Thursday, May 29, 2014

Harris County Family Law Courts - change is a coming!

Now that the primaries are over, the news regarding the judicial elections will be quiet for a few months.

In November 2014 several courts in Harris County will have new judges --

Judge Jim York of the 246th is retiring.

Judge Bonnie Hellums of the 247th is retiring.

Judge Denise Pratt of the 311th resigned.

There are some Republication family court judges that have no Democratic opponent  --

Judge Roy Moore of the 245th.
Judge Judy Warne of the 257th.
Judge Lisa Millard of the 310th.
Judge David Farr of the 312th.

The contested races are:

Harris County Family District Court 246
Republican - Charley Prine
Democrat - Sandra Peake

Court 247
Republican - John Schmude
Democrat - Clinton "Chip" Wells

Court 308
Republican - James Lambardino
Democrat - James "Jim" Evans

Court 309
Republican - Sheri Dean
Democrat - Kathleen "Kathy" Vossler

Court 311
Republican - Alicia Franklin
Democrat - Sherri Cothrun

The new judges will take office in January, 2015.

Tuesday, May 20, 2014

Mediation 101

When you need a little help settling a dispute, mediation can be an excellent option to avoid court proceedings. 
Bringing another party to court is expensive, time consuming and stressful. 
By using a mediator, both parties will be given a neutral ear and the benefit of a private, confidential means of coming to an agreement.
People are allowed to discuss all of their concerns and "feelings".  Courts are not the place to discuss future concerns or potential problems.  But mediation can address issues that a judge cannot do.
Everyone can be in the same room or the people can be in separate rooms and the mediator can go back and forth.
The people control the amount of time spent at mediation.  Most only require a 4-6 hour session.  But sometimes the people want to do a series of meetings and go slowly.  The people control the mediation process.  The mediator acts to facilitate what the people want to do.  The people are the ultimate decision-makers - not the mediator.
If an agreement is reached, the mediator writes up a Mediated Settlement Agreement (MSA) and everyone signs it.  Then the people have the option of taking this document to an attorney to draft the paperwork to make it legally enforceable by a judge.  
Mediation can be helpful in nearly any situation, from dealing with your siblings regarding your parent's future to divorce to establishing paternity.  
The mediator acts as a third party, with the intent of improving communication between the disagreeing parties in order to find a suitable means of settling the dispute. 

Sunday, May 18, 2014

Free Texas family law forms -

All forms are free.

Be aware that no Texas attorneys use these forms so most attorneys cannot comment on their quality.

But they are FREE & much better than forms written by out-of-state companies that do not follow Texas law.

Friday, May 16, 2014

Mediation Thoughts

Note: I might use the term "divorce mediation" but it applies to all form of mediation!
Mediation uses a mediator which a trained neutral third party. In other words, mediation is a process in which parties to a dispute (say, a divorcing couple) communicate about their conflict with the help of a trained neutral, called a mediator, with the goal of reaching a settlement. This agreement is something that the parties reach by themselves voluntarily.  The mediator does NOT force them to come to an agreement.  Some divorcing couples may be able to work out all issues dividing them without help. Sometimes the agreement maybe a partial agreement & then the parties go before the judge for only a limited number of issues - in order to save time and money.  However, it is usually the case that people going through a divorce (or other family conflict) will need some assistance to reach an agreement that most effectively meets their needs and the needs of any children who may be involved.
Effective family mediation requires a discrete & unique set of skills and attitudes that is quite different from the set of skills and attitudes characteristic of an effective litigation-oriented lawyer. Attorneys making the transition to mediation frequently must un-learn behaviors that made them successful as litigators. In short, some attorneys are wonderful mediators; others are not. Whether a mediator is an attorney is just one factor to consider among others, such as the mediator’s reputation, mediating style, fee structure, availability, and overall compatibility with the clients. Mediators must be flexible & carefully listen to the needs and wants to the parties.  The parties control the mediation.  
Some mediators offer an informational interview, either in person or by phone, during which potential clients may meet the mediator and ask questions about the process. The purpose is for potential clients to gather information about mediation process and to assess whether the particular mediator consulted is a good fit for them, before signing an agreement to mediate.  The mediator must be careful in order to remain a neutral during the entire process.  However, both parties must feel that the mediator is "listening" to them.  
The primary benefit of mediating a divorce is that the parties control the terms of their agreement. In essence, they create their own customized agreement, tailored to their unique situation. While there are certain statutory items that must be considered, agreements made in mediation can cover a wider spectrum of issues, with more creative, individualized results, than would be possible if a judge were to control the process. In addition, mediation is confidential. Everything said during mediation, any draft resolutions or unsigned mediated agreements are considered settlement negotiations, and therefore will NOT be admissible in court. There are some very narrow exceptions to confidentiality that are beyond the scope of this article.  
In Texas, the judges must follow the Texas Family Code.  The mediation process allows for more flexibility.  In the courtroom the judge must follow the TX Rules of Evidence.  The mediation process allows for more flexibility.  The parties just talk.  People are allow to share their feelings, concerns and worries.  A judge can only allow testimony about concrete evidence in the courtroom - a party's worries about potential future events is not allowed into evidence at a trial before a judge since it is only an potential event in the future.  
Research indicates that when the parties are involved in crafting their own agreements, the long-term compliance rates are much higher than when a court imposes terms on a couple. This is a big plus when there are children involved. Also, once parties have come to agreement in mediation, if circumstances change, they are more likely to return to mediation to modify their agreement rather than resort to litigation about the changed circumstances.  Parties feel empowered because they were able to make decisions about their future and their children's future.  They also understand the agreements they made - rather than the orders that the Judge orders from his bench that most people don't understand.  
The Process
Couples can enter divorce mediation at any point during the litigation process.  Some couples complete mediation of their entire agreement before they file the petition. Others file the petition, mediate their settlement agreement, and then complete the rest of the statutory process. Some couples start out litigating with attorneys, and then enter mediation with or without their attorneys present. There is no one right way.  Many paths may lead to agreement.  Every mediation is unique because the parties are different and the parties control the process.  
I personally prefer that a petition be on file at the courthouse before the couple come to me for mediation. That way if we reach an agreement, our signed agreement can be filed at the courthouse and it is binding on the parties and the judge.  I also prefer that the parties have attorneys representing both parties.  Even though I am an attorney, if I act as a mediator, I am not supposed to give legal advice.  In family law cases, TX family law is complex.  Most parties do NOT understand Texas family law.  TX family law has changed a lot in the past 10 years and an attorney is need to explain all of the options available regarding child visitation - which has many variables available in the mediation process.  Often when I begin to explain some of the options available, pro se litigants eyes begin to "glass over" and I lose them.  It is much quicker and easier for me, as a mediator, if the parties have attorneys so that the mediation process can move quicker.  
If the parties have the monetary resources, then outside experts might even be brought in for their input, such as for pension evaluations or business valuations, appraisals of the family home, or various kinds of economic analyses. There may even be times when outside experts are desirable for evaluating what is best for the children.  
The scope of the mediation is up to the parties. In a typical comprehensive divorce mediation, all of the statutory requirements are addressed: identification and division of property and debts, parenting plans, and child and/or spousal support. In addition, the parties may choose to mediate topics that a court would not necessarily consider on its own, such as visitation by children with extended family, consequence of one parent moving far away, unique arrangements for payment of the spousal support obligation, and many more. The divorce mediator aims to find ways for each party to meet his or her needs. In popular terms, mediators strive to facilitate the clients in thinking outside of the box, so the clients can develop solutions appropriate to their unique situation and to accommodate their new family arrangement.  As I often tell parents, you are divorcing, but you will be co-parenting your children for the rest of your lives.
In the State of Texas, most courts require mediation before a trial can be held.  What most attorneys do NOT tell a client when they first walk into their office - 95% of cases settle before trial.  Why not? Because when a person first walks into an attorney's office that person wants a fight.  They are mad and angry.  The attorney knows it.  So the attorney initially prepares for a fight and going to trial.  Gradually, if the client is sane, the anger will diminish and the person will recognize that settlement is healthier & also less expensive.  After the client receives a few hefty monthly legal bills and their pocketbook is much lighter the client will begin to recognize that litigation is NOT the way to go - the client will beg the attorney for an alternative.  A smart attorney will then mention mediation and the advantages of mediation.  As a mediator, this is when I like to see parties come to mediation...when the parties have fought for awhile, they are tired & they want this case to be settled.  They are now pliable and ready to settle.  They have been separated for several months, been co-parenting in two households, the children have adjusted and things have settled down.  Now they are ripe for mediation.  
The actual process of mediation is highly variable, depending on the issues brought by the parties and the style of the mediator. I have done one session that lasted 12 hours and I have done multiple sessions.  Most people want to do one session.  Sometimes multiple sessions are needed.  Why?  If the parties do not have the information necessary to reach an agreement and more homework is needed to be done or one of the parties needs time to ponder the offer.  I have found that all of the multiple sessions have been very productive.  
The end product of divorce mediation is an agreement, in writing, that addresses all of the issues required or desired to be settled by the parties. It may take the form of a  which sets out all of the terms of the agreement, or a Mediated Settlement Agreement (MSA), which is filed with their judgment of divorce.
The Paperwork
Typically, the mediator is responsible for preparing a written document that sets out the terms of the mediated agreement, Mediated Settlement Agreement (MSA). The actual petition for dissolution of marriage and subsequent legal paperwork is a separate task. Although some couples try to handle the divorce paperwork themselves, it can be a daunting project. Filing the petition for dissolution is fairly straight-forward, but filing and serving all of the papers required to complete the process and obtain a valid judgment is more complicated and can be stressful. Obtaining competent assistance is essential in most cases. Frequently, court clerks return self-prepared documents for corrections, sometimes more than once.
One party may retain an attorney to file the case as an uncontested default, either after a mediated agreement has been reached, or in anticipation that an agreement will be reached. Some clients opt for a legal document assistant to help them with the paperwork. The quality of service provided by legal document assistants can vary widely, so careful selection of an assistant is essential.
Even though I am an attorney, if I act as a mediator, I cannot do your paperwork in the State of Texas.  You must have another attorney do your paperwork.  I can refer you to someone or you can find someone to do it for you.  There are many attorneys that will do this for you.
I do NOT recommend the internet kits since most are sold by out-of-state companies that do not comfort with
TX laws.  Also, they do not contain the REQUIRED TX and local forms that you will need.  Plus, in Texas one of you must stand in front of the Judge and under oath ask for the divorce to be granted in order for the Judge to actually sign the Divorce Decree.  Why? Because it is the law in the Sate of Texas.  You have to do it or the divorce paperwork will not be signed by the Judge - the case will be dismissed and all the work you have done and the money you spend will have been wasted!
Costs of Mediation?
Typically, when one household is splitting into two, money is tight. Fees for mediators can vary widely, ranging from $150/hour up to $700/hour or more divorce mediators. Other costs include the court filing fees for the petition - Harris County charges approximately $300. There will be fees for experts for necessary services such as pension evaluations, appraisals, and fees for consulting attorney.  Preparation of special orders known as qualified domestic relations orders (QDROs) for division of certain kinds of pensions cost approximately $500. 
My rates are purposely low even though I am one of the few Credential Advanced Mediators in the Houston area by the Texas Mediator Credentialing Association.  Why? Because kept my over-head low and I have kept my fees low because the Harris County judges like it!  I get referrals from the judges because of my low rates.  Also, the local family law attorneys like my rates.  My rates are under $300 per side for 4 hours.
There is no exact way to predict how long  a mediation might be. The bottom line is that the higher the level of conflict in the relationship, the more it will cost because more sessions will likely be necessary to come to agreement. Equally, if the couple’s financial situation is complex, more sessions may be required, and more expert opinions may be necessary. If there are minor children, probably at least a couple of sessions would be devoted to developing a parenting plan and appropriate child support.
People want a mediation to fly!  It does not go that way.  People need to get their feeling out.  That takes awhile.  Usually one party is much further along in the emotional process that the one party.  The mediator must let the process unfurl as necessary.  The mediation process is a process.  It cannot be hurried.  The mediator is the person in charge of this process - not the parties.  Often the parties are put into two separate rooms in order to allow them to share their feelings openly and honestly with the mediator.  Even if no resolution is reached at the end of the mediation process, most participants feel that they have been heard and that they were treated with dignity and respect.  Mediation can be a magical process where healing can begin to happen.  It is not therapy and it cannot fix the past.  It can encourage people to look forward and not backward.  
In order for mediation to be successful, the parties must negotiate honesty and with integrity.  All assets and debts must be revealed.  Normally a paragraph is included in the Mediated Settlement Agreement that is anything is "hidden" that it dealt with in the future or it goes to the "innocent" spouse.  That encourages the parties to be honest in their dealings.  Both parties must negotiate in good faith.  Mediation is also not appropriate if one party intends to intimidate or "force" the other to settle.  I have only stopped one mediation in my career when one party wanted me to "force" his spouse to sign the Mediated Settlement Agreement - he then threatened to hurt me & I had to have him removed.  I then had to have his wife taken to a shelter for abused women.  
Not Therapy
Mediation is not therapy.  I am not a therapist.  I encourage people to go to a counselor or therapist. But mediation is not designed to be therapy.  I cannot solve problems in a 4-hour session.  
Mediation provides many benefits over litigation or court-ordered settlements. Mediation is client-centered. The parties control their agreement, which they may shape to accommodate their unique set of circumstances. Mediation is forward-looking, and can plan for the future of the changing relationship between parents and their children. Because long-term compliance rates for mediated agreements are higher than for litigated cases, mediation provides more stability for the children. As circumstances change, the couple is more likely to return to mediation to modify their agreement rather than resort to litigation about the changed circumstances. Finally, mediation tends to be much less expensive and less stressful than the litigated divorce. Mediation reduces the physical and emotional costs of litigation, as well as the financial costs.

