Friday, June 19, 2015

Did Texas Really Recognize Same-Sex Divorce? (NO)

In the News

It's all over the news today: "Texas Supreme Court Recognizes Same-Sex Divorce." Did that really happen? Wouldn't the Texas Supreme Court first have to recognize marriage between two people of the same-sex before it could recognize a divorce between them? Of course it would. So does this mean that Texas just got one step closer to recognizing marriage between two people of the same sex? No--The excited headlines are written by people who don't read.


Two women who live in Texas were married in Massachusetts, a state which "indisputably recognizes this same-sex marriage." State v. Naylor and Daly,  11-0114, 2 (Tex. June 19, 2015) available at The marriage became insupportable and one of the women filed for divorce. Id. The State of Texas monitored the case for months, but never made any effort to get involved in the legal process. Id. at 13. 

The couple agreed to the terms of a divorce and the trial court granted the divorce. Id. at 3. The judge verbally announced the judgment of the court. Id. "Several lawyers" representing the State attended this final hearing and heard the judge announce the court's judgment. Id. 

THE NEXT DAY, the Office of the Attorney General asked the trial court to permit the State to intervene in the case to oppose the divorce. Id. The State made no attempt to be involved in the case until AFTER the judge rendered the decision of the court. Id. at 4, 6.

What Did the Texas Supreme Court Actually Say?

Texas Should NOT Have to Recognize Same-Sex Marriage

The Texas Supreme Court is clearly sympathetic with the notion that the courts of Texas cannot recognize a marriage between two people of the same sex: "we recognize the import of the State's statutory and constitutional arguments," Id. at 11; "The State asks us to determine whether Texas has a constitutional right to define marriage and whether state law precludes the trial courts from offering divorce to same-sex couples. We have no quarrel with [this] analysis," Id. at 16-17; "we would appreciate the opportunity to address the merits of this issue of critical importance," Id. at 18.

But Texas was not Competently Represented in this Case

The State's Attorney's Failed to Act Timely

Let's say a husband and wife having two children are divorcing and that one of the grandparents believes that neither parent is fit to raise the children. That grandparent could file a document called a Petition in Intervention while the divorce case is pending and in that petition, ask the court to do something such as take the children from the parents and place them with the grandparent. This is what it means to intervene in a case. The intervenor is sticking his or her nose into someone else's lawsuit because the intervenor believes he or she has some legal interest in the outcome.

Importantly, a Petition in Intervention must be filed while the case is still pending, which is the period of time between when the case is first filed with the court and when the judge renders a final judgment. Judgment is "rendered" when the judge publicly announces his or her final decision on all matters before the court. Id. at 4. Therefore, if someone wants to intervene in a case, the intervention must be filed BEFORE the judgment is rendered. (There are some exceptions, which the Court also dealt with in this case.)

Here, even though the Office of the Attorney General actively monitored the case for several months and was present in the courtroom when the judgment was rendered, they took no action at all until AFTER the judgment was rendered. Id. at 3, 6. Therefore, when the Attorney General filed its Petition in Intervention the next day, after judgment was rendered, it was too late. Id. at 7. This failure to timely act prevented the State from having a legal basis to be involved in the case. Id. at 2.

The State's Attorney COULD HAVE Acted on Time

According to the Texas Supreme Court, the Office of the Attorney General had plenty of time to intervene "and simply failed to diligently assert [the State's] rights." Id. at 13. As you may recall, there was a similar case in Dallas several years back, In re Marriage of J.B. and H.B., 326 S.W.3rd 654 (Tex. App.--Dallas 2010, pet. dism'd), so the State had legal arguments applicable to this case ready to go. Id. at 13. "[I]t likely would have required relatively little effort" for the Office of the Attorney General to act in a timely manner--it just failed to do so. Id. at 3.

The State's Attorney Had Other Remedies

Even though the State inexplicably failed to act in time, the Office of the Attorney General could have asked the court to set aside the judgment. Id. at 14. But the State failed to do that as well. The trial judge tried to clue the State in on the fact that a final judgment had been rendered and that it was too late to intervene unless the State filed a motion to set the judgment aside. Yet, the Office of the Attorney General charged ahead with its fatally flawed battle plan. Id.

