Wednesday, August 29, 2007
For free information on Texas laws, go to the Houston Bar Association's website (www.hba.org) and look under "information for the public". Under that tab look for handbooks. The have free "handbooks" on FAMILY LAW, CONSUMER LAW AND ELDER LAW. The Family Law handbook is the best booklet that I've found. If you type into Google "Texas free divorce information" or something like that and thousands of website will pop up. Many are good. The national ones tend to be the worst since they try to cover all 50 states.
Thursday, August 23, 2007
What should you do when you have a power of attorney and the judge ignores it and appoints a guardian instead?
I received this question from an anonymous person and I wanted to respond. I handle family law cases. Many people call me and want guardianship over a child. I almsot always recommend custody rather than guardianship because it does not require the court's oversight like guardianship does in Texas. I do not do much probate (aka guardianship) law these days. Therefore, I'm not comfortable in answering the question. I recommend that you find a board certified attorney in family law to discuss this matter with in person. Also, such a quick question is not appropriately answered via an email. I would need to meet with this person and learn all the details involved as well as review the court's file and/or read a certified copy of the court's order. I personally use Mr. W. Kevin Alter of Hebinck and Alter located at 5009 Caroline Street, Houston, Texas 77004. Kevin's phone number is 713-526-2333. I've sent several friends and relatives to him. I have used him personally! Everyone likes Kevin because he is patient, thorough, and kind. (They also feel his prices are very reasonable!) He also "speaks English" and not "lawyerese" to people. He is able to take complex legal concepts and describe them to a person without a high school education. To be able to simplify legal concepts so that the average person can understand them takes someone that really understand their stuff! There are many fine probate and estate planning lawyers in the Houston area. If you want a referral to someone, please call and I will be glad to give you some names in your neighborhood and price range. If you have a small estate (total value under $250,000) you don't need a $500/hour lawyer!
Wednesday, August 22, 2007
In Texas, both parents are supposed to support their child. Texas law is not written to address minor children having babies! However, if a 16 year old girl gets pregnant, her 16 year old boyfriend will be required to pay child support based on his income. He will need to get a job and earn money. The courts will order that the father have visitation periods with the baby. How often does this happen? Frequently.
A person's past is NOT always relevant in a custody case involving minor children. If a person was convicted many years ago, it might not even be allowed to be mentioned to the judge. If your spouse (say wife) was convicted of selling drugs 15 years ago, you married her 10 years ago (and knew of the conviction) and all of your children are under the age of 5, her former criminal record might be irrelevant. If her record has been clean for 15 years, it shows that she has probably cleaned up her act. If she was such a bad person, then why did you marry her? If a person was convicted of writing hot checks, how does that show he is a bad parent? That person might not be crummy at math or is irresponsible, but hot checks are a lot less important to a judge than driving while intoxicated, beating up people, threatening people with a weapon, threatening to kill their spouse, injury to a child, etc. If a person has been convicted of DUI or DWI within the past 2 years, it might be VERY important. Has the person finished their probation successfully? Is the person attending AA meetings? Does the person admit to a drinking problem? Do they still drink? Do you have evidence that the person is still consuming alcohol? If so, what evidence do you have? The burden is on you to prove that he is still an alcoholic, still actively drinking, still drinking while drunk, not admitting to having a problem, falls asleep when they are supposed to be watching the child(ren). People can and do change. If the judge feels the person accepts responsibility, has worked hard to not repeat the same mistake twice and has taken steps to never repeat the same mistake, the judge might decide that the past is behind the person and they have learned their lesson.
If 2 married people have a child and decide to quit living together, if there are no court orders, then either parent can have custody of the child. However, please understand that there might be a court order that you are unaware of. Being unaware of a court order, is NOT a reason to violate a court order. Judges do NOT like it when people do NOT follow their orders! If you are served divorce papers, if you do nothing you are held to be responsible to know what happened in the case. Even if your spouse swears that the divorce has been dismissed, it is your responsibility to do the research and make sure the case has been dismissed. Ignorance of the law is not an excuse! If you violate a court order, you can be held in contempt of court and be fined and/or jailed. Judges usually punish people that don't follow their court orders. I encourage people to work out their problems and consider what is best of the minor child(ren). However, a parent cannot kidnap a child(ren) if there is no court order in effect. That said, the courts don't like a parent that takes a child and hides the child from the other parent. The courts hear complaints about this sort of problem on a daily basis and the judges get tired of parents trying to hurt each other and not considering what is best for the minor child. The judges will begin each case as considering both parents equally qualified to raise the child. The burden is on YOU to show why you are the better parent. We have all done things as parents that we regret - however, hopefully we have all learned through our mistakes to be better people and parents. I try to use common sense when explaing "best interests" to a potential client. To my knowledge, there is no exact definition for best interests of a child. It's kind of like that old joke about pornography - you know it when you see it. The judges recognize that you selected each other, got married, then voluntarily produced a child or numerous children. The judges don't like it that now that you decide to divorce the other parent, the other parent is now a bad, irresponsible parent. If you are going to allege wrongdoings on behalf of the other parent, you need witnesses and evidence. A written and notarized statement is not enough. Every person has the right in court to cross-examine a witness. Therefore, you need anyone with person knowledge to appear in court, be sworn in, testify and be cross-examined. The Judge will determine each witnesses credibility. Again, credibility is a difficult term to define. Basically the Judge will try to decide who is telling the truth. A witness can only testify to something they have personal knowledge of -- they heard it, saw it, smelt it, or even tasted it for themselves. The judges think -- if YOU married the other person, lived with the other person for years and then reproduced (for most people they reproduced several times) -- then NOW why is the other parent so bad. If the other parent is so bad, why did you stay with him/her? Doesn't that show poor judgment on your part? If you married and repeatedly reproduced, doesn't your spouses poor judgment reflect badly on you too? Example: 2 drug dealers separated both wanted custody of the child. The father said that Mom left cocaine out on the coffee table in a crystal bowl. He did not move the crystal bowl so the 2 year old could not reach it. How was he any better than the mother?
