Dallas Divorce Law Blog by Michelle O'Neil

I am often asked whether court’s still presume that custody of a child should go to the mother as opposed to the father. The short answer is no. Courts are not permitted to consider the gender of the parent (or the child) in making decisions regarding custody. Generally the best interests of the child are the primary considerations the court assesses in determining custody issues. The best interests of the child are frequently referred to as the Holley factors because of the case they were set forth in.

Historically, gender played a role in assessing parental fitness. This role led to the development of the “tender years doctrine” which in essence stated a child should not be separated from his or her mother. Early records of the tender years doctrine date back to the mid 1800′s and needless to say there have been dramatic shifts in socio-political viewpoints since that time. The trend towards moving away from the mommy presumption and tender years doctrine gradually made its way in to Texas Case law and eventually was codified in the Texas Family Code. According to Section 153.003 of the Texas Family Code, the court cannot consider the marital status or gender of either parent in making decisions regarding custody.

This shift away from the tender years doctrine coincides with the shift towards parents sharing their rights and duties equally. In fact, there is a possession schedule set forth in the Texas Family Code that applies in most cases (in the absence of a showing why it should not) which effectively gives parents equal rights, duties and almost possession periods of their children.

Despite the shift away from the mommy presumption, there are some judges who retain an “old school” mentality and still believe that the child should remain with his or her mother. This is where hiring an experienced divorce attorney is critical, because if your case happens to land in a conservative judge’s court, then your attorney will have to clear the mommy presumption hurdle.

Cincinatti Enquirer

An Ohio appeals court has upheld a judge’s order barring the mother of a 9-year-old girl from smoking around her daughter, the Cincinnati Enquirer reports. Legal experts say that the issue of parental smoking is an increasingly common one in child custody disputes. One lawyer suggests a simple rule of thumb: “parents who wish to retain custody of their children should not smoke in front of them.” Janice Morse, The Cincinnati Enquirer 11/08/2009

In April 2008, Victoria’s paternal great-grandmother, Marilyn Anderson, objected to the child’s mother, Racheal Hill, smoking around Victoria during visits. The child returned home “smelling of cigarette smoke as a result of Racheal smoking in her home and car,” court records say.

Eight months later, the court ordered all parties to protect Victoria from second-hand smoke; the appeals court, which oversees an eight-county area, upheld the smoking ban Oct. 26.

Disputes over parental smoking have been cropping up in family-court cases nationwide, legal experts say, and the cases highlight two competing interests: A parent’s right to smoke versus a child’s right to breathe smoke-free air.

Courts appear to be deciding such clashes based on the “best interest of the child,” rather than whose “rights” win out, Kansas lawyer Jeanette Igbenebor wrote in a 2002 article, “Smoking as A Factor in Child Custody Cases.”

The article recommends: “As a simple truism, parents who wish to retain custody of their children should not smoke in front of them.”

Action on Smoking and Health, a non-smokers’ rights group in Washington, D.C., says courts in at least 18 states have ruled that “subjecting a child to tobacco smoke is a factor which should be considered in deciding custody.”

In the Warren County case, even with no evidence that Victoria suffers specific reactions or health issues from exposure to smoke, the court ruled that a smoking ban was in the child’s best interest.

To reach that conclusion, the court did something unusual. It “took judicial notice” – without anyone presenting proof in court – of an “avalanche of authoritative scientific studies” that say second-hand smoking poses risks to children.

Taking judicial notice is fairly unusual, said Marianna Brown Bettman, a University of Cincinnati law professor.

“This could be viewed very broadly in future cases,” she said. “If you don’t have to prove that smoking is harmful to your child specifically…then that could become kind of a general order in almost any case.”

Bettman wonders: “Is this going to be now a general standard that’s fair to raise in a disputed child custody case?”

Dayton-area attorney David McNamee, who represents Victoria’s great-grandmother, thinks it should be.