Therefore the Trial Court's Judgment Stands

In the legal system, it's not enough to be right. One has to do things the right way. The "right way" is defined in the Texas Rules of Civil Procedure and the case law that illuminates those rules. Here, the Texas Supreme Courts seems to be saying, "We agree! This divorce probably constitutes an improper recognition of same-sex marriage." But, the State failed to follow the rules so the trial court's judgment stands.

Where Does This Leave Us?

My reading of the opinion is that we should not expect a flood of successful divorces involving same-sex couples in Texas. This widely misunderstood ruling from the Texas Supreme Court may embolden more unhappy couples of the same-sex to seek divorce, but surely, next time, the Office of the Attorney General, after being so publicly lambasted for poor performance in this case, will intervene on time, seek a quick writ of mandamus ordering the dismissal of the case, and that will be the end of same-sex divorce in Texas.

Unless the Supreme Court of the United States unwinds state laws prohibiting marriage between couples of the same sex. But that's a blog post for another day.

Sunday, April 5, 2015

Can I Tattoo My Baby?

I've been asked thousands of questions about family law issues and, for the most part, they all blend together in a haze. I can name most of the topics I've addressed, but I can't tell you the exact wording of many of the questions I've responded to.

But when someone asks, "Can I tattoo my baby," that sticks with you. So here's the answer, at least for baby's in Texas: PROBABLY NO.

1. Can vs May

As we do with all legal questions, let's break this one down into separate questions for clarity. First is the issue of practical capacity. For all I know, the asker had the ability to insert pigment under the baby's skin to produce a tattoo. Or maybe not. Because I have no idea what a person is capable of, I treat all "can" questions as "may" questions. In other words, I'm not commenting on whether the person had the wherewithal to do what he or she asked. I'm commenting on the asker's legal right to do so.

2. Who Can Tattoo Anyone?

Second, can a person tattoo anyone, baby or otherwise? The Texas Health and Safety Code tells us that one can only tattoo another at either a licensed tattoo studio (Tex. Health & Safety Code § 146.002(a)) or a licensed temporary location. (§ 146.002(b))

Also, the person who would apply the tattoo, the "tattooist," must be registered with the department. (Tex. Health & Safety Code § 146.0021). So unless the tattooist is registered with the department and operating at a duly licensed location, the quick answer is "no."

The only exceptions to these requirements are a medical facility licensed under other law and a person licensed by the Texas State Board of Medical Examiners. (Tex. Health & Safety Code § 146.0025). Presumably people and places exempted under this section are applying discrete tattoos to aid in medical treatment, such as those used by radiology oncologists to properly align the radiation machines with a cancer patient's treatment area.

3. Is it Legal for a Tattooist to Tattoo a Baby?

Third, can a registered tattooist operating at a duly licensed location tattoo a baby? Let's assume that by "baby" we're talking about a person who is under the age of 18 years. If the purpose of the tattoo is to cover an existing tattoo that is obscene, drug-related, gang-related, or otherwise offensive to the baby's parent or guardian, then a registered tattooist operating at a duly licensed location may use tattooing techniques to cover the offensive tattoo if the tattooist has the consent of the baby's parent or guardian. (Tex. Health & Safety Code § 146.012(a-1)).

Otherwise, no, a tattooist is not permitted to tattoo a baby. (Tex. Health & Safety Code § 146.012).

4. The Penalty for Tattooing a Baby

Violating the rules governing tattoos is a class A misdemeanor (Tex. Health & Safety Code § 146.018), which is punishable by a fine of up to $4,000, one year in jail, or both (Tex. Penal Code § 12.21).

I don't judge folks who want to share their love for ink with their children. Well, maybe a little. But only as it pertains to actual babies. No matter where you are on the issue of children and tattoos, just know that in Texas, it's illegal.

