What Not To Do: Custody Fight Edition

If you and your ex are fighting about custody, chances are you are doing so because one or both of you does something that puts your kids wellbeing at risk. Whether it is a struggle about alienation, alcohol, mental illness, drugs, neglect, questionable decision making, or general fitness for parenthood, things are going to get messy. And while everyone’s lives are messy to some degree, when you are in the middle of a custody battle, your mess gets put under a microscope. 

Here are some things it is wise to avoid doing if you want to keep your kids:

  1. Drugs. If you have a drug habit (whether it is pills, pot, meth, or anything in between), chances are your ex suspects it. Even if they don’t suspect it, it is certainly an easy allegation to make. Parties in custody battles are often made to submit to drug or alcohol tests. If you suspect your ex is using drugs and want to have them tested, chances are you will be tested too. Judges do not like the idea of awarding custody to a parent with a drug habit. Do whatever you need to do to stay clean. And stay clean. 
  2. Alcohol. Like drug use, alcohol abuse causes judges to question your ability to care for kids, especially if there is a history of DWIs or alcohol related incidents. Don’t drink and drive. Don’t get into alcohol fueled fights. Don’t drink around your kids. Be smart. If you need help staying sober, get help. And stay sober. 
  3. Exposing Kids to New Lovers. When your kids are with you, be with your kids. Give them the attention they crave and make them feel how much you love them. If you have a new lover, keep it to yourself. Be discerning about the people you allow in your child’s life. Make sure they aren’t a sex offender, drug user, alcoholic, or a criminal. And exercise discretion before introducing your kids to someone new. Don’t allow them to spend the night while your kids are over. Don’t bring them to soccer games. Don’t bring them to mediation or court. Why? Because it invites unnecessary commentary and conflict. It isn’t worth it. Wait until your relationship is legally recognized (i.e., marriage).
  4. Refusing Visitation/Not Exercising Visitation. Be reasonable and respectful. Abide by your Orders. If you are given the opportunity to see your kids, see them. If your kid’s other parent wants to spend time with their kid, let them. If you have a legitimate concern about the safety of the visits, tell your attorney. An emergency order requiring supervised visitations, or drug testing prior to visitation periods might be appropriate.
  5. Posting on Social Media. Did you have a great day in court?  Did you have a terrible day in court?  Did your ex make some boneheaded decision? Did you get really plastered last-night? The world does not need to know about it. Do not post about it on Facebook, Instagram, Twitter, or whatever social media platform you favor. Do not give that gift to your ex. That being said, you are under an obligation not to delete incriminating photos, posts, tweets, or other types of evidence. That is called spoliation and it is a big no-no. Don’t delete things. But don’t make them either. Do yourself a favor and just deactivate/disable (do not delete!) your accounts and enjoy a social media holiday.
  6. Emotional/Angry/Hateful Text Messages, Emails, Phone Calls. If you are in a custody battle, you are probably experiencing a whole new spectrum ofemotions.  That is typical and normal and expected. However, you need to process those emotions in a healthy, non-destructive way. Perhaps you take up painting, running, yoga, or kick-boxing. Perhaps you confide in a trusted friend, counselor, spiritual advisor, or family member. Do everything you can to tame your anger so you do not end up sending regrettable text messages, emails, phone calls, Facebook messages, or the like. You do not want to create a record of your darkest thoughts, especially if that record is sent to your ex. Before you hit send, imagine the judge reading it. 
  7. Exposing Kids to Discussions about Fault, Blame, Hate. Divorce and custody issues are stressful for the parties, but they are even more confusing and potentially devastating for the kids involved. Kids need to know that they are loved, that they are important, and that they are going to be okay. Kids do not need to know that their lives are in turmoil because Daddy couldn’t keep it in his pants, or because Mommy couldn’t stop using drugs. If you try to convince your kids that the other parent is a bad person, your kids will resent you later on. Be keenly aware of how you interact with your co-parent, and how you refer to the co-parent while in the presence of your kid. 

Common Questions about Mediation

What is Mediation?