What to Expect in TX Family Law Court - written by TX Young Lawyer's Assoc. (2004-05)

What to Expect in Texas Family Law Court

A Public Service Provided By The Texas Young Lawyer’s Association

2004-2005 Family Law & Children’s Rights Committee
Chairs, Christy Albano and Eric Jarvis
Vice Chairs, Scott Renick and Barbara Stalder
Contributing Committee Members:
Karen Fryer, Kimberly Killebrew, Lisa Hernandez, Kristy Piazza

Free download available at


Court Appearance .....................................................................................................1
Alternative Dispute Resolution (ADR) Options........................................................2
Child Protection Cases..............................................................................................3
Custody / Conservatorship......................................................................................13
Visitation / Possession and Access ...........................................................................19
Child Support .........................................................................................................22
Modification of a Suit Affecting the Parent Child Relationship ..............................24
Enforcement Remedies in Family Court .................................................................26
Common Words in Texas Family Court..................................................................33
Resources ................................................................................................................38


Navigating your way through a family law case can be confusing during what is
often a stressful and emotional time in your life. Not knowing what to expect can
make it even harder. This handout is intended to help you understand what you can
expect when you have a case in Texas family law court.
Please note that this handout is not intended to be legal advice and is not a
substitute for legal representation by an attorney. You are encouraged to seek the
advice of your own attorney to answer any specific legal questions you may have.


At some point during your case, at least one of you will usually need to go in front
of the Judge. This happens even if you and the other side reach an agreement.
What to Wear. It is important to dress appropriately when appearing in court.
Everything you wear should be clean, pressed, and neat in appearance. Men should
wear a suit, or pants and a shirt with a collar. Women should wear a suit, dress, skirt,
or pants that are not too tight, too short, or too revealing. Shorts, t-shirts, sunglasses,
or hats are not allowed in court. Excessive make up, jewelry, or hairstyles are not
advised. If you are unsure about what you should wear, ask your attorney what is
appropriate for the courtroom you will be in.

How to Act. A court hearing or trial is a formal legal proceeding and all persons
are expected to be on their best behavior while in a courtroom. Always treat the judge
and other court personnel with the utmost respect.

When you enter a courtroom, you should turn off all noise-making items such as
watches, cell phones or pagers. Food, drinks, and chewing gum are not allowed inside.
You cannot bring magazines, newspapers, or any outside reading into the courtroom.

Once the judge has entered the courtroom, you cannot talk, whisper or write notes to
anyone, unless your attorney addresses you directly and needs a response.

When it is time for your court matter to be heard, you should speak clearly,
politely and loud enough to be heard by the judge and the court reporter. All responses must be verbal (e.g. not by a nodding or shaking of the head.).

If you address the judge directly or answer a question the judge has asked, always begin or end your answer with “Your Honor,” “Sir” or “Ma’am.” When referring to anyone else, even
someone you know well, address him or her as “Mr.,” “Mrs.,” or “Ms.” Never interrupt when someone else is speaking, especially the judge, even if you feel like what they
are saying reflects badly on your case or they may be mistaken in their facts. You or
your attorney will get a turn to speak. Sometimes during testimony, one of the attorneys has to make an objection. If this happens while you are speaking, stop talking
until the judge can make a decision on whether you need to finish answering the question.

If you are asked a question that you do not understand, it is okay to respectfully
ask for clarification. If you need a tissue, water, or a break, it is okay to respectfully
request one.

Bringing Others to Court With You.

Friends and Witnesses –

Court proceedings are open to the public and therefore
you can bring any adult family members, friends, clergy, or anyone else who will provide you with support during your court matter. If these persons will not also be witnesses in your case, they can stay and watch the proceeding. If any of them will be
called as witnesses, they will have to leave the courtroom until it is their turn to speak
Witnesses are not allowed to discuss the case with anyone while they wait to be called
to speak. Witnesses are allowed to bring books or magazines to read while outside the
courtroom. If you are unsure about who to bring with you, you should discuss it with
your attorney.

Children –
You should not bring children to the courthouse, even if the family
law matter being heard involves them, unless your attorney has directed you to or you
have been ordered by the judge to do so. If you cannot avoid bringing your children
to the courthouse, then you should bring a competent adult to supervise them while
you are inside the courtroom, as the children will not be allowed inside while court is
in session.
In very few instances, the judge will interview the children involved. There are
special procedures for this to occur outside the actual court hearing if that is necessary.
You should discuss with your attorney whether children’s statements are needed in
your family law matter.


All issues in a case are determined one of two ways. Either the parties reach an
agreement or the court makes a ruling at a hearing or trial. ADR options are different
processes that may be used to help the parties reach an agreement so that court proceedings to obtain a ruling are not necessary. They are often used in family law cases
to help settle a case and avoid the expense and emotional stress of a trial. There are several ADR options, more fully described below. A case may be referred to an ADR
process by one or both of the parties, or by a ruling of the court. Some judges require
that the parties attempt to settle their case through one of these ADR options before
they will hear a trial in that case.

Mediation is the most common form of ADR used for a family law matter. A
neutral person, called a mediator, meets with the parties to help facilitate an agreement. The attorneys are usually present at the mediation but are not required to be.
You should discuss with your attorney whether it is important for the attorney to be
present during your mediation. An agreement is not required and the mediator has no
power to force the parties to settle. However, if an agreement is reached, the parties
sign a written binding contract that is enforceable in court.

Collaborative Law is a process where the parties agree to resolve their dispute
without going to court. This process is new and is most often used in a divorce.
However, it can be applied in any type of case where the parties feel it will be beneficial. The purpose of collaborative law is to minimize the damage caused by a divorce
and to assist the parties in making a productive transition. Each party hires a collaborative law attorney and signs an agreement promising to be respectful toward each
other during the divorce and settlement negotiations. All terms of the divorce are
decided during a process of private negotiation meetings with the parties and their
attorneys. If necessary, other experts such as accountants or counselors may also attend
the meetings to assist with financial or communication issues. The primary advantage
to collaborative law is that the parties direct the terms of settlement, not the lawyers
or the judge. This tends to result in more satisfaction for the parties, and fewer trips
back to the courthouse in the future. If an agreement is not reached, or if one of the
parties decides to go to court, both parties must discharge the collaborative attorneys
and new litigation attorneys must be hired by the parties before going to court.
Arbitration is a process where a neutral person, called an arbitrator, makes the
final decision in the case instead of a judge. Arbitration is not used very often in Texas
family law cases. An advantage to arbitration may be the possibility of a quicker trial
date, quicker final resolution, and privacy, but arbitration rulings are usually considered final and cannot be appealed.

A Mini Trial is a process where both attorneys present a summary of his or her
side of the case to a neutral person who sits as the mini trial judge. The mini trial judge
then meets with the attorneys and parties, gives a recommendation on how he would
rule based on the evidence presented, and then the judge acts as a mediator to try to
help the parties reach an agreement.

A Summary Jury Trial is a process where a short summary of the case is presented to a real jury. The jury members typically do not know this is not the real trial
until after they have heard the case and made a ruling. After the jury has ruled, the parties continue negotiating to reach a settlement. If jury members agree, the attorneys
may ask the jury how their decision was reached. Often, the ruling of the summary
jury trial is a good indication as to what the final outcome will be in the real case.

A Private Judge Hearing is when a retired judge is hired to hear the case. The
advantage to hiring a private judge is privacy and expediency in reaching a final decision. Rules of evidence apply and the trial may take place at any location agreed upon
by the judge and the parties. The ruling of a private judge is subject to the rules of


The following information was adapted from A Handbook for Parents and
Guardians in Child Protection Cases created by the Child Abuse and Neglect
Committee of the State Bar of Texas.

It is available for free at under
the Child Abuse and Neglect Committee, or by calling the State Bar of Texas Public
Information department.

What is CPS?

Child Protective Services (CPS) is a part of the Texas Department
of Family and Protective Services (FPS), a State Agency set up by law to make sure
children are safe at all times. All citizens in the community are required to report
unsafe activity by calling 1-800-252-5400.

If a report is received saying that your child is not safe, information about the reason for the removal of your child is outlined in a paper called a Notification for
Removal, left at your home. The CPS caseworker from FPS may also explain why your
child was removed from your care.

What if you disagree with the decision to remove the child from your home?
If you disagree with the caseworker and the reason for removal of your child, you will
have a chance to explain your side to a judge soon after the removal of your child.
Why should you talk to the judge?Itis important to give the parties and the court
your explanation of the events that brought your child into foster care. Remember that
you may speak with the judge only during court hearings. You may not meet with the
judge privately outside of court.

The purposes of the Child Protection Court is to keep children safe and to help
families create a safe home for their children. The Child Protection Court is not
designed to punish parents.

The judge can require you and your family to get help. The judge also can order
that your child be temporarily placed in the custody of CPS. This means that, for the
time being, CPS is legally responsible for your child and, with the approval of the
Child Protection Court, can make decisions about where your child should live and
what you need to do to have your child returned to you.

The same problems that brought you to the Child Protection Court could result
in criminal charges against you, your partner, or someone else in your family. In that
case, you may have to go to another court and see another judge. This handout does
not deal with criminal cases. It is about civil proceedings (meetings and hearings) in
the Child Protection Court. Anything you say in Child Protection Court may be used
against you in a criminal case. If criminal charges have been filed against you, or you
think they might be, you should talk to an attorney.

What happens after your child is removed from your home? If your child is
removed from your home, you will be notified in writing and you will receive a copy
of the paperwork that has been filed with the court. One of the forms you will receive
is called a petition. The petition is written after a report is received and investigated by

The petition names you as a respondent. This is the term used by the Child
Protection Court for the parent or guardian in a child abuse and neglect case.
The petition lists one or more allegations (usually located in the Affidavit
attached to the petition). Allegations are statements of what happened and reasons
4why your child needs to be in the custody of CPS. If you do not understand the petition or any other paperwork, talk to your attorney.