How To Programmatically Add a Joomla User - Custom PHP Script - Joomla 2.5

In developing our incredible legal billing and client management system, ClientMatters, one of the tasks we had to accomplish was making it really easy for law firm administrators to authorize clients to log in to the client portal. ClientMatters is a legal billing and client management system built on the Joomla! platform. After looking at lots of out-of-date articles, here's what we came up with. This is an excerpt from a controller that handles a lot of administrative tasks.
< ? php
defined ('_JEXEC') or die('Restricted access.');


class BillingControllerSession extends JController
  public function __construct()
  public function authorizeClient()
    $result = null;
        //We need these 4 parameters. In our system,
        //it's an HTML form that collects information
        //from the law-firm administrator
        //and then sends it to this JController. 
  $username = $this->getParameter('u');
 $password = $this->getParameter('p');
  $email    = $this->getParameter('e');
  $name     = $this->getParameter('n');
  $user = array();
  $user['username']  = $username;
  $user['password']  = $password;
  $user['password2'] = $password;
  $user['sendEmail'] = 1;
  $user['usertype']  = 'CM Client';
        // 2 is the "Registered" group. You can add others.
  $user['groups']    = array(2); 
  $user['name']      = $name;
  $user['email']     = $email;
  $params = array();
  $params['timezone'] = 'America/Chicago';
  $params['language'] = 'en-GB';
        //You could add an item to this array containing
        //a key that links this Joomla! user record to a
        //related record in your solution's database. For
        //example, had we received the client's ID in the
        //HTML Request, we could add that here as follows:
        //   $params['clientid'] = $clientId;
  $user['params'] = $params;
  $instance = JUser::getInstance();
 if (!$instance->bind($user))
    throw new Exception('SESSION.PHP: Failed to bind user object. ('.

        //Read MORE about this save method below!!
  if (!$instance->save(false))
    throw new Exception('SESSION.PHP: Failed to save user object. ('.
 $result = array('status'=>1,
    catch(Exception $e)

  //This function just catches programming errors.
  private function getParameter($variable, $default=false, $required=true)
    $result = JRequest::getString($variable, $default);
    if (!$result && $required)
      throw new Exception("SESSION.PHP: Required parameter '$variable' is missing.");
      return $result;

  //Method to report the result of the operation to the caller as a json string. 
  private function reportResult($result)
    if ($result['status'] == 0)
  error_log('Error in session.php: '.$result['reason']);
    $document =& JFactory::getDocument();
    JResponse::setHeader('Content-disposition', 'attachment;filename="'.$this->getName().'.json"', true);
    echo json_encode($result);

The JUser::save() method blows up

Here's something that made me curse for a few HOURS one night as I was testing. The first time I tried to authorize a user, it worked great. Then I made some changes, deleted the user from the user's table through the Joomla! Administrator interface, and tried again. As soon as I tried to authorize the same client again, which is a valid use case, the Gantry framework that we use started complaining about not being able to find the JHelperModule. Whaaaaat?!

The user record was being added OK by the
method, but the error regarding the JHelperModule was so deep in the framework, that when it blew up, it thwarted our try/catch and no useful result was sent back to the browser. The user record was being added and the client could log in, but there was no way to let the user know the call succeeded, at least until the client attempted to login.

Because the error was raised in the Gantry framework, I wanted to conform or eliminate Gantry as the problem. To do that, I changed the template to one of the built in templates that came with my Joomla! distro figuring that if this worked OK, I definitely had a Gantry problem. If it failed, I had a Joomla! problem. Well, the error message went away, but other than that, the results were the same. Deep in the framework, something was blowing up.

Next--ON THE DEV SYSTEM--I put a bunch of error_log() statements in the JUser::save() method to find out where it was blowing up. It was blowing up at the very end when it was trying to trigger the "onUserAfterSave" event in listeners. If I commented out that trigger, everything worked perfectly.

That wasn't the solution, but it was a useful clue.

Next, I grep-ed for every php module that had registered the "onUserAfterSave" method and did my error_log() peppering thing to see which file was causing the problem. As it turned out, there is a ContactCreator plugin that came with the Joomla! distribution and was enabled (by default? I don't remember.). Here's what that plug in does: every time you add a user to Joomla!'s tables, it creates a corresponding contact_details record and puts a variant of the user's real name in an `alias` column. Here's what that plug does NOT do: when you delete a user using the Administrator interface, it does NOT delete the contact record. Here's one more thing that it DOES do: If you try to add a record that would result in a duplicate `alias`, it blows up and tries to send an HTML error back to the browser.

Because I was authorizing the same record over and over, this was what was killing me.

