Michelle O’Neil:
Hi I’m Michelle O’Neil with O’Neil Wysocki and we are
going to present to you today the webinar on the basics of dads and custody
in Texas. So this webinar is approved by the Texas Bar Association for
two hours of CLE credit with a half an hour of ethics credits. So we're
real excited to present this to you today. Keep in mind that this is for
educational purposes only. So this is intended for the continuing legal
education for lawyers. For those of you out there who are not lawyers
that might be tuning into our program, welcome. However, remember that
anything that has to do with your specific situation you probably want
to talk to a lawyer about so that you can get specific advice tailored
to you. Do not rely on anything that we say in this program as specific
advice tailored to your situation because your situation very well could
be different. This is for educational use only by a whole bunch of lawyers
that are out there watching. So welcome to our program. We're going to
get started. We're going to do this in four sections of approximately
30 minutes each. And I'm joined today by Michael Wysocki, my partner with
O'Neil Wysocki and by Ryan Segall. So we, and Ryan is also an attorney
at our firm. So we have come together today, the three of us specifically
to talk about dads and custody, based on some recent cases that we've
had and based on some lessons that we've learned on those cases. So we're
real excited to present this to you today. Be sure to comment a lot in
the comments and give us a lot of feedback. We'd love to hear from you.
So let's get started. We're going to start with section one on the basics
of a suit effecting the parent child relationship. We'll be right back.
All right, welcome back. We are going to start with the basics of a suit
affecting the parent child relationship. My name is Michelle O Neil with
O'Neil Wysocki. I'm joined today by Michael Wysocki, my partner, and by
Ryan seagull with also an attorney at our firm. So let's get started on
the basics of a suit affecting the parent child relationship. So Ryan,
why don't you kick us off. Tell us what is a suit effecting the parent
child relationship?
Ryan Segall:
Oh, you got a kid, you got a SAPCR.
Michelle O’Neil:
So tell everybody what a SAPCR is, just in case they don't know.
Ryan Segall:
Suit affecting the parent child relationship and in it there are three main categories that I break it down to with every client. So you have conservatorship. And the way I described that is decision making regarding the child. Next you have terms of access and possession, which is who gets the child when and lastly you have child support. How much is it going to be paid for the child?
Michelle O’Neil:
Okay. So Michael, you want to talk about the two different types of conservatorship?
Michael Wysocki:
Sure. In Texas we have particularly two times. The one you see most often
awarded by the court is what's called joint managing conservatorship.
A joint managing conservatorship under our statutes is presumed to be
in the best interest of children. And what a presumption is that legal
presumption, which means when you walk into the courtroom the judge already
has it ranked number one on his list, that joint managing conservatorship
should be what should happen. Therefore evidence would have to be put
on to convince him that or her that joint managing conservator should
not be appointed. A joint managing servers are just like it sounds, rights
and duties are typically joint or shared fairly equal. Sometimes courts
will deviate from that and award certain parents exclusive rights or shared
rights to be made jointly by the parents such as medical decisions. Particularly
invasive medical decisions such as if the child, we're going to have a
surgery or right to designate a therapist or a psychologist for the children.
Sometimes the court will make that right, a joint or exclusive to one
parent or another. Also under joint managing servers, you often see the
courts designate a primary conservator. You'll often hear from other attorneys
that, well this case is about who the court's gonna designate the primary
conservator, which is oftentimes a contested issue when both parents believe
that they are best suited to be named that primary conservator. The second
type of conservatorship that you see is what's called sole managing conservatorship.
Under that you have a sole managing conservator and a possessory conservator.
Naming on this one's a little bit backwards because the sole conservator
is the one that has the sole rights and duties to make the decisions with
regard to the children of note with regard to sole managing conservatorship
is that the court cannot put in place a residency restriction restricting
that sole managing conservators residents to any particular geographic
area, which is oftentimes significant for people seeking sole managing servers.
Additionally, a sole managing conservator, in order to obtain sole managing
conservatorship, there's a number of prongs that have to be me that are
specifically listed out in the family code most often requiring the court
defined family violence or something along those lines in order to be
able to grant it. The non sole conservator in a situation like that is
named the possessory conservator, which is much like it sounds the parent
who simply has possession and access on occasion but does not necessarily
have any rights and duties.
Michelle O’Neil:
All right. So let's talk about when you said that it takes like a finding
of family violence or whatever to get to the sole area. What are some
things that you've seen that have caused a judge or a jury maybe to go
into a sole custody, either of you guys, into a sole custody situation
in a way from the presumption of joint? What are some of those kind of
big ticket items that might cause it to flip in that direction?