Your rights:
• You have the right to an attorney. If you cannot afford to pay for an attorney, and CPS is seeking to terminate your parental rights, you may ask the
judge to appoint an attorney for you.
• You have the right to admit or deny the allegations made about you and
your family.
• You have the right to be notified of all court hearings.
• You have the right to attend all court hearings and meetings.
• You have the right to an interpreter in court if you do not understand
English or you are hearing impaired.
• You have the right to talk to your CPS caseworker and your attorney.
Remember, they may be busy with someone else when you call. Be sure to
leave a message with a phone number where you can be reached or try to
call them again. Keep track of the best times to call them.
Your responsibilities:
• Take this seriously.
• Attend all court hearings and meetings.
• Cooperate with your family services plan.
• Stay in touch with your attorney and your caseworker. Be sure they always
have a current address and telephone number for you.
Things move very quickly in child abuse and neglect cases. Be sure that you know
what you are supposed to do and when, and then do it. It could make the difference
in whether your child is returned to you.

Who Will Be Involved in your CPS Case?

CPS Caseworker –
When your child is removed from your home, you will be
given a notice of removal and the name and phone number of the CPS investigative
caseworker. After approximately two to three weeks, your investigative worker will
transfer the case to another caseworker. The caseworker will:
• Contact you to give you more information and ask you some questions;
• Visit your child regularly;
• Help you understand the problems that brought you to court, and
• Help you work on your service plan, which lists the steps you must take to
have your child returned to you.
If you do not hear from your CPS caseworker for awhile, or if you have questions
or problems, call him or her.
Your Attorney – When you go to court, the judge will ask if you have an attorney. You have the right to an attorney. If you cannot afford to pay for an attorney, and
5CPS is seeking to terminate your parental rights, you may ask the judge to appoint one
for you. Your attorney should:
• Talk with you before every hearing;
• Speak for you in court;
• Help you understand your rights;
• Tell you about the hearings you will attend; and
• Tell you what to expect at each hearing.

If you do not hear from your attorney for awhile, or if you have questions or
problems, call him or her. It is up to you to make sure your attorney can find you.

The Attorney for CPS –
CPS also has an attorney. The attorney for CPS represents CPS in court, and must prove why your child should be in CPS custody now.

Your Child’s Attorney – the Attorney Ad Litem (AAL) –
Your child will have
an attorney appointed by the court. This attorney is called an attorney ad litem (AAL).
The attorney ad litem’s job is to meet with your child and act as an advocate on behalf
of your child. Often the attorney ad litem also serves as the guardian ad litem (GAL)
for your child.

The Court Appointed Special Advocate (CASA) –
The judge may also appoint
a special advocate. This child advocate is a trained volunteer who will meet with you
and your child, as well as others involved in this case. The child advocate reports to the
court about how your child is doing and what they feel is in your child’s best interest.
Sometimes the child advocate may be called a guardian ad litem (GAL).
Mediators – During the case, the Judge may order that your case be sent to mediation or family group conference. Mediation is a meeting between you, your attorney,
the child’s attorney, CPS, and the CPS attorney to try to reach an agreement instead
of going to court. Mediators are independent, neutral individuals who have been specially trained to help people work out differences. Mediation is not a court hearing. If
you wish to use a mediator to help with your case, ask if mediation is available in your

When will you have to go to court?
You may be asked to attend several court
hearings and other meetings so that the judge and others can listen to all sides and
decide how to help your family. Each court hearing and meeting has a different purpose. Most child abuse and neglect cases have at least eight different court hearings and
meetings during the first year:
• Emergency Hearing
• Adversary Hearing (Show Cause) or Mediation
• Initial Permanency Planning Team Meeting or PPT
• Status Hearing
• Initial Permanency Hearing
• Additional PPT meetings
• Permanency Hearing
• Final Hearing (Trial)

It is important for you to be on time for all these hearings. If you are not present
in court at the time a hearing or trial is scheduled, the proceeding may begin without

Emergency Hearing –
If your child has been removed from your home without
a court order, the emergency hearing will be held within one working day of when the
petition is filed in Child Protection Court and may take place without you being there.
The hearing gives the judge the chance to find out why your child was removed from
your home.

At the emergency hearing, the judge will decide if your child should stay in the
temporary custody of CPS until the adversary hearing. The attorney for CPS will present information about the case to the judge. Information will include the allegations
made and what the investigation by CPS has revealed so far. CPS will also let the judge
know what actions have been taken to find a placement for the child, other than foster care.
Adversary Hearing (Show Cause) – The adversary hearing will be held no later
than the 14th day after the date the child was removed The purpose of this hearing is
to determine whether the child’s emergency removal was proper and to get temporary
orders for the protection of the child until the case is over.

The judge may decide to return your child to you, or to place the child with a
family member, a family friend, or another appropriate adult who is willing to help
and cooperate in this matter. You should come to the hearing with the names, addresses, and telephone numbers of people who might be able to keep your child temporarily. Finally, the judge may decide that for safety and protection of your child it would
be best that your child remain in the care of CPS.

This hearing is your chance to explain the situation from your point of view and
let the judge know how you intend to protect your child now and in the future.

Permanency Planning Team Meetings –
The Permanency Planning Team meeting (PPT) is usually held between 30 and 45 days after the removal of your child from
your home and again in the 5th, 9th and 13th months. Although this is not a court
hearing and the judge will not be present, all the people who are involved in the case,
including the attorneys, the child if over 12 years of age, foster parents, parents, CPS
staff and other caretakers can be there. Family members who are interested in your
child are also encouraged to attend.

At the first PPT meeting (or staffing) a “service plan” will be developed and discussed. The service plan will include the goal for the child that may be:
• Reunification with parent(s);
• Termination of parents’ rights to the child;
• Placement of child with relatives;
• Placement of child in foster care;
• Adoptive placement.

The purpose of this meeting is to talk about why your child was removed from
your home. The other purpose of this meeting is to come up with a service plan for
your child and your family that will help get your family together again, or whatever
is best for your child. That service plan will be presented to the Child Protection
Court. Be aware that the plan may change, but it will remain in effect until amended
by CPS and approved by the court.

It is very important that you attend the PPT meetings, so that your ideas about
what is best for your family and what can be done to make sure your child remains safe
can be heard. You will receive a letter telling you about PPT meetings: the date, time
and place. You may also call your CPS caseworker to find out about your child’s next
PPT meeting.

Status Hearing –
You have the right to a hearing before a judge to discuss the
service plan prepared by CPS. This hearing is called the status hearing. It will be held
within 60 days of when your child was ordered into the temporary care of CPS.
The purpose of the status hearing is to make sure that there is a service plan in
place for your child, that you are aware of this service plan and all of its contents, and
that you understand that you must complete all of the requests made in this service
plan (which the judge adopts) in order to have your child returned to you. At this hearing the judge may also ask about your current compliance with this plan.
You will be warned that unless you do what is asked of you in the service plan,
your rights as a parent may be restricted or terminated. It is very important that you
attend the status hearing.

Permanency Hearing –
The initial permanency hearing must be held no later
than 180 days after CPS is named as temporary managing conservator of your child.
The purpose of the permanency hearing is to evaluate the permanency plan for
the child to ensure that a final order consistent with that permanency plan is rendered
before the date for dismissal of the case.

The judge will review your case to make sure that the service plan is being followed. The judge will check to make sure you are doing what is ordered in the plan.
The judge will check to make sure the CPS caseworker and others are doing what is
ordered in the plan. If everyone agrees that the service plan needs to be changed, the
judge may order those changes.

You will be told in court that your parental and custodial rights may be subject
to restriction or termination unless you are willing and able to provide your child with
a safe environment. If the judge believes your child will be safe, and that it is in your
child’s best interest to be returned to you at this time, the judge can decide to return
your child to you.

At this hearing it will be decided what plans, services, or other temporary orders
are necessary to ensure final orders are rendered prior to the dismissal deadline. At the
close of the hearing, the judge may set a dismissal date and give notice in open court
8to all parties of that date, the date of the next permanency hearing, and the date the
case is set for trial.

Subsequent Permanency Hearings –
If the judge decides at your first permanency hearing that your child cannot be safely returned home, another permanency
hearing will be held to allow you to continue with services and determine the progress
you have made, or decide if your child’s plan should be changed to adoption, or some
other permanent arrangement outside of your home.

Subsequent permanency hearings must be held no later than every 120 days until
entry of a final order. The court can hold the hearing at an earlier date. The requirements and procedures are the same as for the initial permanency hearing.

Final Hearing (Trial) –
The court must enter a final order before the first
Monday after the anniversary of the order appointing CPS temporary managing conservator, unless on or before that date the court has granted an extension of no more
than 180 days.

A final order is one that:
• Requires that the child be returned to the parents;
• Names a relative of the child or another person as the child’s managing conservator;
• Without terminating the parent-child relationship, appoints CPS as the
managing conservator of the child; or
• Terminates the parent-child relationship and appoints a relative of the child,
another suitable person, or CPS as the managing conservator.
For all final hearings, testimony and evidence will be offered regarding your
child’s best interest.


There are two steps to secure an adoption in Texas:

(1) the court must terminate the birth parents’ rights to the child; and
(2) the adoption must be approved by the court.

What is the effect of a court order terminating a parent’s rights?
Termination of
parental rights means a parent is no longer considered a legal parent to the child. The
parent will no longer have any legal rights, duties or responsibilities to the child and
the child may be adopted by someone else. A termination order is normally considered
final and cannot be changed.

How are parental rights terminated?
The termination of parental rights may happen with the agreement of each parent, or by a court finding it is in the best interest
of the child to terminate one or both of the parent’s rights.

How do the biological parents indicate an agreement?
Birth parents, both father
and mother, generally must sign forms (called relinquishments of rights) indicating
their desire to place a child for adoption before a court will terminate their interests.
The relinquishment must be freely and voluntarily signed after the child is at least 48
hours old. Properly signed relinquishments generally cannot be revoked for 60 days.
Within this 60 day period, the court generally decides whether to terminate parental
rights. A decision to terminate is, except in very unusual situations, permanent.
What if there is no agreement by one or both of the biological parents?The court
will only terminate a parent’s rights if the court finds the termination and adoption to
be in the best interest of the child. An attorney will be appointed, called an Amicus
Attorney, to investigate whether the termination would be in the best interest of the
child. The court generally only grants an involuntary termination when a biological
parent has consistently not participated in the child’s life and has provided little or no
support and there is evidence that a fit and stable person in the child’s life is willing to
adopt, or the biological parent has been determined unfit to provide for the care of the
child due to abuse or neglect.

What if the birth father cannot be located?
If the location or identity of the birth
father is unknown, he is nonetheless entitled to notice of the proceedings, and you
must show the court that you have diligently tried to find him. He can be served with
notice of the termination proceeding by publication of notice in a newspaper of general circulation in the county. The court may require publication in the county where
the child was born and/or the county of the birth father’s last known residence. The
rules for notice by publication are complex and must be strictly followed. Once notice
is considered complete, the court will appoint an attorney to represent the interests of
the birth father.

What actions must be taken before the court will grant an adoption?
The court
will require the report of a social study performed in the home of the adoptive parents.
The adoptive parents must also obtain a Texas Criminal History Report. Courts also
generally require that the child live in the home for six months before granting an
adoption. This six month requirement can be waived only if the court finds “good
cause.” If the adoption is by someone other than a grandparent, aunt or uncle, or stepparent, the court also requires a report to be compiled on the available health, social,
educational, and genetic history of the child to be adopted.