My solution? I just disable that ContactCreator plug in. I don't need it or it's bad attitude.


How I Solved "Fatal error Class 'JModuleHelper' not found" Error in Joomla

Before I tell you how I solved this, let me give you these tips:
  1. JModuleHelper is a very commonly used module in the Joomla! framework. There is no one reason why an error relating to this module will be raised. It is very context-dependent.
  2. If you are using a template or template framework (I use RocketTheme's Gantry framework), switch to a built-in template before you let yourself get hauled down the path of wondering what's wrong in Gantry. Probably nothing.
So here's the context of my problem: I was calling JUser::save() and that was resulting in the "Fatal error Class 'JModuleHelper' not found" error. The error message was being raised inside the Gantry framework, so I figured that's where the problem was. However, following principal #2 above, I switched to a "stock" template and got the same result. To be clear: I did not see the same error, which seems to be because Gantry does a great job of reporting problems rather than ignoring them. But the result of the JUser::save() method was the same.

Next, I peppered the JUser::save() method with error_log() calls so I could find out where it was encountering the error. Turns out, it was having problems at the very end when it triggers the 'onUserAfterSave' event in various listeners.
I then grep-ed for all php files that register an interest in the 'onUserAfterSave' event and came up with a list of four plugins:
  1. plugins/user/profile/profile.php
  2. plugins/user/contactcreator/contactcreator.php
  3. plugins/user/joomla/joomla.php
  4. system/languagefilter/languagefilter.php
Again, using my paleolithic debugging approach, I put an error_log('entering profile') and error_log('leaving profile') statement in each plug in, changing the logged message to indicate which plugin was logging the message. Then when I called JUser::save(), I got the expected messages in my log file EXCEPT for the ones relating to contactcreator.php.

Ultimately, what it turned out to be was this: I was testing by adding a user, logging in with that user's credentials, deleting the user from the Joomla! Administrator interface, then adding the user again. ContactCreator is a plug in that came with my Joomla distribution and was enabled, probably by default, but I don't know that for certain. When ContactCreator is notified of the "onUserAfterSave" event, ContactCreator adds a record to the contact_details table, including inserting a value in an `alias` column of the database. The values in `alias` have to be unique.

When you delete a user using the Joomla! Administrator console, ContactCreator does NOT delete the contact_details record. I don't know who uses ContactCreator, but it has the ability to store a LOT of information about a user--information that you probably don't want to lose just because you deleted the user's record. So maybe this is good behavior.

The problem is that when you call JUser::save() again with the same person's NAME, ContactCreator creates a duplicate `alias`. Instead of updating the corresponding record in the contact_details table, it tries to INSERT and it fails due to the violation of unique constraint. That failure propogates up and, in my world, resulted in Gantry complaining that it could not find the JModuleHelper class. Once I disabled the ContactCreator plugin from the Joomla! Administrator console, my system worked perfectly.

I thought about modifying the plug in to do an "upsert" operation, but I don't care about this plug in and didn't want to get into a battle with Joomla! updates overwriting my changes. If you need this plugin and you are getting the same error I got, you'll need a more robust solution.

Tuesday, April 1, 2014

Suggested Language Regarding Drugs and Alcohol

In child custody matters, parents frequently accuse the other of abusing drugs or alcohol. Once the accusations have settled in, the attorneys need to craft language that prohibits both parents from doing something stupid with drugs or alcohol while in possession of the children.