Custody is handled in the family courts in Texas. Guardianship is handled by the probate courts in Texas. I don't like guardianships for minor children. Why? They are paper intensive and sometimes more expensive than custody. I encourage people to consider legal custody for minor children. You would need to talk to an attorney to determine if you need legal guardianship if a minor child or if legal custody of a minor child would be better. I can't answer that question for you unless I talk to you about your individual facts.
There are some alternatives to a court ordered guardianship in the State of Texas. I strongly urge you to talk to an attorney that handles a lot of probate issues to discuss the needs of your case! Some possible alternatives MIGHT be: DURABLE POWER OF ATTORNEY - a document a person does to designate another person to act as his agent for financial matters. There are pros and cons to this document. DURABLE HEALTH CARE POWER OF ATTORNEY - a person designates another person to make medical decisions for them if the person is unable to do so. For example, you are in an automobile accident and in a coma. The doctor cannot talk to you about possible medical treatments available to you. You need another person to talk to the doctor and decide how to proceed. When you regain consciousness, then you would make your own medical decisions. DIRECTIVE TO PHYSICAN -- ALSO KNOWN AS A "LIVING WILL". You can designate that under certain incurrable or irreversible medical conditions what you want done. SURROGATE DECISION MAKING - created by the Texas Legislature in 1993. Read the Texas Health and Safety Code Section 313 for details.
Guardianship is a court order that puts property, fiances and the wellbeing of a person into the hands of another entity. This incoudes humans, associations and corporations. Who needs a guardianship? People that are judged to be menatally incompetent or are physically unable to care for themselves. This incudes minor children (under the age of 18). There are several types of guardianships. The person appointed to take care of the person MUST to the court. The guardian appointed by the court is held to a high level of responsibility as dictated by the court. Guardianships are controlled byt he Texas Probate Code. All Texas codes are available on-line for free. Just go to any major search engine and type in either "Texas Probate Code" or "Texas Codes" and they should pop up. You need to read Texas Probate Code Section 601 for definitions. Read Section 602 for a description of the policy and purpose of a guardianship. A guardian is the person appointed by the Judge to serve as the legal representative for an incapacitated person. A Judge must find the person is "incapacitated" in order to appoint a guardianship. There are temporary guardianships and permanent guardianships.
If you have lived in Texas for at least 6 months and in the same county for 90 days, then you can file for divorce in Texas. The only problem that might arise if you moved here after you separated and your spouse never has set foot inside the State of Texas. If your spouse has never been to Texas, you need to hire an attorney and discuss the options available to you. It's too complicated here to go into detail. So: If you are from Louisiana, New York, Brazil, England or Russia, if you have lived in the State of Texas for 6 months and in the same county for 90 days, Texas has jurisdiction to grant you a divorce. However, if you move every 60 days to a new county but they are all inside the State of Texas, stay put for 90 days in the SAME county and then file for divorce.
Friday, August 17, 2007
Family law is a state specific type of law. Each state is authorized to make their own laws regarding divorce, paternity, etc. The State of Texas does NOT care what the State of California does! Don't waste your time researching other states laws if you are involved in a family law case in Texas. Only the U.S. Supreme Court can interfere with Texas law. The most important case that comes to mind regarding the U S Supreme Court and state courts is the grandparent case that is commonly referred to as Troxel. It limited grandparents rights for most grandparents.
I would not set foot in the Office of the Texas Attorney General without an attorney. It's cheaper to do it right the first time instead of trying to fix "the mess" later. You can visit the TX A G website at http://www.oag.state.tx.us/ Their website has lots of information about child support. Remember, if you want DNA testing on any child, you need to ask for it at the very first appointment. The TX A G has great pricing on DNA testing since they are the biggest user in Texas. Once you have been declared the "father" of a child, you are the father -- even if you later do your own DNA testing and determine that the child is not your biological child. If in doubt, demand DNA (genetic) testing. It's very easy and painless -- a mouth swab is all it takes.