Ryan Segall:
For me I guess the most recent one that I had was a situation in which
the mother was accusing my client of sexual abuse of the child and those
allegations turned out to be false. And the judge
Michelle O’Neil:
and didn't she make several allegations that were false?
Ryan Segall:
Correct, she was she made over a period of time, I believe is probably
four or so over about a year span. And the judge upon once it was proved
that she violated the court's order, which was specifically saying do
not talk about these allegations with the child, she violated that court’s
order. And the judge immediately at that point said she is now a possessory
conservator. My client was then awarded, as Michael explained, sole managing
conservatorship and was given the ability to make to have all those rights
and duties for the child.
Michelle O’Neil:
And the way I like to say it is that it takes a big ticket item, like drug
abuse, alcohol abuse, some sort of abuse of the child, domestic violence.
But the code actually doesn't require it to be absolutely that high. So
what are some times when it hasn't been something that obvious?
Michael Wysocki:
So I've seen a case where one parent elected to move a significant distance away. And in the case that I saw the parent moved, I believe to Nevada, to take a professorship position and the court in that case found that given the party's inability to co-parent when they lived close to each other compounded by the now new distance between the two parties, that the court felt that in that circumstance the children needed a sole decision maker and appointed the local parent, the sole managing conservator, that way they didn't have to make, I guess, long distance decisions with the other parent. And so you're right, you point out an important fact that it's not necessarily limited to family violence or bad acts or drug or alcohol abuse. That's right. And so it can be something as simple as the court feels that the parties cannot jointly make decisions together and in that case, it just helped that there was an additional factor of distance between the parties.
Ryan Segall:
So Michael, in that case, was there a prior order?
Michael Wysocki:
There was a prior order, this was a modification and the prior order was joint managing conservators.
Michelle O’Neil:
I've seen cases where people just chronically can't get along. And I think
that's enough under the statute, just proving that they chronically fight
over the color of the sky. You know? What we see, I think more often is
that judges will leave that maybe as a joint conservatorship because both
people care a whole lot and then allocate rights and duties. But I have
seen judges that get so tired of the fighting that they just go over into
sole and possessory territory because of the chronic fighting. And so
I think that's enough, you know?
Ryan Segall:
Right and one thing that's always taken consideration is that the judges
do have a lot of discretion on those things. So, like you're saying, I
mean, they might just say, okay, joint managing conservators, but at the
same time give one party, you know, 9/10 rights and duties, something
like that. And in which case it has almost the effect of being a sole
managing conservatorship but just purely entitled as joint management.
Michelle O’Neil:
Right, so that brings up a good point that I always try to make whenever
I'm meeting with a new client is this distinction between the title versus
the rights and duties. And so the title, I always tell clients like they
could call you mommy and him daddy or you know whatever, and they could
call you the King of America. The title itself doesn't really matter because
it's followed up by these rights and duties that are what matters. And
so with joint custody, it's not necessarily like when people think of
joint custody, I think lay people think of 50/50, like time. But when
we're talking about the title and the rights, it's not necessarily 50/50
time. So with a joint custody situation, we think of the quote unquote
primary parent that from a technical standpoint is the parent who has
the right to determine the geographic restriction. So Michael talk for
a minute about why that geographical restriction is, why that primary
right is so important in a joint managing conservatorship situation.
Michael Wysocki:
Sure. So the right to determine the primary residence of the children,
what oftentimes you'll hear other lawyers and or courts referred to the
primary parent, that parent most often, or what I oftentimes hear courts
say, the significance of that parent, is designating the children's school
or designating the children's primary abode, primary residence which oftentimes
again dictates what school they go to which if you've handled enough of
these cases, you know, is oftentimes a significant issue between the parents.
Whether parents have a particular affinity for a certain public school
or whether a one parent believes and to the disagreement of the other
parent that the children should attend a particular private school. That
is often a hotbed issue, thus making that designation very important.
Michelle O’Neil:
And the being the primary parent also kind of dominoes into some of the
other issues regarding parenting time as well.
Michael Wysocki:
Oftentimes the primary parent is the parent who would receive child support
and oftentimes the primary parent is the parent who has the edge with
regard to possession and access. More than 50% of the time.
Michelle O’Neil:
Yup. And so then making this distinction, we've talked for a minute about
the titles. We've talked about some of the rights and duties. There's
also the issue of parenting time. And so just because your joint managing
conservators doesn't necessarily mean you have 50/50 parenting time. So
let's talk for a few minutes about parenting time. Ryan, you want to talk
about like the standard schedule and kind of what people expect from the
standards in the Texas law?
