Mediation and Its Impact on Your Texas Child Custody Case

In recent years, courts in southeast Texas have increasingly mandated that parties must attend at least one mediation session (and likely more) before presenting their case in front of a judge during a trial. This trend aligns with the growing recognition of mediation as a primary alternative for resolving contested child custody cases. However, if you believe mediation would not be appropriate or effective in your situation, you can explore options such as filing a motion to waive mediation in Texas. This motion requests that the court exempt you from the mediation requirement, providing an opportunity for your case to proceed directly to trial.

The benefits of meditation are many. You and your opposing party are able to take an active and participatory role in the process that will determine the outcome of your case. This is the case to an extent in a trial, but keep in mind you are only able to present evidence once you get in front of a judge. It is the judge who will be making the final decision in your trial.

Domestic violence and mediation in Texas

Child custody cases involving domestic violence pose significant challenges, especially in the context of mediation. As a victim of domestic violence perpetrated by the opposing party in your custody case, you may find it difficult to negotiate fully. Fear for your safety during mediation and economic dependence on the opposing party can hinder your ability to negotiate effectively.

If you haven鈥檛 worked in a decade or more, negotiating in mediation might feel daunting since your financial well-being relies on the other person paying your bills. In many southeast Texas courts, they waive the mediation requirement for parties involved in cases of family violence. Additionally, if the court doesn鈥檛 automatically waive mediation due to family violence, your objection to attending is likely to be upheld by the judge. In cases of domestic violence, the judge may take extraordinary measures to ensure your protection.

I have witnessed judges appoint third parties to attend mediation as an extension of the court to prevent further acts of violence. Many judges rely on 鈥済o-to鈥 mediators with expertise in handling cases involving domestic violence.

If you have been the victim of family violence it is ultimately up to you whether or not you will attend mediation in your case. Some people argue that the mediation process still offers benefits if you believe you can negotiate freely under the circumstances. On the other hand, you may feel constrained for multiple reasons and can choose to opt out of the mediation requirement of your court. However, this decision depends on specific facts and requires extensive discussion with your attorney before making a final choice.

International divorces- how where you鈥檙e from can impact your Texas divorce

In a city like Houston, it is not at all uncommon to encounter families who have one or both parents born internationally or at least have roots in another country. You may be in a position where you are currently living abroad while your spouse lives here in the United States. Or, you both may live here in the United States but you could own property in foreign countries. Your having had children may have created opportunities for you to visit family abroad more often. There are certainly numerous ways that your family could have international ties.

Family law in Texas becomes a tad more complicated when you consider the implications of an international divorce. The more diverse the set of facts and circumstances, the more crucial it becomes for you to be able to sort through them in a logical and clear-headed manner. In today鈥檚 blog post from the Law Office of Bryan Fagan, we will discuss this topic in greater detail.

What are the main issues relevant to an international divorce?

From my experiences, there are basically six topics that we have to discuss that relate in some way to an international divorce. The issues include jurisdiction, service of process, choice of law, discovery, property division, and enforcement of orders in child custody or divorce cases.聽While we can say with some confidence what the issues are that we need to discuss, the fact that they are all interconnected can make things more complicated.

Let鈥檚 take each of those six issues and discuss them in greater detail.

Jurisdiction- who gets to decide what?

Like most people going through a divorce, you鈥檙e probably eager to have the important questions of your case resolved. Who gets what property? How much child support will you pay? To what extent will you see your children? However, answering these questions hinges on first establishing whether Texas has jurisdiction to hear your case. If Texas lacks jurisdiction, you鈥檒l need to determine the appropriate venue.

Put plainly, jurisdiction refers to a court鈥檚 authority to make decisions and issue orders in a legal matter it鈥檚 presented with. In divorce cases, these decisions typically involve property rights and child custody. In an international divorce, you must navigate not only whether Texas has jurisdiction over your case, but also whether any U.S. state has jurisdiction.

Personal jurisdiction is the first issue that we have to tackle. Consider whether you and your spouse have strong enough ties to Texas to have your case heard there.

Then, you need to ascertain if a Texas court can handle your divorce and related issues.

Finally, it could be the case that Texas and another jurisdiction both have equally strong claims to hearing your case. In that event which court should and would your case be heard in?

From the beginning of your case until its end, these are the dominant themes and questions that you will be asking yourself. The difficult part of the process is that determining jurisdiction is not always a straightforward issue. A judge in Texas may have jurisdiction over your case while a judge in another country may have an equally strong claim to having jurisdiction. In those type of situations, you and your attorney will need to determine where your case ought to be filed from a strategic standpoint.

What country鈥檚 laws should apply to your international divorce?

Family laws differ significantly from state to state in our country so I鈥檓 sure it wouldn鈥檛 surprise you to find out that the laws of divorce can vary even more so from country to country. Once you have determined which court will actually be hearing your case the next question that needs to be asked is what set of laws will be determining the contested issues in your case.

First of all, how will you file for divorce? Do you need to assert 鈥渇ault grounds鈥 for your divorce? Texas allows you to file for divorce for any reason under the sun- including no particular reason at all. However, some foreign countries do not allow you to do so. Will you need to prove adultery or domestic violence in order to get your divorce if you have to file in an international divorce?

Next, does the law of the country that will govern your divorce require that you divide the property up in your divorce along with a 50/50 basis? Texas is a community property state that, absent other circumstances, will usually require a fairly even split of the marital assets (property that came into being during the course of your marriage).

Will prenuptial or postnuptial agreements be honored?

The concept of prenups has become fairly well known through our popular culture in the United States. Coming to an agreement with your spouse-to-be while you are still on good terms regarding certain property related issues is a good idea in the eyes of the State of Texas and property agreements like this are honored in most cases.

This may not be the case for your foreign courts. When considering where you should file your divorce and attempt to establish jurisdiction this is a question you need to ask yourself: whether or not you have come to an agreement on a premarital or post-marital agreement. If you have done so it would be unwise to file for divorce in a jurisdiction that would not honor the agreement.

Spousal maintenance: to pay or not to pay?

If you need to request spousal maintenance from your spouse at the end of your divorce, it鈥檚 essential to research which laws will be most favorable to your case. Texas only recently started permitting judges to mandate spousal maintenance payments. Typically, the court allows these payments for a short duration and under specific conditions. The length of your marriage, for instance, must be at least ten years and you must also show that you cannot provide for your minimal basic needs otherwise.

Service of process issues for international divorces

Typically, when you file for divorce in Texas you will have a constable or private process server pick up the divorce paperwork from the courthouse, drive out to your spouse鈥檚 residence or business and have him or she served personally with notice of your lawsuit having been filed. The process can take a few days but it is typically a low-key and simple transaction to complete. It is important, nonetheless, because your case cannot proceed without your first having provided notice of the lawsuit to your spouse.

There are international treaties that are in effect that govern how you can provide notice to any person who is a resident of a country that has signed on to that treaty. While the United Nations has a treaty in place that governs this subject, each member nation interprets its contents a bit differently. From personal experience, I can tell you that this step is one that can delay a case for weeks and even months. You are best served by hiring an attorney who knows how to quickly and correctly serve an opposing party with an international service of process.