What if the child is an American Indian?
If the child is an American Indian, very
powerful federal law called the Indian Child Welfare Act will apply and the adoptive
parents must comply with all terms of this law. The Indian Child Welfare Act is very
complicated and if you suspect the child may have an American Indian heritage, you
will want to seek legal counsel to ensure the requirements of the act are met. Normally,
permission of the tribe must be given before an adoption under this act may be

What if the adoptive parents and the child reside in different states? If the adoptive parents and child are not living in the same state, they must comply with the interstate compact law. The interstate compact office of each state regulates the movement
10of children from state to state for purposes of adoption. Failure to comply with these
laws before removing a child from the state of Texas is a criminal offense.
Can the child’s name be changed at the time of adoption? Yes. The name of the
child may be changed in the order if requested.

Can the validity of an adoption order be attacked?
Generally, the validity of an
adoption order is not subject to attack after six months after the date the order was


You should consult an attorney regarding your divorce proceeding if the divorce is
contested, you have a child custody dispute, or there are complex property divisions.
For information on representing yourself in an uncontested divorce, you may want to
review the Pro Se Divorce Handbook, created by the Texas Young Lawyer’s Association,
available for free at

Can I get a legal separation?
No. Although a legal separation is available and
sometimes required in many states, there is no legal separation in Texas. If you need to
protect your interests regarding your property or your children while separated from
your spouse, you must file for divorce and obtain temporary orders.

What if one spouse does not want the divorce?
In Texas, if one spouse wants to
be divorced, the divorce will be granted. Texas is a no fault divorce state, meaning fault
does not have to be proven to obtain a divorce.

What if I am in a common law marriage?
Common law marriage is when there
has been no marriage license issued, but the law considers you married. Texas will find
that you are “common law” married if you have lived together in the State of Texas,
had a proven intent to be married and held yourselves out to others as husband and
wife. There is no minimum time that you have to live together. Examples of holding
yourselves out as husband and wife include introducing each other as husband and
wife, the wife using the husband’s last name as her last name, filing taxes together as
husband and wife, and/or including the other person as a dependent on health insurance as a spouse. Living together and having children together does not automatically
mean you are common law married under Texas Law. The facts and circumstance of
each case must be considered to determine whether a common law marriage exists.

If I am common law married, do I need to get divorced?
If you have been separated over two years, then you do not need a divorce. Once you have been separated
two years, the law presumes you were not common law married. If you have property
to divide, you may want to get divorced so the divorce court can divide the property.

How long does it take to get divorced?
Texas has a minimum 60 day waiting period before a divorce can be finalized. The 60 days start running at the time the Original
Petition for Divorce is filed with the court. However, most divorces take longer than
1160 days. The time frame for divorce may take anywhere from a three to six months if
it is agreed, and up to several years in a highly contested matter. The more agreements
reached between you and your spouse as to the terms of the divorce, the sooner your
divorce will be final.

What is Collaborative Law?
Collaborative law is a process where the husband and
wife agree to get divorced without going to Court. The purpose of collaborative law is
to minimize the damage often caused by a divorce and to assist the parties in making
a productive transition. Collaborative law is more fully described above in the section
regarding Alternative Dispute Resolution (ADR) Options.

What is considered community property and community debt?
Texas is a “community property” state. In other words, all property owned by married persons on the
dissolution of a marriage, whether by death or divorce, is presumed to be the property of both the husband and the wife. Likewise, any debts incurred during marriage are
presumed to be community debt. This means that the debts are presumed to be owed
by both the husband and the wife. Like community property, community debt must
also be divided in a divorce. However, since the creditor is not a party to the divorce
action, the creditor may still pursue either spouse for collection of the debt, as they are
not bound by the terms of the divorce decree and the divorce court’s allocation of
responsibility for joint debts. If the divorce court orders a spouse to pay a community
debt and he or she does not, the other spouse may file an enforcement action against
the non paying spouse.

What is considered separate property?
Generally speaking, separate property is
property acquired before a marriage and property acquired during marriage through
gift or inheritance, or with funds that qualify as separate property. Also, married persons may agree in a properly drafted written agreement to “partition” community
property, in which case, that property becomes each spouse’s separate property.
How does the court divide the property and debts? Community property and
community debts are supposed to be divided in a manner the court “deems just and
right, having due regard for the rights of each party and any children of the marriage.”
This does not mean that community property or debt must necessarily be equally
divided. The judge dividing community property and debt may consider many factors,
such as the size of your and your spouse’s separate estates, and any fault causing the

What is a Temporary Restraining Order?
Commonly referred to as a TRO, a temporary restraining order is a routine order at the beginning of a divorce that prohibits
the other spouse from doing anything to transfer or destroy the property of the marriage or to cause harassment to the other spouse or the child. It is in effect for 14 days
and normally becomes a temporary mutual injunction at the temporary orders hearing. The temporary orders hearing must be held within 14 days of the date the TRO
is obtained.

What is a Temporary Hearing?
A temporary hearing may be requested to ask the
judge to make certain temporary orders while your divorce is pending. Temporary
12Orders set the “ground rules” for the parties’ conduct during the divorce with regard
to such matters as the preservation of property, the protection of both parties, who will
live in the marital home, and issues pertaining to the children such as child support
and visitation. The temporary orders usually remain in effect until the divorce is final.
What is Discovery?Discovery is a common method of investigation used to gather documents and information. Discovery may be sent as requests to the other side in
writing, or may be done in person by depositions. Time deadlines apply in regard to
the latest date discovery can be started as well as the number of days allowed to
respond. Normally discovery is expected to be complete before a final court hearing or
mediation begins.

What is Mediation?
Mediation is a common method used to reach an agreement
outside of court. A neutral person, called a mediator, meets with the parties to help
facilitate an agreement. Mediation is more fully described above in the section regarding Alternative Dispute Resolution (ADR) Options.

What happens at the trial?
A trial is the final court hearing. All issues that are in
disagreement are presented to the judge or a jury who will make a final decision. The
issues are presented through testimony of the parties, witnesses and evidence presented to the court.

Am I required to attend a parenting class?
In a case involving children, most
courts require parents to attend a specific class before a final order is entered by the
Court. The purpose of the class is to assist the parties in being able to focus on the children’s best interest rather than their own. Your attorney, the court, or the district clerk’s
office can provide you with information as to whether your judge requires this class,
and how you can register and attend. You are not normally required to attend this class
at the same time as your spouse. There is typically a small fee to attend the class.
What is a prove up? A prove up is the process of finishing your divorce in front
of the Judge at an uncontested court hearing. At the prove-up, one or both of the parties tell the final terms of the divorce to the judge. The judge then has the discretion
to approve the terms, grant the divorce and/or make any other orders the judge
believes are appropriate.

When is my divorce officially considered final?
Your divorce is considered final
on the specific day the Judge signs the Final Decree of Divorce.
How soon can I remarry? Since one of the parties may appeal a divorce within 30
days after the date it was final, you must wait a minimum of 30 days after your divorce
decree is signed by the Judge before you may get married again to someone else.


Texas uses the term conservatorship to describe the rights, responsibilities and
duties of parents in raising their children. This term also describes what most people
think of as “custody.” Conservatorship or custody does not define the amount of time
13each parent will have with the child. It only addresses the legal rights and duties of the

In Texas there are two kinds of conservatorship: (1) sole managing conservatorship, and (2) joint managing conservatorship. The presumption is that joint managing
conservatorship is in the best interest of the child. However, the court will consider
many factors in deciding which type of conservatorship is appropriate.

The “best interest of the child” is always the court’s primary concern. The court is not allowed to discriminate against a parent because of sex or marital status. All factors surrounding the
child’s life may be relevant to determine what is in the child’s best interest, including
if there has been a history of violence between the parents or violence against the child.
If the court finds credible evidence of a history or pattern of family violence, the court
is not allowed to appoint the parent who committed the violence as a joint managing
conservator, nor should the court appoint that parent as a sole managing conservator.
Evidence of family violence may include testimony by the parent who was the victim,
witnesses to the violence, pictures, doctors or hospital records, or counseling records
or the issuance of a protective order against a parent.

Sole Managing Conservatorship In rare circumstances, one parent may be
appointed as the sole managing conservator. When a parent has sole managing conservatorship, that parent has superior rights in raising the child. That parent also has
the most responsibility in raising the child. As a sole managing conservator (often
referred to as SMC,) that parent has the right to establish where the child will live, the
right to consent to any medical treatments, the right to receive child support payments, the right to represent the child in any legal action, the rights to consent to marriage or enlistment in the armed forces, the right to make education decisions, the
rights to any earnings by the child, and the right to apply for a passport for the child.

Examples of some reasons why the court might appoint a sole managing

• there is a history of family violence, neglect or abuse by the other
parent that might endanger the child;
• there is a history of drugs, alcohol or other criminal activity by the
other parent that might endanger the child;
• the other parent has been absent from the child’s life;
• there is a history of extreme conflict between the parents over
educational, medical or religious values;
• a parent does not wish to be appointed as a joint managing conservator

Joint Managing Conservatorship --
When a parent is appointed as a joint managing conservator (referred to as JMC), the parents will often share the above parental
rights duties and powers. However, even in a JMC situation, the court must designate
one parent who will be responsible for establishing the location of the child’s primary
residence and designate the geographic location within which the child’s residence
must be located. This parent is called the primary joint managing conservator, also
referred to as the “custodial parent.” The other parent is called the “possessory conservator,” because that parent has the right to possession of the child at certain times, and
14is commonly referred to as the “non-custodial parent.” Aside from the decision regarding the location of the child’s primary residence, most other major parenting decisions
are shared between the primary and possessory joint managing conservators. The presumption under the law is that joint managing conservatorship is in the best interest
of the child.

Possessory Conservatorship
The court will normally appoint the parent who is
not the sole managing conservator as a possessory conservator. In rare circumstances,
the court may find that it would not be in the best interest of the child to appoint the
other parent as a possessory conservator. Usually this is only done in cases where the
child may be in danger of physical or severe emotional abuse.

A parent appointed as a possessory conservator (PC) has the same rights and
duties that any parent has to their child. The parent has the duty to support the child
even if there is no formal child support order signed by the court.
The possessory conservator has the right to receive information from the other
parent about the child’s health, education and welfare, the right to talk to the other
parent (if possible) before decisions are made about the child’s health, education and
welfare, the right to have access to the child’s records, to talk to the child’s doctors, the
right to talk to the school about the child and attend school activities, the right to be
designated on the child’s records as an emergency contact person, the right to consent
to medical treatment during an emergency, and the right to manage the estate of the

Can a Non-Parent or Grandparent ask for Conservatorship?

In limited circumstances, a person other than the parent can be granted conservatorship.

Nonparent – A person, other than a foster parent, who has had actual care,
control, and possession of the child for at least six months has standing to ask for
custody if the six-month time period has not ended more than 90 days prior to
filing the suit.

Foster Parent –
A foster parent can file for custody if the child has been in
that person’s home for at least 12 months, ending not more than 90 days preceding the date the suit is filed.

Grandparent –
A grandparent may file for custody if there is satisfactory
proof to the court that the child’s present living environment presents a serious
question concerning the child’s physical health or welfare; or both parents, the
surviving parent, or the managing conservator either filed the petition or has consented to it.
How do I get custody?When a parent wants to establish conservatorship the parent has the right to file a lawsuit called a Suit Affecting the Parent Child Relationship or
a Suit to Establish the Parent Child Relationship.The lawsuit will ask the court to decide
issues of parentage, conservatorship, visitation and child support. The parent who
wants to pay child support or a parent who wants the other parent to pay child sup-
15port may hire a private attorney or go to the office of the Attorney General (AG or child
support office) and establish a child support order. This type of order may also be handled inside a suit for divorce. During the course of the suit, issues regarding parentage
may be raised. If one of the parties claims the father is not the biological father, genetic testing may be ordered. The person asking for the paternity test normally pays for
his/her costs for the testing, plus the costs for testing the child. The court will determine who will pay the fees for the other parent’s test. Genetic testing normally determines if the man will be considered the legal father of the child. However, certain
exceptions apply if the child already has a presumed father under the law.

