When it comes to being able to perform a certain action on behalf of another person, the term capacity is used quite commonly in our society. Most of the time that we use the word capacity we do so with the thought that someone, usually in a position of authority, is going to be able to do something to help another person because of their occupation, rank, or even title. For example, in their capacity as ordained ministers, the local pastor married two people last weekend. That minister acted in their capacity as a minister to legally marry two people.
When we talk about capacity in the context of a legal case, the meaning is usually more concrete. The capacity of a person’s capacity to perform some sort of criminal act we usually look to the age, education, position, and experience of the person. The capacity of a young child to perform an act would most certainly not be the same as an adult. Young children lack the capacity for critical thought sufficient to commit many crimes. For that same reason, children are not often tried as minors in the context of a criminal case.
When we shift our discussion over to the civil side of legal cases, we are more concerned with whether a person can make decisions for themselves from a legal standpoint. It is not a given that every adult can care for themselves and make decisions for themselves from an intellectual standpoint. This could be due to an addiction, an injury that led to brain issues or even an in-patient stay at a psychiatric hospital. Whatever the situation may be, you need to be aware of what it means to have your or another person’s legal capacity challenged.
This is such an important consideration in the world of Texas family law because parents make decisions for their children every single day. Children are not capable of making decisions for themselves from a legal standpoint. Even older children who are mature beyond their years cannot enter contracts or do any of the things that we as adults take for granted on an everyday basis. Therefore, children need an adult, usually a parent, to be able to make decisions for their best interests. Indeed, it is presumed that parents act in the best interests of their child when decisions for him or her.
How will a family court decide on legal capacity?
A person has the legal capacity to make decisions for themselves and their children until they no longer do. This may sound silly, but it reflects the presumption that a person has the legal capacity to make decisions for themselves until a court takes that capability away from him or her. When we see a family member make decisions that are not good for themselves, we may question their capacity, intelligence, and judgment but that alone does not void their legal capacity to act as an adult. That is a much more complicated process. A person who makes bad decisions may be fully capable of doing so.
What are we looking at when it comes to legal capacity?
When it comes to determining legal capacity, a court would be interested in several different factors. The first area that a court would likely be interested in is whether the person in question can understand a situation and the different options available to him or her. In a family law case, this is especially important given the sheer number of options that are likely available to a person. Just think about how many options may be available when it comes to deciding how to structure a possession schedule for your child. With so many options, circumstances, and situations to run through during negotiations, it is important that your co-parent can intelligently consider their options and make sound decisions for the well-being of your child. If nothing else, their ability to negotiate with a clear mind can make a huge difference in your family law case. Do not underestimate just how hard a person can make negotiations if he or she has a mental handicap of some sort.
You and your co-parent or spouse also need to be able to understand the factual material that is relevant in each situation. For example, if you and your co-parent disagree on a situation on a situation involving your child the only way that the two of you are ever going to be able to see eye to eye potentially is to be able to agree on what the facts are and then discuss how to mold those facts into a circumstance that works well for your child. If you and your co-parent cannot agree on even the basics of what you are discussing in the case then you are going to be in for a long and difficult child custody case, most likely.
Consequences have actions. This is something that we talk to our children about every day of the week and twice on Sundays. The point that we are trying to address with our kids is that they need to think long and hard about their decisions and what impact those decisions can have on them all now and into the future. While it may feel good to do or say something in your child custody or divorce case, the good feelings associated with your decision may be fleeting. Rarely does the right decision ever feel good on a visceral level. Rather, there is an intellectual benefit to making the right decision that goes far beyond some jolt of energy that you get when you reject a settlement offer even though you have been told that the negotiation process ends after that settlement offer is weighed and a decision is made.
Some people get involved in a family case precisely because they struggle at making those kinds of executive decisions. When we talk about making decisions it is important to point out that learning to make good decisions consistently for the first time in your life during a family law case is not realistic. Hopefully, you have been practicing making good decisions over a long period before the case began. This means that you will be ready to go when it comes to handling the barrage of difficult decisions that will come your way during a case. Legal capacity means that you need to be able to see your decisions through to the end before you make them. Otherwise, you are just jumping from one subject to another without a plan in mind or a plan to be intentional on behalf of your children.
Finally, a person who can make decisions for themselves can communicate those decisions to other people. That does not mean that you need to be ready to give speeches or be someone that you are not. Rather, you need to be able to consider your options, consider your decisions and then go from there to make choices that serve your children first and foremost. Anything short of that is a betrayal of the family law process and can set you up for child custody orders that do not satisfy anyone involved.
