. In On November 14, 2013, the New York Family Court’s decision was overturned on appeal and was remanded back to New York family court for further decision on all issues.
This case has ignited a debate over whether a mother may move an unborn child to a different jurisdiction prior to the birth of the child.
Even if you have not been proven to be the biological father of the child, in Texas, you still have legal rights that may be enforced.
Prior to the birth of the child, you may request a DNA test from the court. If the mother agrees paternity can be determined even before the baby is born. In addition, now there are non-evasive and less risky options for prenatal testing for paternity.
A purported father does have the right to establish paternity. Establishing paternity in Texas can be a process that occurs prior to the birth of the child. There are several forms of pre-natal testing available. Some methods are costly and some methods more invasive than others. In Texas, a man can establish paternity prior to the birth of a child by filing a request for adjudication of parentage and voluntary litigation. If the mother agrees to prenatal testing the Court will accept the DNA test results and make a determination on the record. However, if the mother does not agree, a Court may not force her to have invasive testing on the fetus.
A purported father has a right to a custody determination although this right cannot be determined prior to the birth of the child. In Texas, a court has jurisdiction to decide custody issues if Texas is the “home state” of the child. In the case of a child less than six months of age, “home state” means “the state in which the child lived from birth with a parent. . . .” Tex. Fam. Code Ann §152.102(7); see also Waltenburg v. Waltenburg, 270 S.W.3d 308, 315 (Tex. App.—Dallas 2008, no pet.).
Holiday Visitation with Your Children: Texas Family Code Standard Possession Order for Holidays
Now is the time to start working on your Holiday 2013 Schedule for visitation with your children during this wonderful time of year! Here is a reminder of the current Texas Family Law Code’s Standard Possession Order for the Holidays.
§ 153.314. Holiday Possession Unaffected by Distance Parents Reside Apart.
The following provisions govern possession of the child for certain specific holidays and supersede conflicting weekend or Thursday periods of possession without regard to the distance the parents reside apart. The possessory conservator and the managing conservator shall have rights of possession of the child as follows:
Texas Family Law Code’s Standard Visitation Guidelines for Christmas Break:
(1) the possessory conservator shall have possession of the child in even-numbered years beginning at 6 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and the managing conservator shall have possession for the same period in odd-numbered years;
(2) the possessory conservator shall have possession of the child in odd-numbered years beginning at noon on December 28 and ending at 6 p.m. on the day before school resumes after that vacation, and the managing conservator shall have possession for the same period in even-numbered years;
Texas Family Law Code’s Standard Visitation Guidelines for Thanksgiving:
(3) the possessory conservator shall have possession of the child in odd-numbered years, beginning at 6 p.m. on the day the child is dismissed from school before Thanksgiving and ending at 6 p.m. on the following Sunday, and the managing conservator shall have possession for the same period in even-numbered years;
Texas Family Law Code’s Standard Visitation Guidelines for Child’s Birthday:
(4) the parent not otherwise entitled under this standard order to present possession of a child on the child’s birthday shall have possession of the child beginning at 6 p.m. and ending at 8 p.m. on that day, provided that the parent picks up the child from the residence of the conservator entitled to possession and returns the child to that same place;
Texas Family Law Code’s Standard Visitation Guidelines for Father’s Day:
(5) if a conservator, the father shall have possession of the child beginning at 6 p.m. on the Friday preceding Father’s Day and ending on Father’s Day at 6 p.m., provided that, if he is not otherwise entitled under this standard order to present possession of the child, he picks up the child from the residence of the conservator entitled to possession and returns the child to that same place;
Texas Family Law Code’s Standard Visitation Guidelines for Mother’s Day:
(6) if a conservator, the mother shall have possession of the child beginning at 6 p.m. on the Friday preceding Mother’s Day and ending on Mother’s Day at 6 p.m., provided that, if she is not otherwise entitled under this standard order to present possession of the child, she picks up the child from the residence of the conservator entitled to possession and returns the child to that same place.
Texas child visitation orders may differ from the norm to accommodate family situations so you should always check your decree first! If in doubt about your holiday visitation time, contact an attorney who can help you to make sure nothing happens to affect this special season with your children. ‘Tis the Season To Be Jolly’!