Filing for custody through the Texas Attorney General’s Office.
A suit for
child support may be filed with the Texas Attorney General’s office. The Attorney
General represents the state’s interest for parents to collect child support. The Attorney
General therefore represents the state, not either of the parents. Pursuant to a request
by one of the parents, or the state if a parent is receiving state benefits, such as welfare
or Medicaid, the Attorney General may file a lawsuit to establish a child support order.
Once ordered, the child support will be deducted from the paycheck of the parent who
is ordered to pay. When establishing the child support order, the Attorney General typically also addresses the issues of conservatorship and visitation. Often the parents are
appointed as joint managing conservators and the parent ordered to pay child support
is awarded visitation pursuant to the standard possession schedule. If the parents disagree as to conservatorship or visitation, then the parties should consider hiring private
attorneys to ensure their concerns are properly brought to the attention of the court.

The AG will not typically assist parents with these matters since they represent the
State, not the parents.

Filing for custody when the parents are married to each other: When the
child’s parents are married to each other, and no prior court orders exist, each parent
has equal rights to the child. This means that if one parent wants to move out and take
the child, that parent has the right to do so. The police will not get involved without
a court order. This remains the case until a court order establishes the rights and duties
of each parent, determines which parent the child will primarily reside with, and when
each parent shall have possession of the child. This can be done through a divorce
action or through a separate suit affecting the parent child relationship (such as a Texas
Attorney General’s case).

Filing for custody when the parents are not married to each other but had a
child together: When two people are not married to one another and have a child
together, the father must legally prove he is the father in order to have parental rights
under Texas law. The father’s legal rights may also be established by the mother filing
a suit to establish parentage and requesting child support.
One way to establish parental rights is for the father and the mother to sign an
acknowledgement of paternity and file it with the paternity registry in the Bureau of
Vital Statistics in Austin, Texas. The father is required to register before the birth of the
child or not later than 31 days after the child is born. If the father fails to register with
the paternity registry, he may be prevented from asserting any legal rights as a father
to the child in the future.

The father may also file a separate lawsuit to establish that he is the father to the
child. The court may require the father to have genetic testing done to prove he is the
biological father. Instead of genetic testing, the court may accept an acknowledgement
of paternity signed by the father and mother agreeing that the man is the father of the
child. In either case, the father is then legally found to be the father of the child and a
parent under Texas law. This gives the father certain legal rights and duties to the child,
including the right to ask the court for custody.

Filing for custody when the parents are not married to each other, have a
child together, and the mother is married to someone else. When the mother is
married to someone else the man the woman is married to is presumed to be the father
to the child. This means that the husband has all the rights and duties to the child and
the man who thinks he is the father has none. The man who believes he is the father
to the child still has the duty to register with the paternity registry. If the child has been
raised by the husband, up until the time the child is four years old the man who
believes he is the father may also file a separate lawsuit objecting that the husband is
the father to the child. The court will order genetic testing to prove which man is the
father to the child. If the man who believes he is the father is proven to be the father,
he will have the rights and duties of a parent under Texas law and will have the same
right to ask for custody as the mother. If the mother and husband are still married to
one another but are in the process of divorce, the mother must notify the court of the
possibility that there is another man who could be the father so that person can be
notified. The husband also has the right to be tested to show he is not the father to the
child. If it is proven that the husband is not the father to the child, and the court finds
it is in the best interest of the child, then the husband will not be required to pay child
support and the husband will not have any legal rights or visitation with the child.
Other potential issues in a custody suit.When the decision of where the child will
primarily live is disputed, investigators may be appointed by the court to assist the
court in reaching a decision. The court also may impose certain limitations or requirements on the parents to protect the best interest of the children.

Social Studies.
The social study is a court ordered investigation of the circumstances and home life of the parents and the child. It is usually conducted by a social
worker, who will visit the home of each parent and interview the child, the parents,
and other persons involved in the child’s life. When the investigation is finished, the
social worker will write a recommendation to the court as to what would be in the best
interest of the child, including where the child should primarily live and/or what type
of visitation schedule would be best. Normally the parties are ordered to each pay for
half the cost of the social study.

Psychological or Psychiatric Evaluations.
A psychological or psychiatric evaluation is a court ordered evaluation of a person or child involved in the lawsuit. The
evaluation is conducted by a licensed psychologist or psychiatrist who will provide a
written report to the court. The judge will determine if one or both parties will be
responsible for payment of the evaluation.

Amicus Attorney.
An Amicus Attorney is an attorney appointed by the court to
represent the best interest of the child. The attorney will meet with the child and each
parent, and will investigate the concerns and facts of the case. The Amicus Attorney
may call witnesses, ask questions and make an argument to the court the same as any
other attorney in the case. The court will determine if one or both parties will be
responsible for payment of the Amicus Attorney’s fees.

Attorney Ad Litem.
An Attorney Ad Litem is an attorney appointed by the court
to represent the wishes of the child. Because the child is his client, he must adhere to
the rules of confidentiality and undivided loyalty to the child. The attorney ad litem
argues on the child’s behalf. The Attorney Ad Litem may call witnesses, ask questions
and make an argument to the court the same as any other attorney in the case. The
court will determine if one or both parties will be responsible for payment of the
Attorney Ad Litem’s fees.

Guardian Ad Litem.
A Guardian Ad Litem is a person appointed by the court
to represent the best interests of a child. The guardian ad litem is usually a volunteer
trained to be a Court Appointed Special Advocate (CASA) and is normally not an

Drug Testing.
If allegations arise concerning a parent using illegal drugs, the
court may order one or both parents to submit to immediate or random drug testing.
The judge will determine if one or both parents will be responsible for payment of the
testing. The judge may also impose an order prohibiting one or both parents from
using illegal drugs or alcohol while the child is in his or her possession.
Prohibition on overnight visitors. Sometimes the court will prohibit one or
both parents from having unrelated overnight visitors of the opposite sex (or the same
sex if a parent is homosexual) while the child is in his or her possession. This order may
be on a temporary or ongoing basis. The purpose for this order is to maintain stability for the child.

Child’s Preference.
When a child is age 12 or over, he or she may have input in choosing the parent with whom the child primarily wants to live. It is not binding on the judge.
However, the child’s choice is subject to the approval of the court, and the court will make the final ruling as to where the best place will be for the child to live.  The Texas Legislature changed this several years ago & eliminated the statement that the child could sign - it is no longer an option - it has been eliminated from the TX Family Code.

Geographic (Domicile) Restriction.
If the parents are named Joint Managing
Conservators, the court is required to establish a geographic area for the child’s primary
residence. The court may order the child to maintain primary residence within that
county, or that county and its surrounding counties for as long as the possessory parent resides in that county or a contiguous county. The courts favor this type of domicile restriction, and it is commonly ordered because it is normally in the best interest
of the child to live close to both parents. If the custodial parent moves far away, it creates a hardship for the other parent to exercise his/her visitation. The court wants the
child to have the opportunity to maintain close and meaningful relationships with
both of his/her parents. If the primary parent does not want a domicile restriction on
18the children, that parent will have to show the court a compelling reason why a move
away from the other parent would be in the best interest of the child.


Texas law describes visitation as possession and access. The parent who gets visitation is the person with whom the child does not primarily live. There are several types
of visitation in Texas, (1) standard possession order, (2) modified possession order, (3)
modified under three possession order, and (4) supervised visitation order. Generally
the courts will allow the parties to work out an arrangement between themselves that
they believe is best for the child. The parents can usually schedule visits by agreement,
but when they cannot agree, the court order is considered the “back up.” Sometimes
the court will not allow visitation due to a history of family violence or a potential danger to the physical or emotional welfare of the child. If visitation will be limited, the
court may order the visitation be supervised with a neutral third party or a private
organization that provides supervised visitation options to parents. If a private agency
is used, the visiting parent may be responsible for payment of the agency’s fees to visit
the child. Absent such a limitation, the parties may agree on different schedules and
times even though they have a specific court order. Some believe it is best to follow the
terms of the court order so each parent knows the schedule in advance and consistency is maintained for the child.

What is the standard possession order?
Visitation arrangements can have many
variations. In fact, parents may agree to almost any schedule regarding visitation.
However, if parents cannot agree, child visitation will generally follow a schedule
developed by the Texas legislature that is designed to be fair and workable for both parents in most circumstances.

Generally, the standard possession order (“SPO”) provides that the possessory
(visiting) parent is granted visitation of the child beginning at 6:00 p.m. every first,
third and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday,
as well as every Thursday evening, from 6:00 p.m. to 8:00 p.m. The possessory parent
may request an extended version of this schedule where he or she would have possession of the child from the time school is dismissed on the first, third and fifth Fridays
until school resumes on Monday morning, and on Thursday evenings from the time
school is dismissed until Friday morning. All holidays, including Thanksgiving,
Christmas (winter) and spring break are divided between the parents, giving one parent the right to spend a particular holiday with the child every other year. The SPO
also provides for the possessory parent to have 30 days with the child during the summer, or 42 days if the child lives more than 100 miles away from the other parent. If
the visiting parent lives over 100 miles away, that parent would also be given possession of the child every year for spring break.

What is a modified possession order?
The modified possession order means the
terms of possession are changed from the typical standard possession order (described
above). The modified possession order terms will vary depending on the needs of the
parents, the age of the child, and specific issues of the case. Some examples of modifications may be adding additional visitation time as the child increases in age, or
19accounting for a parent’s work schedule.

What is a modified under three possession order?
The court may consider the
needs of a child to determine if visitation should be limited while the child is under
the age of three. This modified order may state the child shall not have overnight visitation with the other parent until the child reaches a certain age. For example, the
order may state the child visit on Saturday and Sunday from 10:00 a.m. to 4:00 p.m.
or in the evenings from 6:00 p.m. to 8:00 p.m. The court will consider the age and
needs of the child, including the child’s normal structure and routine, as well as the
history of each parent’s involvement with the child. If the visiting parent has already
established a schedule of caring for the child overnight, it is unlikely the court will put
new limitations on the visiting parent’s schedule. If such limitations are put in place
until a child reaches a certain age, the parent who has primary possession of the child
is expected to cooperate with the visiting parent to insure the visiting parent has ample
visitation time without unreasonably disrupting the child’s routine and environment.
Both parents should also provide the other with a list of the child’s schedule and routine while the child has been with him or her so the schedule may be maintained.

What happens if the parent refuses to follow the visitation order?
If a parent refuses to let the other parent have possession of the child pursuant to the terms of the court
order, the remedy is to go back to the court and ask the judge to make them comply
with the order. The parent asking the court to enforce the order must show proof they
did everything they were supposed to do and the other parent failed to turn over the
child. For example, if that parent is supposed to pick up the child on Friday at 6:00
p.m., he must describe to the court each incident where he appeared at the right time
and place and the other parent failed to surrender or release the child. If the court
orders the parent to comply with the order and the parent still refuses, the other parent may also ask the court to issue a criminal contempt citation. If the court finds the
parent guilty of criminal contempt, the punishment may be jail time and/or a fine.
What happens if the parent who is supposed to visit does not visit the child? You
cannot force a parent to visit his or her child. There are no legal remedies to make a
parent exercise his or her visitation rights. The parent with whom the child primarily
lives has to make the child available according to the terms of the visitation order, but
if the parent does not want to visit then there is nothing the court can do. However,
failure of a parent to visit the child may become an important issue if there are later
court hearings regarding conservatorship and possession issues.

