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 custody and 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 tiebreaker. Determining what is in the best interest of the child you are filing your case overtakes more than just a judge’s perspective.
A 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 best interests.
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.
An 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 for 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 lawcases, 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.
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Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers
The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.
Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.