Ryan Segall:
Sure. So Texas law has a presumption that a standard possession is in the
best interest of the child. Standard possession is kind of a rubber stamp
that judges will typically put on a possession order. As Michael was saying,
the primary parents has most of the time, typically most of the time,
and then the other parent will receive some sort of possession schedule.
Standard possession schedule in state of Texas is first, third and fifth
Thursdays from six o'clock on Friday through six o'clock on Sunday. Then
you have Thursdays from six to eight during the school year, you have
some extended time during the summer, which usually 30 days. And then
you split weekends or excuse me, split holidays such as Christmas, Thanksgiving,
spring break. Right?
Michelle O’Neil:
And so when people, when lay people kind of think about like possession
periods, like, you know, those are kind of what, what most people think
of as, as the standard schedule in Texas. Right? Um, and then there's
some extra rules if you're over a hundred miles away from each other.
So what are those, what chains?
Ryan Segall:
So over a hundred miles, those week days on Thursdays typically, those
are going to be removed. And so what the courts are saying is we get that
there's a big distance. So what we're going to do is just kind of glob
the possession times into bigger chunks, if you will. So instead of those
Thursdays, the person with a possession schedule is going to get either
first, third and fifth weekends or they have the option to do one weekend
of their choosing as long as they…
Michelle O’Neil:
So it could be a second weekend a month.
Ryan Segall:
That'd be a second weekend, as long as they give 14 days written notice.
In addition to that, instead of the 30 days in the summer, they have 42
days in the summer. And so that is, they're going to get bigger chunks
of time there. They're also going to get every spring break. So those
are going to be the differences when parties are further apart. So when
Michael was talking about the geographic restriction and what not, that
geographic restriction usually takes place and is in place while the parties
are in the same vicinity. But let's say a father gets a new job in, I
don't know, let's California or something that geographic restrictions
typically going to be removed but
Michelle O’Neil:
if the other parent moves….
Ryan Segall:
But they're still going to have that possession schedule in place.
Michelle O’Neil:
And then we have a lot of people, a lot of dads that are wanting 50/50
right now, but the family code doesn't really have a provision in it for
50/50. So how do we get from Texas family code has this standard schedule
in it to moving to a place where dads are requesting 50/50 and receiving it?
Michael Wysocki:
Correct. Yeah, so what you've seen over the last a significant number of
years, it's not anything recent. It's been a change that's taken place,
gosh, for at least over the last 20 years, is a shying away of what was
often referred to as the tender years doctrine or a kind of a mentality
or doctrine where parents would favor, or I'm sorry, where courts would
favor mothers as the primary parent with regard to young children. Particularly
infants, adolescents and what you've seen is a systematic shying away
from that ideology. And then what you've also seen is what I would call
more of a stepping up of fathers, as women have, as we all know, taken
a much more significant and active role in the workforce. You see fathers
also taking a much more significant and active role in the home and/or
child rearing aspect as well. And so courts have been basically forced
to take recognition of that, it's not what you had back in the twenties
or thirties or forties or even fifties anymore. You definitely have circumstances
here in the United States where fathers are taking a much more active
role, which has led those fathers to seek things such as equal rights
and duties, equal access and possession. And the courts, I've seen courts
balanced that in a number of ways. Sometimes the courts will, with regard
to the possession anyway, we can talk about the conservatorship aspects
later. But with regard to possession giving if the father had a standard
possession schedule, perhaps giving him an extra day such as Mondays or
Wednesdays on top of the standard Thursdays. Or you hear things such as
a 2-2-5 possession schedule or a 2-2-3 possession schedule or you'll see
week on week off possession schedules, all of which balance out to approximately
a 50/50 schedule for the parents, all of which have become a much more
commonplace and you see being awarded a lot more.
Michelle O’Neil:
And I think from my perspective, one of the keys to what's going to happen
with the parenting time schedule is knowing the judge. I can think of
one judge that we routinely practice in front of that wouldn't give more
than a basic standard schedule, much less any of the even little adjustments
that most judges routinely give, much less at 50/50. I don't think this
one judge is ever given a 50/50, and affirmatively states he would never
give a 50/50 and then we've got other judges who almost start out in the
beginning of a case with a mindset of a presumption that parents are equal
and routinely grants equal. So what role then does the judge play in kind
of helping those decisions?