McNamee, who devotes about 90 percent of his law practice to family-court issues, said smoking has become an issue in more child visitation and custody cases during the past five years or so.

Mitchell Karpf, a Florida lawyer who chairs the American Bar Association’s Family Law Section, predicts the smoking issue could evaporate from the courts in coming years. As pressure to quit smoking increases, the number of smokers dwindles, he said.

In the meantime, courts likely will treat smoking “no differently than any other health hazard to a child,” Karpf said.

In Ohio, no-smoking rulings date to at least 2002, when the state Supreme Court upheld a Lake County judge’s decision prohibiting anyone from smoking around a healthy child. That judge acted on his own initiative.

Often, parties agree they shouldn’t smoke in front of kids, McNamee said. McNamee says that he is a smoker, but has never lit up in the presence of his 8-year-old daughter.

Andrea Ostrowski, a Springboro lawyer who represented Racheal Hill, said the case is about a bigger principle than her client’s desire to smoke.

“She doesn’t necessarily mind stepping out of the house (to smoke) when the child is there,” Ostrowski said.

Rather, Hill objects to the court’s “intrusion into her home,” regulating even a legal activity such as smoking, Ostrowski said. The court ruling also limits where Hill can take her daughter, such as to the home of a friend who smokes.

Ostrowski is concerned that the smoking ban “can be used as leverage” against Hill during future visitation and custody proceedings. Hill could be hauled into court on the mere suspicion that she smoked around the child, facing a contempt charge that could bring jail time, Ostrowski said, adding: “How do you prove that you didn’t do something?”

Ostrowski also is concerned that custodial parents could cite this case as an example and try to get courts to enforce limits on other legal activities of non-custodial parents. “The court has opened that door,” she said.

The advantage that children get from living in two-parent families may actually be due to family stability more than the fact that their parents are married.A new study finds that children who who are born and grow up in stable single-parent homes generally do as well as those in married households in terms of academic abilities and behavior problems.

The study appears as a chapter in the new book “Marriage and Family: Perspectives and Complexities” (Columbia University Press), which Kamp Dush edited with H. Elizabeth Peters, professor of policy analysis and management and director of the population program at Cornell University.

Read about the story here.

I am involved in several family law cases in the Dallas area with LGBT parents suing for conservatorship or visitation/possession rights to their children or their former partner’s children.  One of my clients referred me to this website as a resource and I thought it was important to share it with you:  www.colage.org  Here’s the purpose of the site, as it lists:  “COLAGE is a national movement of children, youth, and adults with one or more lesbian, gay, bisexual, transgender and/or queer (LGBTQ) parents. We build community and work toward social justice through youth empowerment, leadership development, education, and advocacy.”  The website also provides a book list for LGBT parents, which I thought was interesting.

You may have read  recently about David Goldman whose wife went to Brazil for vacation with their son and then refused to bring him back.  She later divorced him in Brazil and remarried a Brazillian lawyer.  Recently the wife died, leaving the son with the new stepfather who refuses to return him to the Father in the U.S.  David went to court in New Jersey and got orders requiring the return of his abducted son to the U.S., but they have been ignored.

In this situation, David relies upon the government of Brazil to honor its commitment to the Hague Convention treaty, which sets out the procedure for resolving international custody disputes.  Hague Convention was adopted to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the nation-state of their habitual residence, as well as to secure protection for rights of access. Its purpose is to deter international child abduction and to provide a mechanism for the prompt return of abducted children to their home countries where the courts can resolve the custody issue on its merits.

The Hague Convention applies only among contracting states and is available only when a child is wrongfully removed from a signatory country and retained in another signatory country. The United States ratified the Hague Convention in 1988, and the Convention was implemented by the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq. (2000).

