KalishLawTexas' legal blog The Woodlands

It is very easy for children to be caught in the middle during a divorce.  In this video, our attorney Sio Ramirez Pitre is interviewed for examiner.com by relationship columnist Gina Gheller.  

Last week, we posted part I on this blog, this is part II.

In this video, geographical restrictions in divorce decrees are discussed.  These are common these days. If you are subject to a geographical restriction in your divorce decree, remember, this is a court order.  The reasons for these restrictions are explained in this video. There is also a discussion about children who wish to stop visiting one of their parents, seeking changes in child support, and the right to return to court and modify a custody or visitation order.

We hope you find this video interview informative.

Kalish Law Office, The Woodlands, Texas.  "Passionate, Professional, and Personal.  Since 1984".

281-363-3700

DNA testing is sometimes used in paternity, adoption and immigration cases. 

Here are some reasons that DNA testing may be used and who may request the test:

1.  In a traditional paternity case:  As evidence of the identity of the biological father

a. requested by the biological mother in order to enforce the duty of care and child support; or

b. requested by the biological father who wants to enforce his rights to the child and be allowed to be part of the child's life; or

c. by an alleged father who knows or suspects that he is not the true biological father and does not want to have rights to the child or a duty to support him/her; or

d. ordered by a court as evidence in the case.

2. In an adoption:

a.  to prove that a child is truly the offspring of one or both biological parents when the biological parent(s) are consenting to an adopiton (especially in international adoption cases).

b.  to prove that someone is NOT a parent of the child about to be adopted and therefore does not have to agree to the adoption

c.  to comply with international, federal immigration, or state law in an international adoption as part of the evidence in the file and part of procedural requirements

3. In immigration law:

a. to prove that a person is truly the offspring of an alleged parent who is petitioning for them with the immigration service

b. to prove identity of a person by objective, scientific evidence

In both international adoption and immigration cases there are very strict guidelines about which labs may process the tests and how and when the tests should be done.   In other family law cases it may be possible to use tests as evidence which were obtained prior to the case being filed (but this is not always true).   In order to prevent delays in your case it is always best to seek legal advice and be certain that you are using a lab which is reputable and approved by the governmental agency or court that is involved in your case and that all proper procedures are followed.  

Kalish Law Office 281-363-3700 Family and business law since 1984. The Woodlands, Texas.

There is a specific procedure under Texas Family Law for having gestational agreements recognized and validated by a court. The Texas law must be followed, with the proper legal procedures done in the order, so that the intended parents are the full and final legal parents of the child, and the other parties involved do not retain any parental rights and responsibilities relating to the child.

Gestational agreements used to be called “surrogacy agreements”.

“Surrogate mother” = a woman who bears a child for another woman, whether or not the surrogate mother contributes her own eggs.

“Gestational mother”= a woman who bears a child for another woman who does not contribute her own eggs and is not genetically linked to the child.

Texas law says that

-the gestational mother cannot be the genetic mother of the child. 

-there have to be two “intended parents” and they have to be married, to each other

- The intended mother must demonstrate to the court through medical evidence that she is unable to give birth to a child, unable to carry a child to term, or unable to give birth without unreasonable health risks to herself or the child

- The gestational mother must have had at least one previous pregnancy and delivery and no unreasonable health risks

- The gestational mother does not have to be married, but if she is, her husband must be a party to the contract

- The child must be conceived through assisted reproduction

- The gestational mother, her husband (if she is married), and the donors (if there are any donors other than the intended parents) must relinquish all parental rights and duties to the child that is conceived

-the agreement must specify who is paying for the health care expenses

-the agreement must be validated in a court at least 14 days before the embryo is implanted in the gestational mother

- Agreements which are not validated by a court will be unenforceable

- The court may order a home study of the intended parents (and likely will do so)

- The intended parents must be “fit” to be intended parents (just as adoptive parents must show their parental fitness)

- The gestational mother and the intended parents exchange health information throughout the gestational period

- The gestational mother has the right to safeguard her health and the health of the embryo and the gestational agreement may not interfere with those rights

-the prospective gestational mother or the intended parents must have resided in Texas for 90 days preceding the date the petition to validate the gestational agreement is filed in a Texas court

It is not recommended that parties enter into “Informal” gestational agreements which do not follow the Texas law. Texas courts will not validate these and there are risks that one or more of the parties may change their mind, that a party who didn’t expect it may be held liable for child support, or that there a conflict may arise about who has the right to custody of the child.  The risks of a child being in “legal limbo” or a subject of a multi-party custody battle are simply not worth taking a chance!

