The title to today’s blog post may have caught some of you by surprise. Most folks don’t think that they are interviewing attorneys when they find themselves wanting to start a family law case. I get the impression that a majority of people go into the process holding their nose and wanting to get the whole thing over with. I can’t say that I blame you if you feel this way, as well. However, if you do that you are losing out on a great opportunity to not only learn more about your case but also to learn more about the people that will be representing you and advocating on your behalf.
After all, family law cases are the most personal type of legal case I can think of. The subject matter that you and your attorney will be working on is intensely private. Your marriage, your kids, your home, your finances, your problems, etc. These are all issues that are relevant to most any family law case. Your attorney will not only be learning things about you that you may only discuss with your mother and your best friend. On top of that, your attorney will be advising you on making decisions that could impact your life for decades into the future. Don’t you want to be able to find the best attorney for you and your family with everything at stake?
Let’s get you on the right track as far as learning about family law and learning about what you need to be looking for when hiring an attorney to represent you in a legal matter related to family law. Many attorneys will tell you that they are capable of representing you in a family law case. Some will even tell you about the different sorts of family law cases they have handled in the past. However, there is a difference between attorneys who have worked on family law cases and experienced family law attorneys who only practice in this field of law. You want to focus your search on the latter, and not the former.
If you have children, then issues related to custody, possession, visitation, and support are likely to be among the most important in your case. I wanted to begin today's blog post by going over some information that relates to possession that is essential for you to be aware of. Do not go into a meeting with a potential attorney of yours before you read this blog.
If you have any questions about the information that you read here, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys are available six days a week to meet with you to answer questions and go over anything related to your case that you would like.
Possession issues in a family law case
When you are talking about any issues related to your child in a family law case, know that the judge will be guided by the long-standing question of what is in the best interests of your child?
This may seem broad or vague at first glance, and in actuality it is. It is this way on purpose. The state of Texas gives a great deal of latitude to the judge in your case to make decisions and judgments. This is a great deal of power to provide to a person that doesn’t know you, your opposing party or your child at all beyond the information contained in court documents.
With that said, you need to make sure that the attorney that you are sitting down with and interviewing has sufficient knowledge to guide you and advocate on your behalf when it comes to issues related to possession of your child. Judges start with the presumption in place that it is in the best interests of your child to have continuing contact with you and your child's other parent. As such, do not expect that you will be able to get "sole custody" of your child to the exclusion of your child's other parent. I mention this because many people will tell me their goal is to to have their child never see the other parent ever, or at the very least see that parent as little as possible. This is not likely to happen.
Factors that the court will look to when determining the best interests of your child include the age, developmental stage of your child, their proven needs, your circumstances, the circumstances of your child’s other parent and anything else that is relevant to your particular case. Other than this, a judge has pretty much free reign when determining what to do for your child and what is in their best interests.
Geographic restrictions: what you need to know and why this issue is important
In many cases, whether you go to court or end up settling your case in mediation, either you or your child's other parent will be named as the primary managing conservator of your child. Along with this designation comes the right to determine the primary residence of your child. In and of itself this is a great deal of power to give to a parent. You would be able to choose the house where your child lives, determine the rules that this child will follow every week and be able to see that child almost every night of the school year.
However, just about every family law order (child custody or divorce) will have as part of the possession sections something called a geographic restriction. This is especially common in cases where you and your child's other parent are named as joint managing conservators. Since this is the default and therefore most common designation for parents to come out of a family law case with, you must know what to ask an attorney about this subject.
A certain geographic area will be designated in your final orders that spells out the area in which your child's primary residence may be located. In the alternative, a provision will be included that notes that your child's primary conservator may designate the location of your child's primary residence without regard to a geographic restriction(s). This is another way that the parent with primary custody has a leg up over the other parent even if you are both known as joint managing conservators.
If you are living in Harris County, then a common geographic restriction to be inserted into your final orders would be one where your child’s primary residence would be limited to Harris County or any of the counties that border Harris. That is a fairly large area, but it also makes sure that if you are the non-primary conservator that you will not have to spend most of your life chasing down your ex-spouse in an attempt to stay close to where your child is living.
What sort of importance is placed on the preferences of your child?
This is another issue that a lot of people seem to have questions about at the outset of family law cases. What degree of importance is placed on the wants of your child when it comes to important issues like where he is going to live? Apparent word has gotten around that if your child is of a certain age, a teenager most people seem to think, that all it takes is for that child to tell the judge where he wants to live and the case will be wrapped up after that. This is, as with most things related to the law, not entirely true or false.
The law in Texas states that if your child is at least twelve years old then all you have to do to get your child in front of the judge is to file a motion stating that you are requesting that this occur. The judge cannot overrule or deny the motion. The primary reason why a parent would want to file a motion to have their child confer with the judge is about determining which parent will have the exclusive right to determine the primary residence of him or her. A child under the age of 12 may be able to do the same thing, but the difference is that the judge does not have to grant the motion.
Here is what you need to know, however. Just because your child may have the opportunity to go before the judge and voice their opinion does not mean that he or she will get their way. Meaning, that if your child goes to speak to the judge on the issue of conservatorship that does not mean that you will be granted the right to determine the child's primary residence even if your child states his preference as such. The other factors that we talked about earlier as far as the best interests of your child will be looked to. A judge may put a lot of weight on the preference of your child or place relatively little importance on what your child wants.
The long and the short of it is that you should not assume that just because your child has told you that he wants to come to live with you that you will win your case on that subject based solely on your child's preference. First of all, the child may change his mind a few times before having the opportunity to go in front of the judge. Anyone reading this who has raised children knows this to be true. The second thing to keep in mind is that just because your child states his preference is to live with you does not mean that the judge has to go with whatever he says.
Paternity issues- what do you need to know before seeing an attorney
These are always some of the stickiest, most fact-sensitive cases that a family law attorney deals with. If you are in a position where you don't know who the father of your child is or you don't know if a child is your biological offspring then you need to pay attention to the subject matter that we are about to discuss.
The law in Texas states that a man is presumed to be the father of a child if he is married to that child’s mother and that child is born during the marriage. If the presumed father wishes to challenge paternity he can do so until the child's fourth birthday. There are a few exceptions to this rule, such as if you were prevented from filing a paternity lawsuit before this date or if you were not living with the mother during the probable time of conception. The only way to dispute a prior adjudication of parentage is with the assistance of a genetic test.
On the other hand, if you are attempting to throw your metaphorical hat into the ring as far as making an argument that you are the biological father to a child then you can bring a lawsuit to challenge paternity even after another man has been adjudicated to be the father in a prior divorce. You would need to speak to a lawyer to make sure that you have the standing necessary to bring the lawsuit, but otherwise, you should be good to move forward.
Questions about family law related issues? Contact the Law Office of Bryan Fagan
Thank you for spending part of your day with us today learning about some of these basic, important questions related to Texas family law. I hope that you have learned a few things and that you are now better equipped to interview attorneys and determine who is best suited to help you and your family in whatever situation(s) that you are facing.
If you have questions about the material that we wrote about today or simply want to follow up on something you read, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys are available six days a week to speak to you about your case and to answer whatever questions you may have for us.