What happens if I want to move?
The geographical restriction is on the child, not
the parents. This means if the parent who has primary possession of the child wants to
move, he or she can, but the child cannot move if there is a geographical or domicile
restriction in the court order. Normally, if the order has a specific geographical restriction on the child and the possessory parent still lives within that area, the parent who
has primary possession of the child must get the written agreement of the other parent before he or she can move. This written agreement should be filed with the court.

If there is no agreement, the parent wanting to move must obtain permission from the
court. The court will require the moving parent to show what substantial change in
circumstances is requiring the move and how the move will be in the best interest of
20the child. The parent must show the court why the move away from the other parent
would be best for the child, and explain how he/she will assist in helping the visiting
parent continue a frequent and meaningful visitation schedule with the child. If the
possessory parent has moved away then it is possible the court’s approval is not needed if the parent with primary possession wants to move, but this depends on the terms
of the order and the moving parent should read over the terms carefully.

What happens if a parent disregards the geographic restriction?
If the primary
care parent disregards the order and moves without the agreement of the other parent
or the court, the visiting parent can go to court and request the court enforce the terms
of the geographic restriction. The court could force the parent to bring the child back
to the location where the visits were supposed to take place, even if the parent has
moved out of state. This may have the affect of the moving parent being forced to
move back, or losing the right to have the child primarily reside with him or her.

What if there is no geographical restriction?
If there is no geographical restriction
in the order, the parent is free to move wherever and whenever he/she wants. The parent with whom the child visits may not prevent the parent from moving without going
to court and getting the court to modify the prior order.

Do I have to make my child visit if the child does not want to go?
YES! The only
exception to this rule is if a parent believes the child may be in danger if the visit
occurs. If the parent suspects the child may be in danger then he/she should contact
the appropriate law enforcement or child protection agencies. The parent should also
file an emergency motion with the court asking the court to suspend the visitation
because the child is in danger. A parent cannot refuse to send the child for a visit
because the child does not like the other’s parent’s house, neighborhood, spouse,
boyfriend or girlfriend, or just because they are having a bad day. Texas law requires
that the parent make the child available for visitation unless the parent goes back to
court and gets a different court order. The parent is not allowed to alienate the other
parent and, even if the parents do not like each other, the child should always be
encouraged to visit the other parent.

Do I have to let the other parent visit if he/she doesn’t pay child support?
The order for child support and the order for visitation are completely separate. The
court looks at this from the child’s point of view. No matter what, that parent is still
the child’s father or mother. Whether or not the parent is paying child support, the
child still has a right to a meaningful relationship with his/her parent. Similarly, even
if the parent ordered to pay child support does not or is not allowed to visit, he or she
still must pay support.

What happens if the parent shows up late to pick up the child?
The parent who
is supposed to visit the child should make every effort to pick the child up on time. If
the parent is going to be late, he or she should notify the other parent. If the parent
shows up within 15 minutes of the appointed time, then the other parent should go
ahead and let the child go with the visiting parent. However, if the parent shows up an
hour late, then it is up to the discretion of the primary parent whether to let the child
go. This comes down to what is reasonable. If the primary parent has other plans, he
21or she is not expected to wait all weekend for the visiting parent to show up. The court
will consider what is reasonable, and what is in the best interest of the child when
determining how to interpret these situations. The parents should use appropriate
judgment and strive toward cooperation as much as possible.


Who pays child support?
Under Texas law all parents have a duty to support their
child. This means the parent must provide the child with food, clothing, shelter, education and other necessary things to live. A parent who does not primarily reside with
the child has the duty and obligation to support his/her child. The parent ordered to
pay child support is called the Obligor. The parent who receives child support is called
the Obligee.

When and how is child support paid?
A child support order requires the obligor
to make regular payments in a specific amount to the primary custodial parent. The
court will not put limitations on how the custodial parent spends the child support.
The child support is presumed to go toward the support of the child’s household,
either directly or indirectly, and therefore ultimately serves the child’s best interest
however it is spent. Normally the support is paid through the state registry and then
sent to the custodial parent so there is a record of payment. If the court allows the payments to be sent directly to the custodial parent, it is important both parents keep a
record of all payments sent and received.

What is the employer’s order to withhold income for child support?
The law in
Texas requires child support to be taken directly out of the obligor’s paycheck. When
child support is established, an order called An Employer’s Order to Withhold Income for
Child Support(also called the Withholding Order) will be signed by the judge and sent
to the obligor’s employer. This order requires the employer to withhold income for
child support out of each paycheck. Even if the obligor changes jobs, the withholding
order will apply to any new employer of the obligor. The obligor is required to notify
the court and the other parent of any changes in his employment situation including
the new employer’s name, address and phone number. If both parties agree, the withholding order may be suspended until such time as the obligor becomes behind in payment. In that situation, the obligor will be responsible for making the monthly payments on his/her own and the withholding order will not be sent to the employer until
he/she is late in payment. Although it may take a few weeks to get the process started,
once it is up and running. The withholding order often makes the process of paying
child support smooth and simple. All child support payments are then sent by the
employer to a central processing unit where the checks are processed and submitted to
the parent to whom the support is owed.

Who pays for the child’s health insurance?
An additional required form of child
support is health insurance, also called medical child support. It is the responsibility of
the noncustodial parent to make sure that the child has health care coverage. This may
be through private insurance, CHiPS or Medicaid. If the noncustodial parent does not
have access to health insurance and the custodial parent does, the court will require the
22noncustodial parent to reimburse the custodial parent for the cost to insure the child.
The uninsured medical expenses are normally divided equally between the parents.

How do I get a court order for child support?
Contact the Attorney General’s Office. A parent seeking a court order for child
support may go to the local office of the Texas Attorney General and fill out an application for assistance with child support. Most people call this the “child support
office.” The parent seeking child support should be ready to provide the noncustodial
parent’s home and employment addresses, telephone numbers, date of birth or social
security number. The office of the Attorney General will then notify the noncustodial
parent to see if an agreement can be reached regarding that parent paying child support. If an agreement cannot be reached, then the Attorney General’s office will file a
lawsuit asking the court to order child support. They will also ask that the child support be deducted from the parent’s paycheck.

Contact a Private Attorney.
A parent seeking a court order for child support
may hire a private lawyer and file a lawsuit called a Suit Affecting the Parent Child
Relationship. This is basically the same lawsuit the Attorney General will file. However
a private attorney represents the parent and the Attorney General represents the State.
A private attorney will cost more money because the Attorney General does not charge
attorney’s fees to the parent seeking child support. However, there are advantages to
hiring a private attorney, such as the opportunity to reach a quicker resolution and the
ability to address a parent’s concerns about the standard joint conservatorship rights
and duties and/or the standard visitation schedule.

How do I calculate the amount of child support?
The amount owed by the obligor will depend on the obligor’s income and the number of children for whom the
obligor has a duty to support (both from the children involved in this court case as well
as children from another relationship).

Texas has guidelines for determining how much a parent should pay in child support. The parent responsible for paying child support is allowed to deduct from his
gross pay (the income before taxes or any deductions) federal taxes, social security,
union dues and cost of the child’s health insurance. After these items are deducted, the
court uses a percentage of the obligor’s net income to determine the amount of child
support the obligor should pay. If the obligor does NOT have any other children to
support and the obligor’s monthly net resources are $6,000 (NOTE: THIS IS WRONG - NOW A HIGHER FIGURE)  per month or less, then the
percentage of child support applied is as follows:

20% (from net monthly income) for 1 child
25% (from net monthly income) for 2 children
30% (from net monthly income) for 3 children
35% (from net monthly income) for 4 children
40% (from net monthly income) for 5 children

The percentage continues to increase by 5% per child, however no parent may be
required to pay more than 50% of his or her net earnings to fulfill all of his or her child
support obligations. If the parent has other children to support from another relationship, the court will take that into account and the percentages will be less. Also, factors such as whether the noncustodial parent is intentionally unemployed, or underemployed (not earning as much as he or she is capable) will be considered by the court.

Normally, unless the non-custodial parent is unable to work due to disability, the court
will require some amount of child support. It is presumed the noncustodial parent is
capable of earning at least minimum wage unless he or she can prove otherwise. On
the other hand, if the obligor has monthly net income over $6,000, the court will
apply the percentage guidelines to the first $6,000 of the obligor’s net monthly
resources, and may order additional amounts of child support as appropriate, considering the income of the parties and the proven needs of the child.

What if the parent does not pay the child support?
As explained earlier with visitation, a child support order is an ORDER from the court. This means if a parent
refuses to timely pay his or her child support, the other parent can go back to court
and ask the judge to enforce the order. The parent who refuses to pay child support
can be punished by contempt and put in jail and/or fined. A parent who is not receiving child support may seek assistance through the collection of the child support office
at their local Attorney General’s office or may hire a private attorney. More information on this topic may be found under Enforcement Remedies later in this booklet.


A Petition or Motion for Modification is a suit requesting a change from the
last court order affecting the child. The modification may be in regard to child support, conservatorship (custody), and/or possession and access.

Who may file for a modification?
A person affected by the prior court order, or a
person who would have standing to sue in an original suit to affect the parent child
relationship regarding the child, may file for a modification.

Where should the modification be filed?
The modification suit should be filed in
the court of continuing exclusive jurisdiction, i.e. the last court to issue a final order.

Who needs to be notified of the modification?
Any party whose rights and duties
may be affected by a suit for modification is entitled to receive notice by personal service of citation.

Can temporary orders be issued in a modification?
 Yes, however, the court may
not render a temporary order that changes the designation of the person having exclusive right to designate the primary residence of the child under the final order unless:

(1) the order is necessary because the child’s present living environment may
endanger the child’s physical health or significantly impair the child’s emotional development;
(2) the person designated in the final order has voluntarily relinquished the primary care and possession of the child for more than six months and the temporary order is in the best interest of the child; or
(3) the child is 12 years of age or older and has filed with the court in writing
the name of the person who is the child’s preference to have the exclusive
right to designate the primary residence of the child, and the temporary
order designating that person is in the best interest of the child.
Is a change in circumstances required to request a modification?There must be a
material and substantial changein circumstances since the last court order to be able to
request a modification. For example, there is an increase in travel expenses due to a
parent’s change of residence; a parent is convicted of child abuse or family violence; the
needs, standard of living, or lifestyle of a parent or child changes; the child’s residence
changes; or military service changes a parent’s living status.

What must I show to modify an order regarding custody or possession and access?
You must show the modification would be in the best interest of the child, and either:
(1) the circumstances of the child, a conservator or other party affected by the
order have materially and substantially changed since the earlier of (a) the
date the order was rendered, or (b) the date the mediation order or collaborative agreement was signed on which the order is based; or
(2) the child is at least 12 years of age and has filed with the court, in writing,
the name of the person who is the child’s preference to have the exclusive
right to designate the primary residence; or
(3) the conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months.

Can a modification be filed within one year of the order establishing the parent
who has the exclusive right to designate the primary residence of the child?
 If a suit is
filed seeking to change the person who has the exclusive right to determine the primary residence of the child not later than one year after the order is rendered or the
mediated or collaborative settlement is signed, then the person seeking the modification must sign an affidavit stating facts supporting at least one of the following:
(1) the child’s present environment may endanger the child’s physical health or
significantly impair the child’s emotional development;
(2) the person who has the exclusive right to designate the primary residence of
the child is the person seeking or consenting to the modification and the
modification is in the best interest of the child; or
(3) the person who has the exclusive right to designate the primary residence of
the child has voluntarily relinquished the primary care and possession of the
child for at least six months and the modification is in the best interest of
the child.

If the court does not find adequate facts to support any of the allegations listed above,
the court will deny the modification and refuse to schedule a hearing for modification.

If the court determines the facts stated in the affidavit are adequate to support an allegation, the court will set a time and place for the modification hearing.