Mediation, quite simply, is a formal settlement conference. Parties gather with their respective attorneys, and a neutral third party called a mediator. In family law, mediators typically use the caucus approach. This means that you and your attorney will not be in the same room as the other party and their attorney. The mediator will go back and forth between rooms taking offers, counter offers, coming up with potential solutions, conveying certain information, and pointing out what might happen in the event an agreement is not reached. 

Why Do We Have to Mediate?

Most judges in Harris County require parties to mediate before hearings for temporary orders and final trial. Why? Because judges do not want to have to decide how parties should live without giving them a chance to come up with an agreement between themselves. Many times, mediation ends with an agreed order with terms by which both parties can abide. It is a lot less expensive in terms of time, money, and emotional costs to mediate as opposed to going to trial. Furthermore, a mediated agreement provides certainty. Judges and juries can be unpredictable. 

What Happens if We Can’t Reach an Agreement?

Not all mediations end in an agreement. When it becomes clear that parties cannot come to an agreement, the mediator will declare an impasse. The mediator will then file a report with the Court saying that the parties showed up, paid the mediation fee, and could not come to an agreement. 

Is a Mediator a Judge?

No. A Mediator is a third party neutral. Mediators do not decide who is right and who is wrong, and Mediators cannot order parties to come to an agreement.  However, experienced Mediators can offer insight into how judges and juries operate, and offer creative ways to structure agreements that will work for both parties. 

Mediators provide both sides with a reality-check. At times it may seem that the Mediator has taken the other party’s side. That is intentional, and you should know that the Mediator is likely doing the same thing in the other room. 

What Happens if the Other Party is a No-Show?

It can be down right infuriating when you make the effort to prepare for mediation, take time off from work, make arrangements for childcare, sacrifice your budget to pay the mediation fee, only to arrive and learn that the other party just did not show up. Take a deep breath and pay the fee. This is a gift. 

Here’s what will happen: the Mediator’s report will read something like this: “Party A showed up on time and payed the mediation fee. Party A was ready to negotiate in good faith. Party B was a no-show. Party B has not paid the mediation fee. Party A waited thirty minutes until it was clear that Party B was not coming, at which point I declared an impasse.”  

Then, the report gets filed with the Court, i.e., the Judge.  Polish your halo and make sure your attorney asks the Court to award you attorneys fees and mediation fees, as the other party wasted everyone’s time.

What Do I Need to Do to Prepare for Mediation?

  1. Relax. Remember that mediation is just a settlement conference. You do not have to come to an agreement, although it may certainly be in your best interest to do so.  Get a good night’s sleep, as mediations can be emotionally draining. 
  2. Have Breakfast. Make sure to have breakfast. While you might be looking at a half day mediation, many times mediation sessions will last a full day, and well into the evening. You do not want to lose energy and feel pressured to cave in due to hunger or exhaustion.
  3. Make Arrangements for Your Kids. If you have children, make sure that they are taken care of for the day. Mediation sessions can go over, and you need to be able to be there for the entire session. Have a trusted friend or family member pick them up from school and handle the evening routine. Knowing that your kids are taken care of, you will be better able to focus on the matter at hand.
  4. Think About What You Want. Chances are, you have had sleepless nights thinking about your family and your future, and how you are going to navigate a new normal. Make a list of the issues that are most important to you so you can communicate that with your attorney. Your attorney will discuss the possibilities and consequences, and negotiate to get the best result. 
  5. Think About What You Don’t Want. Perhaps you don’t want your kids to have to talk to the Judge, or you don’t want to have to testify about certain delicate issues. Perhaps you really don’t want your kids to be around your ex’s new lovers. Perhaps you just really don’t want to sell the house. Figure out where your bottom line is regarding the issues that give you pause. 
  6. Come Prepared. You and your attorney should be equipped with documentation. Depending on the particulars of your case, you will need different types of documents. Generally speaking, you will need anything to substantiate property issues (assets, liabilities, account numbers, appraisals,  credit card balances, cash values of life insurance policies, etc.) and important documents relating to conservatorship and possession (school records, medical records, phone records, recordings, etc.). It is helpful to have the things that you would need at trial in order to show the mediator a little taste of what kind of a case you would put on at trial. 