A gestational mother can end the agreement before she becomes pregnant.

Not all states recognize gestational agreements, and even among those states which do, there are differences in the law.  This is a somewhat controversial area, and definitely one in which we will see further legal development in the years to come.

Kalish Law Office in The Woodlands Texas: Family lawyers since 1984.  Gestational agreements, Adoption law, and family law affecting children.  281-363-3700 www.kalishlawtexas.com

If you are part of a male-female couple living together in Texas, you may be common law married without having a ceremonial marriage.  While living together you can agree to be married, and “hold yourselves out” to the public as being married and that can be enough to create a common law marriage.  Notice that both parties must agree on it and intend to be married; it cannot be a unilateral decision.   

If either party is still legally married to someone else, there will be no common law marriage created. Both parties must be over 18 and Texas law requires that the parties to this informal marriage be a man and a woman.

Not surprisingly, there can later be disagreement between the two people as to whether they really intended to be “common law married” or not.  This usually happens when the couple splits or is arguing over the ownership of funds or property.  One party will claim that they were never married and the other party will take the opposite position

If a party wants to allege and prove common law marriage upon breakup, a legal action must be filed in the Texas courts within two years of the time that the parties separated and ceased living together. If this is not done, Texas law presumes that there was no marriage and the chance to have these issues heard in a family law court are lost.

The issue of whether or not there was a legal marriage may also arise in a probate proceeding, when the alleged common law spouse is in opposition to the deceased partner’s other family members.  The common law spouse may be in a vulnerable position if s/he is unable to prove the common law marriage or his/her partial ownership of property or funds.

A Texas couple has another marital option aside from what is discussed above.   The couple can file a signed “Declaration of Marriage” in the county of residence, without having a ceremonial marriage. This document will prove that the informal marriage was acknowledged and intended by both partners.   Couples who have filed a declaration of marriage are married under the law, and will need to file for divorce if they split.  

Next Time:   “Unmarried and Living Together? Protect Yourself!”

Kalish Law Office www.kalishlawtexas.com   Family law attorneys, Spring, Texas 

Certain legal conditions must be met before parental rights are terminated by court order.

There are two types of termination; voluntary and involuntary.

A voluntary termination of parental rights occurs when the parent whose rights are being terminated agrees with the termination, cooperates, and signs the proper paperwork and/or appears in court and testifies that s/he is voluntarily giving up rights.

An involuntary termination occurs when the parent whose rights are being terminated is not in agreement with the termination. This can occur when the parent actively opposes the termination, stands by passively and allows it to happen, is absent with whereabouts unknown, or refuses to respond to the suit.

Even if an absent parent cannot be found to be served with a lawsuit terminating rights, there are certain legal steps that can be taken to give “legal notice” without “actual notice”.  Translating from “Legalese” to “English”, this means that just because a person is missing or hiding, the termination may still go on.  If the termination is in the best interests of the child the judge can make that decision.

Specific legal steps must be taken to locate a missing party.  There will also be an attorney appointed to represent the interests of the missing parent. 

Termination is not a given.  A judge can refuse to terminate parental rights if the judge believes that it is not in the best interests of the child to do so.  This can happen even if both parents are in total agreement about the termination. 

Here are three common situations involving termination of parental rights:

1. Adoption.   In order for a child to be adopted, he or she must be available for adoption and (except in an orphan situation) that will involve terminating the parental rights of one or both biological parents.   Step parent adoptions will commonly require the termination of rights of one biological parent.
2. Abuse, Neglect or Danger.   Parental rights can be terminated for abuse or neglect or to prevent harm to the child.  Child Protective Services may be involved in these cases.
3. Non support, no contact, abandonment, lack of acknowledgment.  In some circumstances a parent can lose his/her rights by not supporting, visiting or acknowledging the child.

Parental rights are protected by law, and the terminations of those rights are not taken lightly.  Many legal steps must be performed in order for a termination to be granted. The primary consideration is the health, safety, support and well-being of the child involved.

Kalish Law Office in The Woodlands Texas has been representing clients in cases involving termination, adoption, paternity, and parental rights for over 26 years.  www.kalishlawtexas.com  281-363-3700  “Passionate Professional and Personal. We Make the Difference.”