Can a modification be filed when there is an increase of travel expenses due to a
parent’s change of residence?
Yes. If a change of residence results in increased expenses
for a parent having possession of or access to a child, the court may issue appropriate
orders to take into account those increased expenses and the best interest of the child.
It is presumed that the parent whose residence has changed shall be responsible for
payment of the increased expenses. However, the parent whose residence has changed
may present evidence to the court to try to overcome that presumption.

What must be shown to modify a child support order?To change a child support
order, you need to show the court the following:
(1) there has been a material and substantial change in circumstances affecting
a child or person affected by the order since the last court order, or
(2) it has been three years since the last order and the monthly amount of child
support differs by either 20 percent or $100 from the amount that would
be awarded now under the child support guidelines.
If the person ordered to pay child support remarries can the court consider the
income of the new spouse? No. The court cannot consider the income or needs of the
new spouse when calculating the child support.

Can the change in child support be retroactive?
Yes, but only back to the earlier
of the date the opposing party is served with citation, or the opposing party makes an
appearance in the suit.


The enforcement of family law related court orders involves complex issues of procedural law, criminal law, statutory interpretation, and case law. Depending on what
kind of order is sought to be enforced, there are many different remedies available.
Contempt of Court. Contempt of court is defined as the failure of someone to
obey a lawful order of a court, disrespect for the judge, or disruption of the proceedings through bad behavior. A judge may impose civil (a fine) or criminal (jail) sanctions for someone found guilty of contempt of court. Contempt of court is often
referred to simply as "in contempt".

The two basic types of contempt, criminal and civil, are defined by the punishment imposed. For criminal contempt, the punishment is incarceration in the county
jail for a time certain (maximum of 180 days per violation) and/or a fine (maximum
of $500 a violation).

Contempt can be further classified into two categories based on when the offensive act occurred. Direct contempt is when the contemptuous acts occur in the presence of the judge. If someone is disrespectful to the court, the court has the authority to hold that person in direct contempt and assess a fine or incarcerate the person. If
the acts occurred in the past and must be proven to have occurred, then the contempt
is constructive. Child support and visitation violations are examples of constructive

Why is the original order important?
The original order specifically spells out
what must be done to comply with the order. The language must be clear, specific,
unambiguous, directive, and cannot be subject to more than one interpretation or
meaning. If these requirements are met within the original order, then the order may
be enforced by contempt.

Motion for Enforcement.
A motion for enforcement is a motion filed with the
court to enforce a final order for conservatorship, child support, possession of or access
to a child, property division, spousal maintenance, or other provisions of a final order.
What must be stated in a motion to enforce? The motion to enforce must be
clear as to what type of punishment is being requested (criminal or civil or both),
including how many days and/or the amount of the fine requested.
Ifthe punishment requested is incarceration for more than 180 days and/or a fine
of more than $500, the person being sued for enforcement, called the respondent, may
request a jury trial and may be entitled to a court appointed attorney if the court finds
he does not have adequate income or resources to afford one.

A motion to enforce a child support order must:
1. include the amount as provided in the order, the amount paid, and the
amount of arrearages; and
2. if contempt is requested, must include the portion of the order allegedly violated and, for each date of the alleged contempt, the amount due and the
amount paid, if any.

A motion to enforce an order other than for child support, must, in ordinary and
concise language:
1. identify the provision of the order allegedly violated and sought to be
2. state the manner of the respondent’s alleged noncompliance;
3. state the relief requested by the movant; and
4. contain the signature of the movant or the movant’s attorney.
What deadlines apply to getting a contempt or enforcement order? When bringing a motion for enforcement the first thing that must be addressed is whether a court
retains jurisdiction to render a contempt order.

A contempt order for failure to comply with orders must be brought by the following deadlines:

Enforcement of Child Support –
A contempt order for failure to comply with
a child support order can be brought in the last court to hear the case if the motion
for enforcement is filed no later than six months after the date: (1) the child becomes
an adult; or (2) the child support obligation ends under the order or by operation of
law. However, if the enforcement suit is brought to collect child support arrearages, the
statute of limitations does not apply and is indefinite.

Enforcement of Property Division –
For personal property in existence at the
time of the divorce decree, the suit must be filed before the second anniversary of the
date the decree is signed or becomes a final order after appeal, whichever is later, or the
suit is barred. For future property not in existence at the time of the divorce decree,
the suit must be filed before the second anniversary of the date the right to the property matures or becomes final, whichever date is later, or the suit is barred. [Texas
Family Code Section 9.003.]

Enforcement of Spousal Maintenance –
The Texas Family Code is silent regarding the enforcement of spousal maintenance as it relates to a statute of limitations.

Enforcement of Visitation –
A motion to enforce possession or access to a child
must be filed not later than six months after the child turns 18 or six months after the
right of possession and access ends under the order.

How must I notify the opposing party (the respondent)?
The motion to enforce
must be personally served on the respondent accompanied by an order to appear at a
“show cause” hearing. The respondent is entitled to 10 days notice of the hearing. If
the respondent is served less than 10 days before the court date, it is easy to avoid any
problems by simply swearing the respondent to reappear at a later date, unless the
respondent will waive the 10 days notice. If the respondent is served with the order to
appear less than 10 days before the hearing date, the respondent must still appear in
court on the hearing date, or a capias may be issued for his arrest.

Claiming affirmative defenses in an enforcement action?
In defending against
enforcement motions, the respondent has several affirmative defenses he or she may
claim, including the following:

Child Support Defenses
1. Custodial parent (obligee) voluntarily allows child to live with the parent ordered to pay child support (the obligor). This is called voluntary
relinquishment. If the obligee (the custodial parent) voluntarily gave actual
control and possession of the child to the obligor (the noncustodial parent)
for a longer period of time than the court-ordered periods of possession, and
actual support of the child was supplied by the obligor, then the obligor is
entitled to a credit up to the amount of the periodic payments previously
ordered for the time the child primarily lived with him or her.
2. Inability to pay the court ordered child support. If the obligor can prove
that he or she lacked the ability to provide support in the amount ordered,
lacked property that could be sold, mortgaged, or otherwise pledged to raise
the funds needed, attempted unsuccessfully to borrow the funds needed,
and knew of no source from which the money could have been borrowed or
legally obtained, the court may dismiss an enforcement claim.
3. Money paid directly to the other parent is not included in the child support record, or the child support record is wrong. If the obligor (noncustodial parent) can prove that he or she was not given credit for all payments made, the court may dismiss an enforcement claim or give the obligor a credit for a portion of the enforcement claim brought against him.
Proof may be in the form of cancelled checks or receipts from money orders
or cashiers checks. However, many courts will not give the obligor credit for
direct payments made to the obligee if the child support is ordered to be
paid through the registry or if the decree contains the provision that any
payments made outside the registry are deemed to be gifts.
4. Past behavior. The judge will consider past behavior in regard to punishment or sentencing. An obligor can also seek to introduce evidence that goes
to punishment. Since the sentencing hearing is not in a separate hearing as
in criminal cases, any evidence necessary for the court to impose a sentence
less than the movant is asking for needs to be introduced at the hearing.
Spousal Maintenance Defenses. For the enforcement of spousal maintenance,
these additional defenses apply: lack of ability to provide maintenance in amount
ordered; lack of property that could be sold, mortgaged, or otherwise pledged to raise
the funds needed; unsuccessful attempts to borrow the amount ordered; and lack of
knowledge of a source from which to borrow or otherwise legally obtain the amount

Habeas Corpus Defenses.
Habeas Corpus is a remedy to have the child immediately returned. Defenses that apply to habeas corpus suits include arguing that no
valid order exists or that the other parent voluntary relinquished possession of the child
in excess of six months.

Remedies available for enforcing Child Support Orders?
When enforcing child
support orders, Texas courts have several different options which include:
1. Income withholding – The court may order income be withheld from the
paycheck of the obligor in an amount sufficient to pay off the judgment of
arrearage in not more than two years. If the obligor is self employed, or otherwise not subject to wage withholding, the obligor must make periodic
payments to the obligee in an amount sufficient to pay off the arrearage and
discharge the judgment within a reasonable time. The obligee can request
that the court require the obligor to post a bond to ensure compliance with
a withholding order.
2. Child support lien – Another way to enforce a child support order is by
placing a child support lien by operation of law against any real or personal
property of the obligor for the amounts of the child support due and owing,
including accrued interest. The amounts do not have to be confirmed in
court before the obligee can obtain a child support lien. However, the lien
is subject to the requirements for perfection as found in Section 157.312 of
the Texas Family Code.
3. Suspension of license – A child support agency or obligee can file a petition to suspend the license of an obligor who has an arrearage equal to or
greater than the total support due for ninety days under a support order.

The obligee must first file the petition for suspension of the license and issue
notice to the obligor of such filing. If the obligor responds, a hearing will be
held from which an order suspending the license can be issued. The entity
that issues the license will receive a copy of the order and will then notify
the obligor of the suspension. Any license listed in Section 232.002 of the
Texas Family Code may be suspended including: driver’s license, plumbing,
pharmacy, alcoholic beverage, architects, barbers, public accountants, pest
control, engineers, polygraph examiners, nurses and doctors, attorneys,
midwives, department of health and psychologists.

Under Chapter 232 of the Texas Family Code, a court or the Title IV-D
agency (Texas AG) may issue an order suspending a license if an individual
who is an obligor: (1) owes overdue child support in an amount equal to or
greater than the total support due for three months under a support order;
(2) has been provided an opportunity to make payments towards the overdue child support under a court order or agreed payment schedule; and (3)
has failed to comply with the repayment schedule. In addition, there are two
other instances that warrant license suspension under Chapter 232: (1)
when a parent or alleged parent has failed, after receiving appropriate notice,
to comply with a subpoena; and (2) when a court has rendered an enforcement order with a finding that the individual has failed to comply with the
terms of a court order providing for the possession of or access to a child.
4. Commitment – As discussed previously, criminal contempt can be punished by incarceration in the county jail for a time certain not to exceed 180
days per violation or a fine not to exceed $500 per violation. Civil contempt
can be punished by incarceration for an indefinite period of time until the
obligor performs or stops performing a specific act. Thus, if a child support
arrearage is $3,000, a court can order the obligor incarcerated for up to 180
days under criminal contempt and a civil sentence of “day to day thereafter
until the respondent pays the arrearage of $3,000.”
5. Community Supervision – When an obligor is held in contempt, he or she
may be sentenced to a period of incarceration with the sentence suspended
so long the obligor meets certain terms and conditions instead of being
jailed. Those terms and conditions may include things such as: visits from a
community supervision officer, attending counseling, paying child support
arrearages, court costs and attorney’s fees, participating in mediation, or
seeking employment assistance services. The period of community supervision cannot exceed 10 years.
6. Qualified domestic relations order (QDRO) – Payment of past due child
support or spousal maintenance can also be secured by a QDRO. With this
option, the child or spouse is named as the alternative payee and monies are
distributed to the child or spouse. With child support, the plan participant
(the obligor) is taxed for such payments. QDRO is more fully described in
the definitions section of this handout.

Remedies available for enforcing visitation orders. When enforcing visitation
order, Texas Courts have the following remedies:

1. Habeas Corpus – When a quick remedy is needed and contempt is not
appropriate, relief can be sought through a habeas corpus proceeding. This
proceeding is most useful when there is no court order and a child is in the
possession of a non-parent or when a court order does exist and the child is
wrongfully possessed by a parent who does not have a right to possession.
This suit must be brought in the court of continuing, exclusive jurisdiction
or in the county where the child is found. This suit invokes the authority of
the court to end an unlawful retention of a child.
2. Warrant to take possession of child – Texas has adopted the Uniform
Child Custody Jurisdiction and Enforcement Act (UCCJEA), which provides a court of this state shall recognize and enforce a child custody determination of another state. Under the UCCJEA, a court of this state may use
any remedy available under the laws of this state to enforce a child custody
order. Thus, upon the filing of a petition seeking enforcement of a child custody order, the petitioner may file a sworn application for the issuance of a
warrant to take physical custody of a child if the child is imminently likely
to suffer physical harm or be removed from this state. If the court finds evidence of imminent physical harm or removal from the state, a court may
issue a warrant to take the physical custody of a child. The respondent must
be served with the petition, warrant and order immediately after the child is
taken into custody.