Here's language that I see way too often:
Neither parent shall use drugs or alcohol while in possession of the child.
Neither parent shall use illegal drugs or alcohol while in possession of the child.
Neither parent shall use illegal drugs while in possession of the child nor shall either parent consume alcohol during the 10 hours prior to or at any time during possession of the child. 
The provisions are worthless for these reasons:
  1. Definition of "Drugs." The first example, in my opinion, prohibits either parent from smoking, vaping, using "the patch", taking Tylenol, or drinking coffee while in possession of a child. Nicotine, Acetaminophen, and Caffeine are all defined as "drugs" by someone. Certainly no one really means to prevent a parent from drinking a cup of coffee! Now the first defense I hear when I criticize this type of language is that "everyone knows what we mean by 'drugs'." No, everyone does not know. That's one of the lawyer's jobs: Make certain that the language of an order is so clear that there can be no question whether a person is complying with the order. If you draft something this wide open, I assure you that one day, someone who is desperate to prove a point against another parent will be filing an enforcement motion over Tylenol consumption. How embarrassing to the drafter!!
  2. Definition of "Illegal Drugs." That might seem clear enough, but it is not.
    • First, in what jurisdiction is the drug illegal? For example, if a parent takes a child on a ski trip to Colorado and decides to indulge in Colorado's recreational marijuana permissiveness, did the parent use illegal drugs while in possession of the child? It's not illegal in Colorado. Or is it? Just because marijuana is generally legal to use in Colorado does not mean you can walk around with a brick of weed in your duffle bag and smoke it in public.
    • Second, just because the drug is "legal," whatever that means, does not mean that the parent is using it lawfully or is even in lawful possession of it. If a parent has just undergone dental surgery and the oral surgeon prescribed some Hydrocodone, you wouldn't say that parent is using illegal drugs as long as the parent has a valid prescription and is using the drug in compliance with the prescribing physician's instructions. But what if the parent has stockpiled Hydrocodone for a "rainy day" and, with all the noise from having the kids around, has decided that today is a rainy day and therefore it's time to escape into a Hydrocodone stupor. This is the behavior you want to prevent.
  3. Consumption of alcohol. For a parent who is a dangerous drunk, the third example above probably addresses the alcohol issue sufficiently. But there are plenty of situations where one parent accuses the other of over-indulgence either out of spite, fear, or a difference in moral values as to intoxicants. That doesn't mean the accused parent is dangerous to the children. But it probably does mean that a sensitivity needs to be addressed in order to get the case settled. An absolute prohibition against alcohol use will prevent certain religious groups from simply participating in important religious rites--that can't be the (legitimate) goal of the alcohol prohibition language.
So what are we looking for in good language?
  1. Clarity/Enforceability (they mean about the same thing in the litigation world)
  2. Effectiveness in preventing the root problem being addressed
  3. Flexibility allowing people to live their lives as long as they don't pose an unreasonable risk to the safety and welfare of the children.
So here's the language I use. I'm interested in your responses to this--mostly because I learn a lot by reading your comments and suggestions.

Recommended Language on Alcohol and Drug Use

Restriction on Use of Alcohol. Neither parent shall consume alcohol to the point of being "Intoxicated," as that term is defined in section 49.01(2) of the Texas Penal Code as amended from time to time, nor be in an Intoxicated state at any time during his or her respective periods of possession of the child.

Restriction on Drug Use. Neither parent shall "Administer" to themselves or anyone else any "Controlled Substance" or "Controlled Substance Analogue", except when that parent is in "Lawful Possession" of such Controlled Substance or Controlled Substance Analogue  and only then in strict compliance with the instructions provided by the prescribing physician. Under no circumstances shall a parent Administer a Controlled Substance or Controlled Substance Analogue to themselves in a manner that would result in that parent being Intoxicated or otherwise posing a serious and immediate threat to the safety and welfare of the child during a period of that parent's possession of the child.  [Omit this next sentence if recreational use of marihuana is OK as long as it's legal.] Notwithstanding any local or foreign state law to the contrary, neither parent shall Administer to themselves or another person or be in Possession of Marihuana at any time during his or her respective periods of possession of the child. For the purposes of this section, the terms "Administer," "Controlled Substance," "Controlled Substance Analogue," "Lawful Possession," "Marihuana" and "Possession" shall have the meanings defined in sections 481.002(1), 481.002(5), 481.002(6), 481.002(24), 481.002(26), and 481.002(38) of the Texas Health and Safety Code and the term "Intoxicated" shall have the meaning defined in section 49.01(2) of the Texas Penal Code, each Code as amended from time to time.
What do you think?

Sunday, September 22, 2013

Rights and Duties are not Prizes

Parenting Plan - 3 Major Components

When parents divorce, their final decree contains a parenting plan. If the parents were never married, then the court will order a parenting plan along with the child support order. A parenting plan contains three major components:
  1. Conservatorship Provisions
  2. Possession and Access Schedule
  3. Child Support Provisions
The conservatorship provisions allocates rights and duties between the parents so that it is (for the most part) quite clear as to who has the right to make decisions on behalf of the children.