At the end of the day, you will either have:

  1. an agreement you can live with; or
  2. a better idea what the other party’s case will look like; and
  3. a ticket to court. 

 

Cost Effective Representation, aka How to Be a Good Client

Divorce is expensive. Complex divorces are even more expensive. Every phone call, email, meeting, court appearance, pleading, and piece of discovery requires time and work, and will end up on your bill. Of course you want the very best representation, and we are happy to provide the very best experience for you. That being said, we are mindful that legal fees can become a tremendous financial burden and we are committed to being responsible stewards of your retainer. 

To that end, here are some tips to maximize the value of your time:

  1. Get Your Documents Together. Depending on what your legal needs are, we will require various documents to support your case. For example, divorce cases will require tax records, pay stubs, health insurance documentation, bank statements, etc. For custody disputes, we will need records pertaining to the health and wellbeing of the kids. Enforcement cases will require proof of the violation, which may be in the form of Child Support Payment Records, incident reports, etc. Whatever it is that supports your case, we will need copies of. The more organized you are with your documents, the less time it will take us to sort through them. 
  2. Effective Communication.  We are here to answer your questions and provide guidance. We know that this process is likely foreign, and that the emotional dynamics make the process even more overwhelming. If you take time to process your questions and concerns, we can make the most out of our emails, phone calls, and in-person meetings. While we are happy to answer any questions you may have, the most cost-effective way to get your questions answered is to address them in as few meetings, emails, or phone calls as possible. 
  3. Tell the Truth. The more we know about your situation, the better we can protect your interests. We need to know the truth about what is going on with your situation, especially when it is difficult to be honest. By being up-front about your issues - from infidelity, to drug or alcohol use, etc.- we can manage information and try to avoid complicated messes in the future. The truth will come out, but the more honest you are with us, the easier it is for us to manage. 
  4. Email > Phone. Most days, our attorneys are in court. While we cannot take phone calls during court proceedings, we are generally able to respond to emails within the day. Our team is in constant communication in order to provide you with the attention you deserve. 
  5. Avail yourself of our Staff. Get to know our friendly and experienced staff. Our paralegals and legal assistants will be able to provide you with case updates, scheduling matters, and discovery. 

We are honored to serve you and your family during this time of change. With your cooperation, we will be able to provide you with the very best representation in the most cost-efficient manner. 

The Perks of Pre-Nups

Certainty and stability are some of the attractive benefits of marriage. 

Unfortunately, those perks typically dissolve in the event of a divorce. Seeing as approximately 50% of all marriages end in divorce, the only way that a Texas couple can provide for certainty is to enter into a premarital or prenuptial agreement.

Premarital agreements, often called "prenups", are like insurance policies and umbrellas: you hope to never need them, but you are glad you do when issues arise. 

Benefits of a well-drafted premarital agreement include: 

  • Identify Separate PropertyUnder Texas law, property brought into a marriage and property obtained during the marriage by means of gifts or inheritance are the separate property of the respective spouse. However, when it is time to divide assets it can become difficult to sort out the separate property from the rest of the estate. A well drafted pre-nup will contain schedules of separate property. These inventories will make division much simpler in a contentious divorce. 

  • Communicate Expectations: Entering into a premartial agreement creates an opportunity for couples to discuss and memorialize their hopes and expectations for their marriage. A frank conversation about assets, debts, career aspirations, the division of household labor and child care, and money management can prevent future heartache. Couples can also use a premarital agreement to express expectations about fidelity and longevity. 

  • Exit Plan: While brides and grooms enter marriage with the expectation of a long and happy life together, the reality is that no marriage is 100% divorce proof. Having an exit plan can make the divorce process much less contentious, and therefore less costly in terms of stress, emotion, time, and money. 

That being said, if your future spouse wants a prenup, make sure to meet with your own attorney to discuss the long term implications thereof. A trusted advisor can provide you with objective advice and a clearer perspective. And you just might find that these early discussions can help you build a stronger, more stable marriage.