Remedies available for Enforcing Property Divisions?
When enforcing property
divisions, Texas courts have the following remedies:
1. Clarification order – If the terms of an original order are not clear or specific enough to be enforceable by contempt, the court may render a clarifying order setting forth specific terms to enforce compliance with the original division of property. A court may issue a clarifying order on a party’s own
request or on the court’s own motion. A court must provide a reasonable
time for compliance, however, before it can enforce a clarifying order by
contempt or other remedy.
2. Delivery of property – A court may make an order to deliver specific existing property awarded to a party, including an award of an existing sum of
money or its equivalent.
3. Money judgment – If a party fails to comply with a final decree of divorce
and delivery of property is no longer a viable remedy, a court may order a
money judgment for damages caused by a party’s failure to comply. A
money judgment rendered in this situation may be enforced by any means
available for enforcement of judgment for a debt.
4. Right to receive future property – A court may enforce an award of the
right to receive a payment or payments due to an owning spouse in the
future. The subsequent receipt of said money by the non-owning spouse of
such property imposes a constructive trust on property awarded to the owning spouse in a divorce decree for the benefit of the owner.
5. Attorneys fees and costs – The court may award costs in a proceeding to
enforce a property division against a disobedient party. In addition, the
court may also award reasonable attorneys fees as costs in a proceeding to be
paid directly to the attorney.
6. Turnover Order – If the enforcement is sought for any award other than
child support, the court has the authority to order the obligor to turn over
all non-exempt property, documents, and records to the petitioner if three
requirements are met: (1) the judgment debtor owns property, including a
present or future right to property, (2) the property cannot be attached or
levied on by an ordinary legal process, and (3) the property is not exempt
from attachment, execution, or seizure for the satisfaction of liabilities.
7. Suit for breach of contract or suit for declaratory judgment – Chapter 9
of the Texas Family Code provides a method for enforcement of the property division by allowing the filing of a suit for breach of contract or a
declaratory judgment within two years of the signing of the decree.

Remedies to enforce court-ordered spousal maintenance (alimony) Lastly, to
enforce court-ordered spousal maintenance, the Texas courts have the following remedies:

1. Income withholding –
In a proceeding in which periodic payments of
spousal maintenance are ordered, modified, or enforced, the court may
order that income be withheld from the disposable earnings of the obligor.
However, this does not apply to contractual alimony (agreements reached
without a court order) or spousal maintenance unless (1) the contract specifically permits income withholding, or (2) the alimony or maintenance payments are not timely made under the terms of the contract. However, the
court may order additional income be withheld above the current spousal
maintenance to be applied toward the reduction of any arrearages. This
additional amount withheld must be in a manner that will discharge the
arrearages in the least amount of time: either (1) an amount sufficient to discharge the arrearages in not more than two years; or (2) 20% of the amount
withheld for current maintenance.

2. Qualified Domestic Relations Order (QDRO) –
Payment of past due
spousal maintenance can also be secured by a QDRO. With spousal maintenance, however, the payee will be taxed for such payments so the benefits
of a QDRO for the enforcement of a spousal maintenance order may not be
the most cost-effective choice. QDRO is more fully described in the definitions section of this handout.

You cannot be held in contempt in all circumstances. Not all orders are enforceable by contempt. The following are restrictions on the enforceability of orders
through contempt:

1. Orders for the payment of debts are not enforceable by contempt, as such
would violate Article I, Section 18, of the Texas Constitution.
2. A person cannot be held in contempt for failing to perform an act he is incapable of performing.
3. The court cannot hold a person in contempt for something that is beyond
its power to order.
4. A person cannot be held in contempt unless the judgment or order specifically “spells out” what the respondent is to do and how he is to do it.
Even if an order cannot be enforced with contempt, however, there may still be
contractual remedies to enforce the terms of an agreed decree.


ADR Statement –
Alternative Dispute Resolution Statement. A written statement to
the court that you will try to resolve the issues in the divorce between you and your
spouse before asking the Judge to make a decision. This document was previously
required to be attached to the divorce petition.

Affidavit of Inability to Pay Court Costs –
A sworn statement of your income, assets
and expenses.

Alternate payee –
A spouse, former spouse, child, or other dependent of a member or
retiree who is recognized by a domestic relations order as having a right to receive all
or a portion of the benefits payable by a retirement system with respect to such member or retiree.

Amicus Attorney –
An Attorney appointed by the court to represent the best interest
of the child.

Arrearage –
Money that was court ordered to be paid and is overdue and unpaid.
Attorney Ad Litem – An Attorney appointed by the court to represent the wishes of
the child as he would for an adult client. The rules of confidentiality and undivided
loyalty apply.

Binding Agreement –
An agreement between the parties that is signed by both of
them, and is often also filed with the court. It is enforceable as a contract and the
Judge may decide to make the agreement enforceable as a court order.

Child Support –
Money paid by a parent to help the other parent support the child.

Collaborative Law–
A method of alternative dispute resolution where all parties agree
to resolve their disagreements without going to court. Each person hires his or her own
attorney and everyone works together in a series of meetings to reach an agreement.

Community Property –
Property owned by either party during the marriage.

Community Debt –
Debts that occurred during the marriage.

Conservatorship –
A court order deciding where a child will live and the rights each
parent will have to make decisions regarding the child. Also known as “custody.”

Court Clerk –
The person who works for the Judge assigned to your case. He/she
receives court papers and assigns hearing dates.

Court Reporter –
Types and/or records a record of everything said during a court
hearing. The court reporter will prepare a written record if requested for a fee.

Custodial Parent (Sole or Joint Managing Conservator) –
The parent who has the
legal right to determine the primary residence of the child.

Decree –
Also known as Final Decree of Divorce. The legal document signed by the
Judge that grants the divorce and describes the specific terms of the divorce.

District Clerk –
Maintains the official court records for the county. The district
clerk’s office receives all court papers and keeps the divorce files.

Divorce –
The legal end of the marriage relationship.

Docket Number –
The number given to your case by the district clerk’s office that
specifically identifies your case.

Domestic Relations Order –
 Any judgment, decree, or order, including approval of a
property settlement agreement, which relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other
dependent of a member or retiree, and is made pursuant to a domestic relations law,
including a community property law of the State of Texas or of another state.

Dual Role Attorney –
An Attorney appointed in a suit by a governmental entity to
represent both the child’s wishes and the child’s best interest.
Employer’s Order to Withhold – A court order to deduct child support payments
from someone’s employment wages. All child support court orders must include an
Employer’s Order to Withhold.

Evidence – Proof given to the court.

Filing – Giving the district clerk your legal papers.

Guardian Ad Litem – A person appointed by the court to represent the best interests
of a child.

Insupportability – The most common reason given for a no-fault divorce.

Joint Managing Conservatorship – Also known as Joint Custody. A court order stating both parents have equal rights and duties to make decisions regarding the child.

Judge – The person who hears and makes the final legal decision in your divorce.

Law Librarian – The person who maintains legal reference and research materials for
public use.

Managing Conservator – The parent who has the legal right to determine the primary
residence of the child. Also known as Custodial Parent, Primary Conservator or
Primary Joint Managing Conservator.

Mediation – A process to help the parties reach an agreement.

Mediator – A neutral, trained person who helps the parties reach an agreement.

Negotiations – An attempt to reach an agreement.

No Fault Divorce – The most common type of divorce, where no one needs to prove
that the husband or wife caused the marriage to end.

Non-binding – A process where no specific result is forced on the parties. There is no
penalty if the parties are unable to come to an agreement.

Non-custodial Parent – Also known as the Possessory Conservator. The parent that
does not have the legal right to determine the primary residence of the child.

Obligor – The parent who is court ordered to pay child support.

Obligee – The parent who receives child support on behalf of the child.

Parties – The husband and wife, and anyone else who has filed a court appearance in
the divorce.

Paternity – A court finding that a certain person is legally the father of the child.

Petition – A legal paper that starts your divorce case and tells the court and your
spouse what you want.

Petitioner – The person who files for the divorce.

Possession Order – Also known as “visitation” or “access.” A court order stating the
specific days and times a noncustodial parent may spend time with the child.

Possessory Conservator – Also known as the non-custodial parent. The parent who
does not have the legal right to determine the primary residence of the child.

Primary Conservator – The parent who has the legal right to determine the primary
residence of the child. Also known as Custodial Parent, Managing Conservator or
Primary Joint Managing Conservator.

Process Server – A person approved by the court who gives official legal notice to
another person by giving him/her an official copy of a court document.

Pro Se – Representing yourself without an attorney.

Prove Up – The process of finishing your divorce in front of the Judge at an uncontested court hearing. At the prove up, one or both of the parties recite the required
information to the court. The Judge then has the discretion to approve the terms,
grant the divorce and/or make any other orders the Judge believes are appropriate.

Psychological Evaluation – A court ordered evaluation of a person involved in the
lawsuit. The evaluation is conducted by a licensed psychologist who will provide a
written report to the court.

Psychiatric Evaluation – A court ordered evaluation of a person involved in the lawsuit. The evaluation is conducted by a psychiatrist who will provide a written report to
the court.

Qualified Domestic Relations Order –
A domestic relations order which
creates or recognizes the existence of an alternate payee's right or assigns to an alternate payee the right to receive all or a portion of the benefits payable with respect to a
member or retiree under a public retirement system, which directs the public retirement system to disburse benefits to the alternate payee.

Respondent – The spouse of the person who filed for divorce.

Retroactive Child Support – Child support that was not previously ordered, but should
have been paid at a time after the child was born and the parties were separated.

Return – Also called a Sheriff’s Return. An affidavit signed by a sheriff or official
process server stating the date and time he provided legal notice to the other party, or
the reason as to why he was unable to provide legal notice to the other party. The
return is filed with the Court.

Separate Property – Property that a spouse owned prior to the marriage, or property
that was given to the spouse as a gift or inheritance.

Service – The legal method for giving your spouse a copy of the divorce petition.

Settlement – An agreement reached between the parties.

Social Study – A court ordered investigation of the circumstances and home life of the
parents and the child. The social study is usually conducted by a social worker.

Sole Managing Conservatorship – Also known as sole custody. A court order stating one parent has more rights and duties regarding the child than the other parent.

Spousal Maintenance – Also called “spousal support” or “alimony.” Money a court
requires one spouse to pay to the other spouse for support during and/or after the
divorce is granted.

Standard Possession Order – A specific possession schedule designed by the Texas
Legislature and found to be in the best interest of the child in most circumstances.

Temporary Orders – Court orders during the pendency of a divorce. Temporary
orders may address any issues that need to be dealt with while a divorce is pending,
such as custody, visitation, child support, use of property and responsibility to pay

Temporary Mutual Injunction – Also known as a Mutual Injunction. A common
order contained in Temporary Orders in a divorce that prohibits the parties from
destroying or transferring any community property, incurring further debts, and from
any type of harassment to the other party or the child.

Temporary Restraining Order – Also known as a TRO. A common order at the
beginning of a divorce that prohibits the other spouse from doing anything to transfer or destroy the property of the marriage or to cause harassment to the other spouse
or the child.

Waiver of Service – A legal document, signed by the Respondent in the presence of a
notary, that states he/she accepts legal notice of the Petition without an official process
server or sheriff or constable giving it to him/her. The waiver of service may also have
other legal consequences depending on what is stated in the waiver.