Brazil signed on to the Hague treaty on December 1, 2003, according to the Department of State’s website.  The process, according to the State Department is this:

Hague applications are submitted to the U.S. Central Authority for forwarding to the   Central Authority in Brazil.  The Brazilian Central Authority examines the application and determines whether they will accept it.  Once the application is accepted, the Central Authority with the aid of INTERPOL determines the location of the child.  Once the location of the child and taking parent is known, the Central Authority attempts to mediate an agreement between the parents.  If an agreement is not reached, the case is forwarded to the Attorney General’s Office (AGU), who files the case with a federal court.

The petition is assigned to a federal judge within 48 hours of its filing with the court.  The court notifies the taking parent and summons their attorney to contest the petition. The AGU, acting on behalf of the Brazilian Central Authority as well as the left behind parent, then has an opportunity to respond to the taking parent’s arguments.  After both parties have been heard, the Judge submits the case for examination to a representative of the Ministerio Publico. 

The Ministerio Publico presents a formal opinion to the Court in all cases involving minors.  In Hague abduction cases, the representative will submit a report recommending either the return of the child or that the child should remain in Brazil.  In Federal cases, the representative will be a Procurador da Republica (Public Prosecutor).  If the case is filed in the local family courts, the representative will be a Promotor (State Public Prosecutor).  The Judge has complete independence to rule on the case and does not have to follow the Ministerio Publico’s recommendation in his decision.  At this stage the Judge may request additional documentation or evidence and hold a hearing with representatives from the AGU and Central Authority.  The AGU continues to follow the case, acting on the left behind parent’s behalf throughout all legal procedures until there is a final decision. There is no time limit for a verdict to be issued in the case.

Once the other biological parent passed away, David should have automatically seen the return of his son.  That he didn’t is a tragedy.  If there is an consolation for David, it must be that at least Brazil has signed on to the Hague treaty, providing remedies for him.  There are many parents whose children have been abducted to countries that have not agreed to the Hague treaty, leaving the parents with very few remedies and very few allies, fighting for their children under the laws of a foreign country.  Examples of countries that do not subscribe to the Hague treaty include Cuba, Haiti, Iran, Saudi Arabia, Japan, Pakistan, Thailand, Pakistan, Yemen.  For a complete list, check out the State Department’s map of countries. 

My heart goes out to all parents dealing with issues of international child abduction.  It is a very hard situation.  All parents who regularly see their children should be grateful and remember the tribulations of these parents when dealing with their custody issues.  Maybe they seem more trivial in comparison?

For some parents, the Standard Possession Order does not fit with their situation or their children. Parents may either agree that an alternate schedule is in the best interest of the child, or a court may order a different schedule. For example, some parents choose to implement a plan where the child spends one week with one parent and the next week with the other parent. Other parents create more complex schedules for possession of the children. Even if the court enters a standard possession order, parents are still free to modify it by mutual agreement. So long as both the parties agree, there is no limit to the parties’ authority to change their respective visitation periods. Here are some suggestions for other non-standard possession schedules that divorce lawyers in Dallas Tx have used:

Equal possession, Week-on/week-off:

Under this type of schedule, the parents choose one day of the week to exchange the children, usually either Friday, Sunday, or Monday. So, every Friday the children will switch houses for the upcoming week. Some families prefer this situation, as it provides each parent the opportunity to spend a longer period with the child and to act as a parent in more of the normal parenting situations than weekend periods provide. On the other hand, some families find difficulty in this schedule because it requires more coordination between the parents on homework, doctors visits, extracurricular activity schedules, and other activities of the child.

Equal possession, 3/2/2/3:

Some children find that they miss the other parent during a week-on/week-off scenario, so a shorter but equal schedule works better. One suggestion for such a schedule would be the 3/2/2/3 schedule. Under this type of schedule, parent “A” would have the children for a three-day period, say Monday through Wednesday. Then, parent “B” would get two days, Thursday and Friday. Then, the children would return to parent “A” for Saturday and Sunday. The next week, parent “B” would get the 3 days, Monday through Wednesday. Then, parent “A” would get the middle two days; followed by parent “B” getting Saturday and Sunday. There are many variations of this type of equal schedule.