What if you should have gotten a Premarital Agreement but didn’t do it prior to marriage?

Don’t despair, there are specific legal documents which can be drafted and executed that will divide a married couple’s assets and debts into “his” and “hers”.

 These legal agreements may be called “Postmarital Agreements”, “Postnuptial Agreements”, “Partitioning Agreements”, or “Partition and Exchange Agreements” (I will refer to them as “Partitioning Agreements from this point on).

The partitioning agreement is used for the same basic reasons as the Premarital Agreement 1) To keep assets separate; 2) To protect one spouse from the other spouse’s separate debt 3) To account for a imbalance in assets between the spouses; and 4) For psychological or emotional reasons when it is better for each spouse to have his or her “own” property, rather than co-mingling it in one marital “pot”.

IMPORTANT** A Partitioning Agreement can not be used as a legal maneuver to defraud creditors. However, it is legal to use one in order to protect a spouse from separate debts owed by the other spouse. The separate debt may have already existed at the time the marriage was entered into. In other cases, the debt may not even exist yet. (For instance, only one spouse is embarking upon a financial venture and agrees to use or risk his/her own assets only).

In any event, the creditors will have full knowledge and disclosure.  It is possible to take certain steps in giving legal notice to potential creditors and may be advisable to file Partitioning Agreements in county records (although care must be taken with personal identifying and financial information since such filings are public record).

The legal requirements for these agreements are very specific and the consequences of signing such documents are many; this will affect current and future finances, income taxes, affect the couple’s estate plan, and be important in the event of a divorce so it is essential that an attorney who is knowledgeable in these areas be employed to draft and complete the documents.

The family law attorneys and estate planning attorneys in The Woodlands, Texas can assist you by explaining the legal requirements of Marital Agreements and drafting documents tailored for your family and business situation.

The Kalish Law Office in The Woodlands, Texas has been representing divorce and family law clients for over 26 years.  www.kalishlawtexas.com   281-363-3700

Premarital agreements are also called Prenuptial Agreements, or “Prenups”.   Most couples who decide on a premarital agreement do so for one or more of the following reasons; a) there is a disparity in their assets; b) there is a disparity in the amount of debts owed; c) they want to preserve all or a portion of the premarital assets for their already existing children; and/or d) to meet financial goals, including asset protection.

The Texas Constitution defines marital (“community”) property and separate property. All income earned or property obtained after marriage (other than that gained by gift, inheritance, or certain parts of a personal injury settlement or award) is community property, unless there is a very specific legal agreement to the contrary.  In order to legally change that designation, a couple needs to sign a very specific contract.  

In some situations one of the spouses may have a large amount of debt going into the marriage. Texas law states that a prenuptial agreement may not be entered into with the intention of defrauding creditors.  However, there is no fraud if the couple merely protects the non-debtor spouse from a debt that is not legally his/hers.  The debtor spouse will continue to be liable for the debt under the law, but the non-debtor spouse’s present and future assets will not be co-mingled with the assets that are legally available to pay this pre-existing debt.

A Premarital Agreement can help clarify the couple’s financial picture, remove anxiety about potential disputes and misunderstandings and assist them in planning their financial future.    Although the idea of a Prenuptial Agreement may seem “unromantic”, having a well-planned and valid agreement may provide harmony and peace of mind.

If you are considering a marriage and think that a Premarital Agreement may be appropriate, take the time to have a consultation with an attorney who has knowledge and experience in the areas of family law and estate planning.  You will then be able to make an informed decision about what is best for your future.

The family law attorneys and estate planning attorneys in The Woodlands, Texas can assist you by explaining the legal requirements of Premaritial Agreements and drafting documents tailored for your family and business situation.

The Kalish Law Office in The Woodlands, Texas has been representing divorce and family law clients for over 26 years.  www.kalishlawtexas.com   281-363-3700

Many states now have a paternity registry database.  In Texas, that database is maintained by the Texas Department of State Health Services- Vital Statistics.  

If a man has fathered a child with a woman who was not married to him, he can file a "Voluntary Acknowledgment of Paternity" with this Texas Department. By filing this document, he will establish his right to be notified of any legal procedings involving the child, including adoption.  This document will establish the man's willingness to accept his paternity of the child.  