In Texas, there is no court ordered child support after the child turns 18 and/or graduates from high school, whichever is later. No Texas Judge can order a person to pay college expenses for the "child"! Technically the moment the child turns 18 they are now an adult. Of course, I suspect that 99% of the parents will disagree that their child is an adult, but that's the law in the State of Texas. If you need help paying for college, I highly recommend SANDRA NEWTON of the College Resource Center located close to Loop 610 and San Felipe. The College Resource Center -- 1001 W. Loop S., Ste 660, Houston, TX 77027713-783-7575; fax 713-621-0034. Be sure to tell her that Fran Brochstein sent you! Sandra worked with my daughter before beginning her freshman year in high school. Sandra was a great motivator for my child. We talked to approx. 3 other people but my daughter preferred Sandra. Since she and Sandra were going to work together, I let her choose the person she felt that she related to the best. Also, hiring Sandra avoided lots of arguments at home. Sandra met with my kid on a regular basis and they discussed her future plans. Her senior year of high school they met a lot - especially when college applications were due. I did not have to monitor deadlines since that was part of Sandra's job!!! My child got 100% of her undergrade program paid for with scholarships and grants. She even received money for books and even housing expenses her senior year of college. Sandra Newton is top notch and I highly recommend her.
The child can decide the moment he/she turns 18. If the current visitation plan does not work, then it needs to be modified. If one parent is harming the child (physically abusing, not feeding, calling bad names, etc.) you will need proof. You need witnesses with personal knowledge. What is personal knowledge? Briefly, the person can only testify to what they personally experienced - heard it, saw it, tasted it, smelled it, etc. So if the child came home with bruises, the neighbor can testify to the bruising but not what the child said about how the bruises got on his/her body. School teachers make excellent witnesses because they are impartial and only want what is best for the child. School records are presumed accurate. So if there are many tardies on the days the other parent has the child or many unexcused absences when the parent has the child, that is powerful evidence. If the child comes to school dirty, tired, stressed, unprepared only on the week-ends when they visit the other parent, you have some powerful information for the Judge to hear. A professional mental health expert that is willing to testify in court is also powerful. If things are bad and you need some more evidence, then asking the Court to appoint an amicus attorney to meet with the parents, child, people with personal knowledge and review doctor and school records might be the way to go.
Wednesday, August 15, 2007
To report suspected elder abuse call 1-800-252-5400 and speak to a Texas Dept. of Family and Protective Services (aka DFPS) employee. This is the statewide intake for all complaints regarding the elderly. Reports may be made anonymously. However, be aware that an intentionally or maliciously false report is a crime. Mistaken reports are NOT a crime unless they are made in bad faith. Of course, if it's an emergency dial 911. The National Center for Elder Abuse is 1-800-677-1116 or www.elderabusecenter.org Elder abuse may be neglect, abuse or financial exploitation of anyone elderly or disabled. It is illegal. My advice -- if in doubt -- make the call. The best news is that you might be wrong! It might be a "wake up call" for the family and/or friends of the person. People that take advantage of the disabled and elderly will hopefully be repaid in-kind 10 fold!
My daughter turned me onto Craig's list. I did not believe how many Houston attorneys are advertising on that site. I also found an ad by an individual that proudly advertises that he/she is not an attorney but will sell you forms based on their "experience". I emailed the person to make them aware that this is a felony according to Texas law. One Harris County family judge takes great pleasure in turning in all such people to the District Attorney's office. The District Attorney will prosecute such people. They are truly doing a disservice to people that they proport to help. Of course, I don't do my own dental work! If I have a dental problem, I hire a trained dentist. As an attorney, whenever I have a legal issue in my life I hire an attorney to help me. Why? Because I'm personally invested in my life and I need an objective and a person who is not emotionally involved to help me and guide me.
I now advertise in the Indigo Sun, Centerpoint and Natural Awakenings monthly publications. Centerpoint finally convinced me to change the ad that I've run with them for the past year. I added a photo. According to the advertising rules of the State Bar of Texas (as I "think" that I understand them), if I basically have an ad similar to my business card, I am not violating any rules. I've seen numerous attorney ads in Houston publications that I KNOW violate numerous State Bar of Texas ads. Believe it or not, I have to include "Houston" in my ad according to the State Bar, even though Centerpoint is only geared for a Houston audience. Why? I have no idea. If you see my ads, please send me your comments - good and bad. I am truly interested in your opinion!
My ad advertising DO IT YOURSELF FAMILY LAW KITS is now running in the inner loop edition of the Greensheet. I hope this ad will reach people with limited income means that would like an inexpensive alternative to hiring an attorney. Again, I meet with each potential purchaser and make sure that they understand what they are purchasing. I also will NOT sell the kit to anyone if I do not think it will work for them or if I think it is inappropriate for their situation.
Check out my ad advertising DO IT YOURSELF DIVORCE KIT beginning on the "back page" of the Houston Press this week. I've been a Houston Press reader for years but never advertised with them. I think their readership - inner loop folks that enjoy an alternative news source might find my ad interesting.