Teenager possession:

In some counties, judges will allow more vague provisions for possession of the child, recognizing the realities of teenager’s lives and preferences. Under such a scenario, the schedule would provide that the non-primary parent is allowed possession of the child at all such times as that parent and the child agree.

Child Under Three:

Children under the age of three present unique hurdles in crafting a possession schedule. Research shows that children between birth and the age of three have various developmental stages with regard to short-term and long-term memory. For example, a three-month old child will have virtually no long-term memory, so both parents need frequent contact with the child, say every day or two, so the child establishes a bond with both parents. However, such visits may be shorter in duration, say for a couple of hours, as the child’s attention span is shorter. As the child grows, the long-term memory and bonding become more established, allowing for longer periods at one time, with more time in between each visit.

Supervised possession:

On occasion, a parent may have issues such as substance addiction, domestic violence, or simply separation from the child, that suggest supervision of the parenting times may be warranted. In such situations, the supervised possession schedule will have to be very tailored to the individual circumstance. Usually, such supervised possession will occur during day-time hours on alternating Saturdays. Most often, judges appoint a facility to handle the supervision to ensure that the supervisor is trained in recognizing signs of inappropriate conduct. Sometimes, however, a judge will find an individual, known to both parties, that would be competent to act as supervisor. It is imperative, if the supervisor is an individual, that he or she be committed to protecting the child’s interest over and above the parent’s interest.

Stair-step schedule:

On occasion, there may be a situation where a parent has not seen the child for a period of time, requiring some adjustment schedule to allow the child to get used to the other parent. In such situations, a stair-step schedule can be used effectively to accommodate the child’s adjustment. For example, stage 1, lasting a couple of months, might involve a few hours during the daytime on a couple of days per month, like every other Saturday. Then, stage 2, for another couple of months, might provide the child spends the night with the non-primary parent overnight for those same days, every other Saturday overnight to Sunday. Stage 3 might progress to more of a schedule similar to the standard periods, beginning Friday at 6:00 p.m. until Sunday at 6:00 p.m. That stage might continue for another couple of months. Then, Stage 4 would progress to the Standard Possession Schedule.

Dallas Divorce Lawyers note a similar trend to that in a recent Newsweek article.  Newsweek point to a trend nationally where divorcing couples are sharing equal time with their children as well as joint decision making.  The “standard” orders in a Dallas divorce involves parents making shared decisions regarding their children (such as what school they will attend or when to get braces) but the children live primarily with one parent and spend time with the other parent according to the Texas Standard Possession Schedule (current version 2008).  Increasingly, divorcing parents who are able to get along and co-parent their children are turning to a more equal possession schedule, such as a week-on/week-off type arrangement.  These arrangements work well as long as parents live close together, preferably in the same school district, and get along well enough to collaborate on homework, activities, and such things.  Parents who argue or cannot communicate do not do well with this type of arrangement.

Talking to your kids about your divorce is difficult, to say the least.  Try the following tips to help both the child and yourself with the challenge and stress of the conversation:

• Do not keep it a secret or wait until the last minute.  Kids tend to know more about what’s going on than parents given them credit for.  Tell them far enough in advance to allow them time to let it soak in and give them time to adjust.
• Tell the kids together.  Having the conversation together allows both parents to be involved in the conversation and gives each parent the same opportunity to participate in the discussion.
• Do not discuss the adult reasons for the divorce or talk about the other parent’s faults or problems.  Keep adult topics between the adults and let the kids know just what affects them.
• Tell the kids that the divorce is not their fault and both parents still love them.   Kids tend to take divorces very personally.  They think something they did or didn’t do was the cause of the break-up.  Reassure them that both parents love them, they just can’t live together anymore.
• Give the kids some idea of what life will be like after the divorce.  Even if you don’t know the specifics, maybe because custody hasn’t been settled yet, you can tell them that they will live some of the time with Mommy and some of the time with Daddy and Mommy and Daddy will both go to their games and events like they do now.