Wedding Bells Ringing: Time to think about a Pre-Nuptial Agreement
You and your future spouse are now starting to plan your life together and will soon legally marry to become man and wife. Are there personal or family situations that should be legally addressed to enhance future happiness? What can make your legal transition easier?
More and more couples are signing prenuptial marriage agreements. The spouses are not just couples dealing with financial inequality or couples of great wealth. They are couples who want to put all their financial cards and related issues on the table before they walk down the aisle, often to avoid potentially great expense and prolonged painful litigation should the marriage fail.
Once you have decided to set up a Pre-Nuptial Agreement now where do you begin? You need to find knowledgeable attorneys who can help you with the preparation of the agreement. Attorneys? Yes! Both you and your fiancé need separate attorneys to make sure you both are fairly represented in this marital contract. This is a very serious agreement and should be considered a legal binding contract never taken lightly. Many couples wake up from their sweet wedding dream to find that the pre-nuptial agreement is far from what they wanted or thought it would be.
How to get started on your Pre-Nuptial Agreement?
1. You both must decide what goals you wish to accomplish in this agreement and what will make this marriage and your other responsibilities work for you. Will this agreement be confidential between the two parties involved in the agreement?
2. Will this agreement be a deal breaker between the couple, if an agreement can’t be reached? As a couple, there should be a discussion on what is acceptable for each party before the attorneys are contacted. If an agreement cannot be directly reached between a couple, can an agreement forged with the help and counsel of the attorneys?
3. A pre-nuptial agreement should reflect the needs and expectations of the future Mr. & Mrs. Make sure that both your lists are included and be willing to negotiate with your partner on what is and isn’t important to each of you. One partner can’t be the winner and the other the loser! This is a true pathway to a future divorce! When you reach a reasonable agreement, the attorneys will provide the work and legal wording to establish a binding marriage contract.
4 What about future earnings of each spouse? Most premarital agreements are set up to reduce the community estate. What is more import to the couple: salary or other income, such as stock dividends, income from a business, real estate rents, or bank interest?
5. Many couples agree to give the non-monied or lower income party a signing bonus, such as a lump sum of money for giving up their right to future earnings that, without the agreement, would go into the community fund. This is an important feature of a pre-nuptial agreement that may help both parties more comfortable with the agreement.
6. Many pre-nuptial agreement may also include an exit bonus in case of a potential contested divorce.
7. The expiration clause is another feature that appears in a number of pre-nuptial agreements. The agreement would expire after a certain term or condition was met. Examples could be an anniversary date or birth of a child or anything that is important enough to change or terminate the terms of the marital agreement. This expiration could affect property rights and the characterization of property acquired after the term or condition. When setting up a pre-nuptial agreement, it must be decided if the law at the time of execution or the law at the time of dissolution or death will control.
8. Many couples may use a financial structure of payments to the non-monied spouse in the premarital agreement that would relate to number of years married or numbers of children the parties have during the marriage. Incremental Payments are used as an incentive for increased satisfaction of marriage goals during the marriage. This can also be used as a lump sum of money previously agreed upon in the event of a divorce.
9. Many times there will be a Minimum Stand of Living Clause in the agreement. If there is little or no community property to support the party’s lifestyle, a contractual obligation of support during the marriage can be paid from the monied spouse’s separate estate. This would allow the non-monied spouse to live a very good lifestyle during the marriage by agreeing not to contest the property agreement in a divorce. Both spouses would enjoy an additional comfort level in the property agreement.
Last, but definitely not least…..
“The Poison Pill” Clause: What could this be? As an incentive to both parties, an “exit bonus “could be paid to the non-monied spouse in the case of divorce if the non-monied spouse would waive any contest of the agreement. The agreement would clearly state that if the non-monied spouse contests the validity of the agreement, he or she waives any and all rights to receive benefits under the “exit bonus” clause.
With the combination of the “exit bonus” and “poison pill” clauses there are additional incentive for both parties to abide by the terms of the agreement in the event of a divorce.
NACOL LAW FIRM P.C.
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization
