If you are a parent, grandparent, uncle, aunt or cousin of a child and
want to be able to head to the courthouse nearest to you and fight for
conservatorship then you ought to know what you are getting into. The fact is that even
the best of intentions can result in an outcome that is not exactly what
you set out to accomplish. Before we begin with our discussion, let me
share with you the story of two former clients and their fight to win
conservatorship of their two grandchildren.
These grandparents live in Northeast Texas and are about the nicest people
that you would ever want to meet. They came into our office to discuss
a situation involving their two teenaged grandchildren. They described
how their son, the father of the two grandchildren, was in prison. The
children’s mother, not a fan of either grandparent, had been accused
of a crime in connection with the one that her husband had committed.
She too was destined for prison once a trial commenced.
Caught in the middle of all this were our clients’ grandchildren.
They came with photos of themselves and their grandchildren as well as
one of the strongest cases I could think of to win conservatorship of
the kids. Unfortunately, I had to explain to them that at this time their
chances of winning conservatorship of the kids may not be that strong
considering the mother had not let the grandparents see their grandchildren
in months. This was not what our clients wanted to hear.
However, I did explain that filing for visitation with their grandchildren
and then attempting to negotiate with mother about that could open the
door to further explanation of the conservatorship idea down the road
once the relationships were reestablished. At mediation we settled upon monthly
visitation- which was much more than they had been given. There was at least now
a court order that mandated contact and visitation.
Flash forward a few months and the mother did end up getting sentenced
to a fairly long prison sentence as a result of having committed her crime.
Prior to beginning her prison sentence, she agreed with the grandparents
to give them primary conservatorship over the children. Our clients contacted
us to have our attorneys draw up the paperwork and submit it to the court.
They could not have been happier.
Why mention this story to you all? The simple fact is that our clients
understood what they were getting in to prior to even filing their petition
in the first case. They spoke to us, did research and were comfortable
with their chances of success. This is a good lesson for any of you who
have children in your own lives with whom you share a bond and want to
fight your own fight to win conservatorship.
Disputes over conservatorship? Expect these steps in a SAPCR case
If you are involved in a child custody case in which conservatorship is
at issue you can expect that the court will need outside assistance in
playing tie breaker. Determining what is in the best interest of the child
you are filing your case over takes more than just a judge’s perspective.
social study is when a court orders an investigation into the circumstances and home
life of the parents or other party to the SAPCR, as well as the child.
A social worker typically runs the social study and conducts interviews
of the child, you and any other party to the case. A synopsis of their
investigation and recommendations will be submitted to the court upon
the conclusion of the investigation. Their opinion on what living situation
is in the best interests of the child as well as a prospective visitation
schedule is typically outlined in the report to the judge.
Ad Litems and Amicus Attorneys
When start to throw around terms like “ad litem” and “amicus”
it is probably time to slow down in order to explain what those terms mean. An
Amicus attorney is an attorney that the judge in your case will appoint in order to represent
the child’s interests. You may be thinking at this point that you’re
the parent of the child- don’t you have the child’s best interests
at heart? On some level the answer to your question is an emphatic, yes.
On another, your interests in your SAPCR case may diverge somewhat from
that of your child. As a result, an amicus attorney will investigate the
circumstances and facts of your case to determine what is in your child’s
The Amicus attorney can make arguments to the judge in hearings and other
proceedings, just as your attorney would. The amicus lawyer will interview
people and parties relevant to your case just as the social worker will
in a social study.
Attorney Ad Litem functions as a representative appointed by the judge to represent the
desires of your child, where appropriate. The ad litem represents your
child just as your attorney represents you, so the rules of attorney-client
privilege apply. In many ways the Ad Litem attorney serves a similar capacity
as the Amicus attorney. One way that these two attorneys are similar is
that the attorney ad litem is able to make arguments in court proceedings
just as any other attorney is able to.
Prohibitions on “adult activities”
If you plan to file a SAPCR in an effort to win conservatorship rights
over a child prepare to have the court control your behavior to a certain
extent. For instance, if you make allegations about the child’s
other parent that he or she is using and abusing illegal drugs you may
be able to win a ruling from the judge to have that person drug tested.
The flip side of this is that the
drug testing will almost assuredly be made joint and mutual- meaning that if he or
she is drug tested then you also will be drug tested. Costs of the testing
will be split according to the income of you and the other party. Once
the results of the testing come back the judge will decide how to proceed
with additional, random tests if that is necessary in their opinion.
Another adult activity that you may be temporarily barred from is having
an adult with whom you are not related stay overnight with you during
the pendency of your case. This means that from 6:00 p.m. to 6:00 a.m.
there cannot be an unrelated adult in your home while your child is in
your possession. The stability and well being of your child is at stake
in your case and the judge would want to limit the outside persons brought
into his or her life if an order like this were to be made.
When does your child get to “choose” where he or she lives?
One of the most common things a confident parent will tell me upon our
initial discussions about their case is that the case should be an “easy”
one as our client is sure that their little boy or girl would tell the
judge that their desire is to live with our client. While a child can
confer with the judge about their preference on where he or she wants
to reside primarily, there is more to this than merely knocking on the
judge’s door with the child.
The law in Texas is that a child over the age of twelve shall be able to
confer with the judge in their parents’ SAPCR case on where he or
she wants to reside primarily if a request is made to the court, or upon
the motion of the judge him or herself. This is seen as an advantage for
the parent that the child chooses but is not issue determinative.
The fact remains that no matter how long or seemingly mature a child is,
he or she is prone to changing his or her mind with some frequency. A
judge understands this and while the child’s concerns would be listened
to, it is hardly a “slam dunk” if the child picks one parent
over the other. You should be aware that putting your child in the middle
of your case can be emotionally harmful to the child and both you and
the other parent, in some circumstances.
Another issue to discuss in regard to the judge
conferring with your child on their preference as to where he or she wants to live
primarily is that the judge is not a social worker or therapist. The judge
is not going to pry into all corners of his or her life or look for tidbits
of knowledge about you or the other parent. Judges keep these meetings
quick and to the point and will usually ask questions about the home life
in each of your homes and make sure he or she is doing ok in school. That’s
about it. Don’t expect the judge’s mind to be blown wide open
after meeting with your child. This simply does not happen all that often.
Visitation, Possession and Access- Tomorrow’s blog post topics
Head back here tomorrow to learn more about Texas
family law cases, specifically Visitation, Possession and Access. In the meantime,
if you have questions about anything you read today please
contact the attorneys with the
Law Office of Bryan Fagan. One of our licensed family law attorneys would be happy to work with
you to set up a time to meet with you for a free of charge consultation
where your questions can be answered.