Guardianships for people who are not able to make decisions for themselves
If a person in your family law case is determined to be unable to make decisions for themselves then the judge will have some options to lay down and walk through with the both of you. First, a person with a mental disability may be able to have a guardian appointed to the case to communicate ideas and provide updates. Ultimately, the court would decide whether you can meet all the requirements we just finished talking about a moment ago. If not, then you not only should plan on having a guardian appointed to represent your interests in the divorce or child custody case but should be aware that your possession of the children and conservatorship issues will likely be impacted by your inability to make decisions for yourself.
The bottom line is that legal capacity may not be an issue only in your divorce or child custody case. Rather, you need to be aware that the question of capacity may remain with you even after the family law case has come to an end. Another consideration for you to look at is the fact that it is not easy to decide in your case. Medications, alcohol, and other substances may be impacting your or your opposing party’s ability to make sound decisions for yourself and your children.
Is there a way to tell when a person may not have legal capacity?
Decisions that are harmful to your co-parent and your children are tell-tale signs of a lack of capacity. Make no mistake- all of us can make bad decisions from time to time. However, here are some signs for you to look for in your family law case when it comes to determining whether your opposing party cannot continue to make decisions for themselves and your children in your family law case.
First, if your co-parent or opposing party makes decisions despite being overly confused as to the details of the case then this is probably a good sign that he or cannot make decisions for themselves. If your co-parent cannot grasp the concept of child support even though in the prior year, in that case, your co-parent acted just fine and understood how child support is calculated and what child support means for your child's well-being. Even if this is something that may be a misunderstanding it is worth bringing it up to your attorney and then possibly the judge. The judge can put the capacity of your co-parent at the center of the case to determine if he or she can continue without guardianship being initiated.
A family law case can be a time when a person's emotions and self-control are put to the test. For one, the circumstances of a family law case are such that you cannot control everything going on around you. There is relatively little that you can control if we are being honest with ourselves. With that said, it is difficult to be able to keep a firm grasp on our reality while also managing the case. Many people tend to lose their grip on self-control for periods in a family law case. However, what you should be looking for is when your opposing party completely loses track of him or herself and becomes an unrecognizable person.
Has your opposing party missed hearing or mediation dates? Do they frequently ignore phone calls or text messages regarding pick-up/drop-off times for your child? Are the outbursts towards you, their attorney, or one of your children becoming more regular and concerning? These are the types of situations you should be keeping an eye out for. Yes, there is very little that you can do to help keep these situations to a minimum. However, nobody is saying that your spouse or co-parent is your responsibility. For the sake of your case, your children, and your property you need to be able to identify characteristics of a person who may no longer have the legal capacity to enter into a family law case and make good decisions for themselves.
It is not easy to go through a family law case. The things you may have heard about family cases could be a small percentage of what you experience yourself. That you have anyone in your life that you can trust for their opinion on matters related to your family law case is exceptional. Many people who enter a family law case have no perspective at all other than what they have read on blog posts like this one. For you to have someone in your life who has gone through a family law case is something remarkable. You can and should keep that person close to you if they are being healthy with their comments and opinions, and this person can act as a support system for you and your family.
What many people do not have to go through in a family law case is determining if your opposing party is not capable of making decisions for themselves and their children during a case. In truth, it is not likely that your spouse or co-parent will lose their legal capacity to make decisions within the family law case. While it is true that family law cases can push people to the brink of sanity, it is not true that people are institutionalized or turned into raving lunatics as a result of a case. While it may feel like this is true at certain points most people can maintain a steady grip on sanity despite the circumstances associated with their case.
With that said, you can bear in mind the information contained in today's blog post if for no other reason than to help keep your self in check even while the world around you are becoming more and more hectic and less stable. A divorce or child custody case is a time of transition for everyone involved. Do not be surprised if you, your co-parent/spouse, or your children react in ways to the case that you did not anticipate. Having some grace for those around you while working to ensure that you are doing everything you can to be fair is a good recipe for getting through the family law case with your goals, and sanity, intact.
Your best defense against an opposing party taking over your case or disrupting the proceedings due to an unsteady grip on reality is to have an experienced family law attorney by your side. An attorney can help reign in an opposing party who is seemingly out of control. No, the attorney won’t do something like you would see in a movie as far as behavior is concerned, but an opposing lawyer may be interested to hear the perspective of an attorney when it comes to their client’s behavior. An experienced family law attorney can identify signs of diminished capacity and can then bring that to the attention of the court. Remember that we are talking about a person during all of this. While your case and your children are the most important thing to you now, ultimately a person on the other side of the case may be struggling with their mental health. You can be a part of the process that protects yourself and your children while helping to identify signs and symptoms of deteriorating mental health.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family's circumstances may be impacted by the filing of a divorce or child custody case.