In order to file the form, it is necessary to get the form from an individual who is certified by the Texas Department of State Health Services.   Once the form is obtained, explained, and properly signed, it can be filed with the Department. Information on how to get the form in your area can be found by calling 866-255-2006.

If a biological father is not listed on the birth certificate, does not visit or support the child, was not married to the mother of the child, and does not file an acknowledgment of paternity, he is in the most vulnerable position possible for having his parental rights removed, possibly without his knowledge.   Waiting for "the right time" to look for his child is a risky strategy if he hopes to have a parent-child relationship.

The laws attempt to balance the rights of the biological father to know and parent his child with the rights of the child to move forward with a valid adoption.

The Texas Department of Vital Statistics has an excellent page with many frequently asked questions about paternity, adoption, and birth certificates.  It can be found at http://bit.ly/9s13db and is an excellent resource.  There are currently several bills before the U.S. Congress relating to adoption, birthparents, and the establishment of a national paternity registry.

When a lawsuit involves a child, a judge may appoint another attorney to make recommendations or to represent the child (or children). These attorneys are called "Amicus Attorneys" or "Attorneys Ad Litem." This can happen in a divorce case, paternity case, or post-divorce modification and visitation case, and in termination and adoption cases.

Amicus Attorneys are appointed to make recommendations to the court. Ad Litem attorneys seek to actually represent the child.

In general, whenever the custody, visitation, access to, and support of a minor child or children are involved, either an Amicus or an Ad Litem (but not both) may be appointed.

Parents who are involved in these cases are often surprised to hear that a separate attorney will be involved, and don't understand why. They are also surprised to find out that they will usually have to pay all, or part of the attorney's fees. They sometimes feel suspicious or resentful, believing that the Amicus or Ad Litem attorney will be looking for reasons to criticize them or their parenting skills.

These attorneys are not the enemy, and are usually polite, well-spoken, caring individuals. They genuinely look for the best for the child and represent their young clients with energy and enthusiasm. They are specifically trained in what they do, and usually do it because they care about children.

In some situations, one of the parties to the suit may request that the judge appoint one of these attorneys.

Here are some examples of when an Amicus Attorney may be appointed/requested:

1. Mom and Dad are divorcing and have 3 children. The divorce is not a friendly one and Mom and Dad cannot agree on joint custody. In addition, each parent is fighting for primary custody and alleges that the other parent does not maintain a good, stable atmosphere for the children. Each parent has an attorney representing him/her. Although they are good lawyers and genuinely care about what happens to their client's children, their obligation is to their clients. The judge in the case appoints an Amicus Attorney to review the case, interview the children and parents, and make recommendations as to the "best interests of the children". The judge orders that the parents split the cost of the attorney's fees.
2. Mom and Stepdad file a petition to terminate the rights of Biological Dad to Mom's 6-year-old child so that Stepdad can adopt her. Biological Dad and Mom were never married; he doesn't support the child, and hasn't seen her since she was born. Mom thinks BioDad may have a substance abuse problem. She and Stepdad have been married for 4 years and Stepdad is the only Dad the child has ever known. BioDad isn't sure whether he wants to sign relinquishment papers or not. Judge appoints an Amicus Attorney to speak with all the parties and make a recommendation on whether or not it is in the child's best interest to keep BioDad in her life. The Judge orders Mom and BioDad to split the fees.
3. Aunt is raising her Niece. Aunt's Sister (BioMom) gave birth to the Child 13 years ago when she was 17. BioMom is a good person who thinks often of her daughter and visits now and then, but has not been able to provide a stable home or regular support. The Child worries that someday her BioMom will take her away and wants to have the same last name as the other children in the home. Aunt visits an attorney to discuss various legal options on how to handle the situation. She decides to file a suit seeking full legal custody for herself without terminating the BioMom's rights. BioMom agrees. Aunt's attorney files the suit and also requests that the Judge appoint an Ad Litem attorney to represent the Child. The Judge does so. Aunt has agreed that she will pay the attorney's fees.

If you are a party to a case in which one of these attorneys is appointed, you should cooperate with that attorney. Be available to speak or visit, and provide any requested information, plus any information that will help him/her form a recommendation. Remember that the judge will listen carefully to any recommendations made for the best interests of the children.

You can also help by keeping your attitude positive, avoiding making negative remarks about others involved in the case, and letting your child know that s/he should not be afraid to talk with the Amicus or Ad Litem attorney.