Rights and Duties 

Most of the time, parents are appointed Joint Managing Conservators of their children. That means that both parents have the rights to make certain decisions for the children. There are eleven rights and duties we tend to argue about the most, and foremost among them are:

  • The right to determine where the children live;
  • The right to consent to medical treatment for the children;
  • The right to consent to mental healthcare treatment for the children; and
  • The right to receive child support for the benefit of the children.
There are others, but battles over these rights consume the most energy.

Decision making rights can be held in three ways. First the parents can hold a right independently. That means both parents have the independent right to make decisions that fall within the scope of a particular right and neither needs to notify the other parent or get the consent of the other parent before making a decision. Secondly, the parents can hold a right jointly, meaning that both parents must agree before a decision is made on an issue within the scope of that right. Finally, one parent can hold a right exclusively meaning the other parent has no right to make a decision within the scope of that right.

Independent Rights

More concretely, if the parents each have the independent right to make educational decisions, then either parent can speak to the school counselor and make decisions regarding the child's academic program. Highly functioning co-parents can share an independent right without causing problems for the child.

Joint Rights

If the parents each have the joint right to make educational decisions, then neither can make a decision regarding the child's academic program without the consent of the other parent. If you have a parent who wants to use his or her rights as an excuse to say "no" to everything, then joint rights can create problems for the child.

"Sneaking" behind the other's back back to make certain decisions without notifying the other parent can cause insufferable conflict in the co-parenting relationship. For example, if the parents each have the independent right to consent to psychological treatment for the child, one parent could take the child to see a counselor without telling other parent without being in violation of the parenting plan. When the other parent finds out, he or she may be alarmed or angry to the point of suing the parent for taking the child to a counselor. The normal dance is for one of the parents to demand to have the EXCLUSIVE right to make decisions in that category, in this case the exclusive right to consent to psychological treatment.

However, I think this just sets the parents up for MORE conflict, not less. If the child really needed counseling, then there may not have been anything wrong with getting the child some help. The harm is in creating a situation of alarm for other parent. In that case, who should get the exclusive right? The parent who sought help but created a lawsuit or the parent who did not seek help but was understandably startled by the other parent's clandestine maneuvers? The typical approach is for the court to pick one or the other. In cases like that, my opinion is that the court should more often reallocate the right as a JOINT right in order to force the parents to work together on that issue. If the parents cannot work together, THEN the court should designate one of the two parents as having the EXCLUSIVE right to make decisions.

Principals of Allocation

Phrases like "battles over these rights" are symptomatic of the  unhealthy and unhelpful way that parents can view the allocation of rights. Too often, attorneys act as enablers in these battles or, worse, sometimes attorneys point out the opportunity to do battle.

The Texas Family Code tells us that both parents should be appointed as joint managing conservators for the child unless another arrangement is clearly in the child's best interest. That suggests that parents should, for the most part, have independent rights and duties, just as they did prior to the lawsuit (divorce or suit affecting the parent-child relationship) being decided.

Within that framework, rights and duties should be allocated between the parents on the basis of what is in the child's best interest. Everyone gives lip service to that "best interest of the child" standard, but not that many people think deeply about what that means. I believe that it is clearly in the child's best interest to have two involved parents making decisions together for the benefit of the child. The unfortunate truth is that too often, attorneys and parents seek to "collect" exclusive rights as badges of honor. The more exclusive rights and duties you have, the better parent you must be. How in the world is that a helpful, healthy way to view decision-making responsibilities?

Of course all cases have their differences, but here is my general model for allocation of rights and duties.

1. The right to receive child support has to be exclusive to one parent. There are situations where an argument can be made to have that right held independently, but that argument is just an attempt to set up one parent or the other for a future contempt finding.

2. The right to determine the primary residence of the child must be exclusive to one parent if the parents cannot agree on a geographic restriction on the child's primary residence. If the parents can agree, for example, that the child's primary residence shall be within Collin County, Texas, then neither parent has to hold this right. But if the parents cannot agree, one parent must have the exclusive right. NOTE: If the parents agree to a geographic restriction and agree that neither parent will have the exclusive right to designate the primary residence of the children, then they must set up some rules for the selection of the child's school.