Michael Wysocki:
Sure. Well, oftentimes, you know, I'd tell my clients, look, a good lawyer
knows the law, but a great lawyer knows the judge in the sense that a
great lawyer understands how the judge thinks ou know, I started my practice
out in East or out in West Texas, and I knew the judges, I knew where
they lived, I knew their spouses, their children, things like that. And
so I kind of knew what made them tick. And that's what you would hope
to find in a lawyer when you hire a family law attorney, especially when
you're seeking things such as conservatorship access and things related
to possession. You want your lawyer to know how the judge feels about
certain things and oftentimes with regard to these 50/50 schedules, it
depends on what ideology the court subscribes to with regard to that,
because there is research out there that suggests that with regard to
a 50/50 schedule that it creates a circumstance where a child doesn't
really have a quote unquote home. In other words, the child feels like
that the child doesn't have a primary residence that the kid, sometimes
I live at mom, sometimes I live at dad, but I myself don't have a home.
And so there's a lot of literature out there on that. And then of course
there's a lot of literature out there as well that suggests that that
split parenting time is as good as it gets when you have a situation where
parents are divorced. And so just you need to know what type of ideology
your judge subscribes to.
Michelle O’Neil:
Yeah. So you mentioned, or one of y'all mentioned a child under three.
So Ryan, what’s the deal with possession of a child when a child
is under three? Is there a standard schedule?
Ryan Segall:
It's very discretionary. It's not, there is no standard schedule. And going
off what Michael said, it's really has to deal with who you're in front
of, which judge you're in front of. I mean depending on which judge I'm
in front of, if I'm dealing with a child under three, my advice to my
client might be wildly different depending on who we're in front of because
you can go off that. I mean some judges, I've seen some judges that want
to limit the time that a dad might have and might say we're going to give
you a few hours a week while this child is under six months old or something
like that. I was just in court about a week or so ago and the child was
two months old and the judge gave my client essentially more or less a
modified standard possession. So it really depends on that judge you're
in front of and what that judges mindset is because they have a whole
lot of leeway under the family code because the family code just says
standard possession for over three, but under three prediscretionary.
Michelle O’Neil:
And I've seen judges that'll grant standard possession for an infant. And
I think that a lot of judges, there's a big distinction with a lot of
judges between, like you said, a two month old, like a child under six
months old versus the six months to like 18 months and then 18 months
to three years. I mean there's a lot of, I mean a child is very different
at two months old than a child is at three years old. So I think there's
a lot of that that look at those children very decent.
Ryan Segall:
Yeah. And a lot has to go with the individual facts for that case because for instance, if the child is breastfeeding or not, I mean that's going to be a big factor in what the possession schedule is.
Michelle O’Neil:
Although I have some judges, even with a breastfeeding infant who have
said, you know, that's why they make pumps and that's why they have alternatives
for breastfeeding. And I've seen judges that make moms pump and give the
baby in the pumped milk to the dad for possession periods. Have you ever
seen a judge give 50/50 on an infant?
Michael Wysocki:
I don't know that I have, but I have seen, like Ryan first year, I've seen
some courts provide possession schedules that are pretty darn close.
Michelle O’Neil:
I actually have seen a judge give 50/50 on some breastfeeding infants,
on two twins, but the parties had a nanny, had a day nanny and a night
nanny. And so the day nanny and the night nanny kind of just went with
the kiddos and you know, in between the parents and then the judge in
that case did a nesting in the house, which means the children stayed
in the house, the parents moved in and out. And so I think that it was
designed by the judge to preserve as much of the status quo for the children.
But you had a very active father in that situation. I think the more active
the father, the more that you can show that an activity that the father
has been involved at that point. I mean I think that you're more likely
to make that happen.
Ryan Segall:
Right. And just going off one thing, cause I know that it came up in a
case of mine within the last year or so, but the standard possession schedule
itself, it's roughly from the research I've seen, I haven't done the counting
myself, but it's about a 57/43 split. So when we're shading towards the
50/50, I always tell my clients, keep that in mind because you know, when
they want these joint managing conservatorship and I say, well hold on.
It really what we're talking about is possession time. So let's talk about
what their difference really is here. And so that's one thing to keep in mind.
Michelle O’Neil:
Yeah. And I think that's an important point to make as we kind of go into
the next three sessions of the webinar, is that we got to know what we're
fighting over, right? If you're going to have quote unquote a custody
case, I'm gonna sue for custody. You know, what are you really fighting
over? And you know, you're fighting over maybe the right to designate
primary, you're fighting over maybe parenting time. Or am I going to have
less than 50/50? Am I going to have more than 50/50? Maybe you're fighting
over I'm better at making certain decisions than the other parent but
it's easy for lay people to say I'm suing for custody. But I think what
makes a difference is kind of parsing that out into what are we really
fighting over? So let's talk, we've got about five minutes left on this
session. Let's talk for a minute about how we go about fighting. So jury
trial and non-jury trial, Texas interestingly is the only state in the
country that allows jury trials in custody cases. But that's not necessarily
the grand thing that everybody thinks it is. Right? So Michael, talk about
what that means in Texas. When are you entitled to a jury trial? And what
still does the judge get to decide?