Also watch for signs of distress from your child.  Divorce is hard enough on adults, and many adults need counseling — it’s the same for kids.  Many kids will need counseling too, if for no other reason than to have someone safe to talk to that’s not mom or dad.

Continuing with the myths of divorce post from Rutgers University’s National Marriage Project:

8.  Myth:  “Because they are more cautious in entering marital relationships and also have a strong determination to avoid the possibility of divorce, children who grow up in a home broken by divorce tend to have as much success in their own marriages as those from intact homes.”  Marriages of children of divorce actually have a much higher rate of divorce than the marriages of children from intact families.  A major reason for this, according to a recent study, is that children learn about marital commitment or permanence by observing their parents.  In the children of divorce, the sense of commitment to a lifelong marriage has been undermined.

9.  Myth:  “Following divorce, the children involved are better off in stepfamilies than in single-parent families.”  The evidence suggests that stepfamilies are no improvement over single-parent families, even through typically income levels are higher and there is a father figure in the home.  Stepfamilies tend to have their own set of problems, including interpersonal conflicts with new parent figures and a very high risk of family breakup.

10.  Myth:  “Being very unhappy at certain points in a marriage is a good sign that the marriage will eventually end in divorce.”  All marriages have their ups and downs.  Recent research using a large national sample foudn that eighty-six percent of people who were unhappily married in the late 1980s, and stayed with the marriage, indicated when interviewed five years later that they were happier.  Indeed, three-fifths of the formerly unhappily married couples rated their marriages as either “very happy” or “quite happy”.

Extra Myth:  “It is usually men who initiate divorce proceedings.”  Two-thirds of all divorces are initiated by women.  Reasons for this vary and are somewhat speculative.  Women tend to receive custody by agreement in many cases, so they have more reason to file the divorce.  Also, husbands are more likely than wives to have problems with drinking, drug abuse, and infidelity, creating the impetus for the wife to initiate the divorce.

More about the myths of divorce from Rutgers University’s National Marriage Project:

4.  Myth:  “Divorce may cause problems for many of the children who are affected by it, but by and large these problems are not long lasting and the children recover relatively quickly.”  Divorce increases the risk of interpersonal problems in children.  There is evidence, both from small qualitative studies and from large-scale empirical studies, that many of these problems are long-lasting and may even become worse in adulthood.

5.  Myth:  “Having a child together will help a couple to improve their marital satisfaction and prevent a divorce.”  Many studies have shown that the most stressful time in a marriage is after the first child is born.  Couples who have a child together have a slightly decreased risk of divorce compared to couples without children, but the decreased risk is far less than it used to be when parents with marital problems were more likely to stay together for the sake of the children.

6.  Myth:  “Following divorce, the woman’s standard of living plummets by seventy-three percent while that of the man’s improves by forty-two percent.”  This dramatic inequity, one of the most widely publicized statistics from the social sciences, was later found to be based on a faulty calculation.  A reanalysis of the data determined that the woman’s loss was twenty-seven percent, while the man’s gain was ten percent.  Irrespective of the magnitude of the differences, the gender gap is real and seems not to have narrowed much in recent decades.

7.  Myth:  “When parents don’t get along, children are better off if their parents divorce than if they stay together.”  A recent large-scale, long-term study suggests othewise.  While it found that parents’ marital unhappiness and discord have a broad negative impact on virtually every dimension of their children’s well-being, so does the fact of going through a divorce.  In examining the negative impacts on chidlren more closely, the study discovered that it was only the children in very high conflict homes who benefited from the conflict removal that divorce may bring.  In lower-conflict marriages that end in divorce — and the study found that perhaps as many as two-thirds of the divorces were of this type — the situation of the children was made much worse following a divorce.  Based on the fidnings of this study, therefore, except in the minority of high-conflict marriages, it is better for the children if their parents stay together and work out their problems than if they divorce.