3. The right to consent to underage enlistment and marriage should be joint because young kids should not be joining the military or getting married. They'll be old enough to make those decisions on their own soon enough.

4. All other rights should be held independently unless and until a conflict over a particular right emerges.

5. If the conflict is such that the parents are making mutually exclusive decisions, then the court will have to modify how that right is held. For example, if the child has asthma and one parent takes the child to a pediatric pulmonologist but the other takes the child to an herbalist, without suggesting which parent is following the better approach, it is clear that the two treatment theories are in conflict and the conflict could endanger the safety of the child. In a case like this, the court should designate one of the two parents as having the EXCLUSIVE right to consent to medical treatment.

6. However, as is more often the case, if the conflict is over one or the other parent sneaking off and making otherwise good decisions without notifying the other parent, then the court should order that the implicated right be held JOINTLY by the parents. For example, if the child needs counseling and one parent takes the child to a counselor without telling the other parent, it is clear that the conflict is not over the substance of the treatment sought. The parents agree the child needs a counselor. The conflict is over the parents not cooperating.

Aspire to a Higher Standard

Situation #6, above, is where the courts, attorneys, and mental health professionals routinely make bad decisions. In a case like that, the attorney for one parent is likely to sue for the EXCLUSIVE right to make mental healthcare decisions, the attorney for the other parent is likely to join the fight on those terms, mental health professionals will be lined up as enablers, and the court will be asked to pick a parent after thousands of dollars in legal and professional fees are expended by both sides. Each parent is trying to collect this particular right as his or hers exclusively as evidence that he or she is the better parent. This is the more common approach and essentially places the raising of children in the hands of attorneys and judges. That's a framework that is beneath us all--we can do much better.

If the problem is that the parents are not sufficiently engaged with each other, the solution is to push them closer together, not pull them farther apart. Rather than give either parent the exclusive right to make mental healthcare decisions in this example, I believe the court should order that neither parent can make a mental healthcare decision for the child without the consent of the other parent. In that same order, the court may need to appoint a parenting facilitator or parenting coordinator with the binding authority to make decisions when the parents cannot agree. This approach keeps parenting with the parents and their appointed helper.

By giving one parent the exclusive right, the court almost guarantees future litigation over the issue and certainly sets the parents up for future conflict. However, instead of seeing the allocation of rights and duties as a score card, the parents, attorneys, mental healthcare professionals, and the court should view it as a part of a decision-making framework that gives the child the benefit of two involved parents. Seen in this way, it becomes more intuitive that the court should nudge the parents closer together in that decision-making realm, designate the right as a JOINT right, and see if that clears up the conflict.

Saturday, September 21, 2013

Why I Disagree with the 2013 Changes to Child Support Contempt

The Purpose of Child Support

The purpose of child support is to make sure that there is sufficient income available to both parents to provide a safe home for the children while the children are in each parent's care. In other words we want mom to have enough income to provide a safe place for the children during her periods of possession and we want dad to have enough income to provide a safe place for the children during his periods of possession. That's why the courts will enter a child support order even if the parents share the children 50:50. Usually the parents do not share the children 50:50, so the another objective of the child support system is to push financial resources to where the children are.

The Goals of the Enforcement Process

Sometimes a parent does not pay child support as ordered. The United States Congress has instructed the states to take the enforcement of child support orders very seriously and, in Texas, we do. When a parent who has been ordered to pay child support fails or refuses to do so, the Chapter 157 of the Texas Family Code spells out an enforcement process that can ultimately result in the defaulting parent being put in jail for a while.

The goal of the enforcement process is NOT to fill the jails with "deadbeats" but rather to get child support income into the hands of the parents who are supposed to receive it. That is a critical point to accept in analyzing the good and the bad of any change to the child support system: How effectively does the change hasten the payment of child support from the obligor to the obligee?

The Value of a Contempt Finding

When a parent is being sued for not paying child support, the court answers 5 questions. Is there a valid, enforceable support order in place? This is a legal question, not a factual question. The court will often decide if the order is enforceable, as a matter of law, without any evidence or testimony from anyone. A support order written by a family law attorney or the Office of the Attorney General is nearly always going to be enforceable. Very often, support orders written by people who represent themselves are not enforceable. If the order is not enforceable, there is very little the court can do about the fact that the parent has not been paying.