Michael Wysocki:
Sure. So in Texas in a conservatorship case, you can request a jury to
make determination of whether or not, as we discussed earlier, the parties
should be joint managing conservators or whether there should be a sole
managing conservator. And if the jury believes the parties should be joint
managing conservators, then the jury can determine which one should be
primary. And the jury can determine a what residency restriction, if any,
should be put in place. And so those are the things that a jury can decide
in our state related to conservatorship.
Michelle O’Neil:
Which means a judge gets to decide to everything else, right? So that means the judge gets to decide who's going to decide where the kiddos go to school. Judge gets to decide who's going to make medical decisions.
Michael Wysocki:
And most importantly possession.
Michelle O’Neil:
And the judge gets to decide what the possession schedule is going to be, even if the jury gives a dad, the quote unquote primary designation, the judge still gets to decide the possession schedule.
Michael Wysocki:
And child support too, right?
Michelle O’Neil:
We haven't talked much about money. I'm gonna do an entire webinar in August related to child support with two of our lawyers here at the firm that are child support experts. So we're looking forward to that, but this is really more about custody, not so much about money. So I'm not gonna focus too much on that unless you think we should. So how do you, like we're getting kind of more into strategic, aiming toward the second session now talking about some strategies, but taking this kind of basic law, how do you kind of start looking at making those decisions? Do you go to a judge? Do you go to a jury? A judge is still deciding temporary orders. So how do you kind of start making those decisions?
Michael Wysocki:
Well that decision is always significantly fact intensive and, in my opinion,
it's dependent upon your jurisdiction as well because your jurisdictions
can, you can oftentimes figure out the ideology of your jurisdiction based
on, for instance, voting. We all know that Dallas is a significantly blue
county, whereas Collin County has for a significant period of time, been
a very red county and you know that based on those things that people
in a, for instance, Collin County might not find amusing versus things
that people in Dallas County may not be so stressed out about. For instance,
use of recreational drugs. Dallas County, you know, there's a significant
push, for instance, of legalization of marijuana, not so much a significant
push in Collin County for legalization of use of recreational drugs. So
if you have a parent who's doing drugs and you're in Collin County and
you feel that perhaps your court has not taken that issue as seriously
as you want them to. You might consider requesting a jury because the
jury in that county, in that jurisdiction, may take that issue much more
seriously than your judge did at temporary orders. So that might be something
you take into consideration.
Michelle O’Neil:
Do you also find in representing fathers though that the more conservative
counties are or are not also more conservative in the traditional family
role models? Like the mom should have custody
Michael Wysocki:
significantly, significantly so. For instance, I had a jury trial in Collin
County a handful of years back where we had fairly significant bad acts
on the part of the mom. We weren't necessarily, our main goal wasn't necessarily
to obtain a conservatorship. Our main goal was to obtain a residency restriction
because our judge had allowed that mom to move to New York and we had
asked for the jury because, and not only are juries like that to use that
they may prefer mothers to be the primary over fathers, but they also,
being conservative are much more prone to keep the family together. And
so in our case, we knew that we asked for a jury and the jury did implement
a residency restriction requiring mom to come back to Texas, which is
exactly what we wanted.
Michelle O’Neil:
All right, well that is about our time on the first session. I would like
to let you know that we have a book called what you need to know about
divorce in Texas. That covers a lot of these basic issues. So if you have
questions about this, this is available on Amazon for purchase. You can
just go over there and purchase it. It's $10 and read all about all the
basics of a Texas divorce law. It also has chapters about custody, child
support, whatever. So we're going to take a little break and we'll come
back in just a few minutes and we're going to move on to the second session
of our webinar, which is strategies before a suit is filed. We'll be right back.
Michelle O’Neil:
If this is a webinar that's aimed at attorneys, this is for continuing
legal education. If you're out there watching this webinar and you're
not an attorney, we welcome you to watch it. But remember that we are
not giving you any specific legal advice. We cannot comment on any specific
case or situation without knowing all the facts. So if you need legal
advice, this webinar is not a substitute for legal advice. Please, please
seek the advice of a lawyer as to your specific situation and get specific
advice to that. Because if you rely on just what we're talking about here,
we're being general, we're talking about general legal principles that
may not actually apply to your situation. This is for continuing legal
education only and we cannot create an attorney client relationship just
through the video camera. Okay. Thanks.