The next question is whether the parent who is supposed to pay child support (the "obligor") is actually behind. This is a fact-sensitive question and the court will need to receive evidence. The usual moves are for the party seeking to enforce the order to show up with a list of payments logged by the Office of the Attorney General. Any payment that should have been made but that is not listed on that log is presumed to not to have been made. Next, the obligor presents evidence either that the payments were made but not properly recorded by the Office of the Attorney General or that the obligor was not able to make the payments, no matter how hard he or she tried.

Assuming the court finds that there are some payments that have not been made, the next question the court must answer is what is the total of payments that were not made? The court will add up all the missing payments, apply some interest to the total, and confirm the total as an arrearage against the obligor.

PAY ATTENTION: Once the court confirms an arrearage, it will impose a payment plan on the obligor. That means that if the obligor missed $10,000 worth of payments, the obligor will have to pay it back, but not all at once. What this really means is that the parent who receives child support has to finance the arrearage--in effect loan the child support payments back to the obligor and then get them back on a payment plan. If the parent who is supposed to receive child support had to take out credit card loans to support the children because the obligor failed to pay, then that parent will have to pay off the credit card with payments that trickle in from the obligor each month--all the while paying the generally usurious interest rates charged by credit card companies.

The fourth question the court resolves is whether the obligor's refusal or failure to pay was contumacious, meaning was it willful OR did the obligor have a legally adequate excuse for not paying in full. If the court believes that the obligor could have paid more than he or she did, then the court will find that the obligor is in contempt of court and will sentence the obligor to some jail time. This is called being found in contempt of court.

Finally, if the court finds that the obligor was in contempt of court, the court will decide whether the obligor should go to jail immediately OR be put on probation so long as he or she follows all the court's orders regarding the support of the child.

So that's the value of a contempt finding: The obligor can go to jail the same day as the court's hearing which creates a huge incentive for obligors to get caught up on their payments as soon as they can. Or does it, now?

The Law Prior to 2013

Prior to the 2013 change in the law, the Texas Family Code said that if an obligor pays his or her arrearage in full PRIOR to the child support enforcement hearing, the court could NOT find the obligor in contempt and therefore could NOT sentence the obligor to jail. It was guaranteed that if you owed child support but paid it in full prior to the hearing, you would not go to jail.

This was great for parents who needed their child support. You might not believe how many folks found themselves able to put together $10,000 or $20,000 the day before a hearing to pay the other parent for missed support payments. The obligors had a POWER INTEREST in paying a giant lump sum payment prior to the hearing. This encouraged the QUICK FLOW OF CASH that would allow the wronged parent to pay back in full any debt that he or she took out to support the children while the enforcement case was pending.

Obligors that could not come up with the money would have to take a chance at trial as to whether the court would find them in contempt and, if so, put them in jail. Obligors who paid up took no chances.

The Law After 2013

In 2013, the Texas Family Law Foundation, which is a lobbying group that promotes the interests of family law attorneys, convinced the legislature to change the law in a terrible way. The new law states that even if an obligor with an arrearage pays up prior to trial, the court can STILL find the obligor in contempt. With the new law, there is no reason at all for an obligor to pay in full before trial. At trial the next day, no matter what happens, the trial court is extremely unlikely to order that the entire arrearage be paid in full in a lump sum--the "deadbeat" will get the benefit of a payment plan and the parent who should have received child support will continue to finance the debt.

Why I Disagree with the Changes

The real purpose of the change was to help attorneys collect legal fees from obligors who get behind on child support. That's all this was about--helping attorneys collect their fees. I'm an attorney and I like to collect my fees, but the law could have been changed in that regard without destroying the huge incentive that obligors had to "make it right" prior to trial. Now, it will be easier for attorneys to collect fees (ha! but only on a payment plan) but the wronged parent will never again get a lump sum payment to get caught up on child support.

If you agree with my assertion that the goal of the enforcement process is the hasten the payment of child support to parents who need it, the you have to agree with my conclusion that this change in the law works against that purpose and will ultimately hurt many, many people who might otherwise have received large upfront payments from obligors trying to stay out of jail.