28 minute read
What’s Required When Children Resist or Refuse Possession
Focus Family Law
What’s Required When Children Resist or Refuse Possession
BY CHRIS MEUSE
“But I can’t make them go!” something every family law practitioner has heard at least once. When children resist spending time with one parent, it can put the other parent in hot water before the family court. So, what is required of parents, and why do families find themselves in situations where children are resisting or refusing to spend time with a parent?
Children may resist a parent’s physical custody for a number of reasons, and their resistance can vary greatly in severity. Although intentional alienation is often alleged, a child pushing back on a parent’s access does not, by itself, mean a child is being “alienated” by the parent the child wishes to be with.
As detailed in Joan B. Kelly and Janet R. Johnston’s work on parental alienation, The Alienated Child: A Reformulation of Parental Alienation Syndrome, and other similar studies, children resist contact with a parent for normal, realistic, or developmental reasons that have nothing to do with a favored parent’s actions. These reasons could include the age of the child, a desire to be with the parent of the same sex, separation anxiety, accommodation preferences, contrasting parenting styles, the rejected parent’s own actions or inactions, or the child’s concern for a fragile parent.
However, a parent can knowingly or unknowingly drive a wedge between the other parent and child. Such actions can include badmouthing the other parent, limiting the other parent’s communication with the child, withholding access, manipulating a child, blurring boundaries between parent and child roles, creating unhealthy alliances, and more. When a parent behaves in one of these ways, it can erode a child’s relationship with the other parent, to the point that a child may refuse to spend time with the rejected parent.
When a child refuses one parent’s access, a lawsuit to enforce a possession order can arise. Thus, a parent under a requirement to transfer possession must be aware of his or her individual duties in turning the child over in accordance with court orders. Ramifications for failure to abide by a possession order could include fines, attorney’s fees, make-up time to the other parent, grounds for modification, contempt, and jailtime.
A contempt conviction in a possession proceeding requires, among other things, proof beyond a reasonable doubt that one parent willfully violated the possession order. When children are the ones refusing possession, parents facing an enforcement suit will often point to the required element of “willful intent” in asserting a defense of involuntary inability to comply with the court order. For if the child will not go, “how could I comply?” Applying this defense, Texas appellate courts have split on what is a “willful violation” of a possession order. Some courts have held that only overt or covert violations, such as actively discouraging or impeding visitation with other parent, are sufficient to find contempt. Other courts have held parents in contempt for mere passive violations, for example, when the parent fails to insist that a child go despite the parent’s ability to compel compliance.
What is clear is that a child’s preference alone does not control the issue. There is no legal authority that grants a child complete discretion over possession by a parent. If a child’s preference were taken at face value alone, it would neuter the court’s ability to enforce the state’s #1 public policy in assuring that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child.
When presented with claims of inability to comply, trial courts will typically analyze case circumstances as a whole versus solely based on the child’s resistance. The record unfortunately often reflects a history of gamesmanship or raises questions about witnesses’ credibility and self-interest. Thus, it is imperative that parents comply strictly and fully with their duties to surrender and deliver the child to avoid contempt.
If a parent has a child who is resisting change of parental possession, that parent should self-evaluate to determine if he or she is contributing to this dynamic. Parents should actively encourage the child’s relationship with the other parent, while being sure not to interrogate the child about time spent with the other or guilt trip the child by instilling how much the child will be missed when gone.
Finally, a parent should openly and actively communicate with the rejected parent about the child’s resistance, engage the help of family and friends, employ professionals, or seek family therapy.
If the problem persists, consider filing a suit to modify the possession order, as it is always better to seek permission from the court rather than forgiveness. HN
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Chris Meuse is a shareholder at KoonsFuller, P.C. and can be reached at cmeuse@koonsfuller.com.
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Recent Attorney Representation Issues in Family Law
BY BETH M. JOHNSON
After a recent parental-rights termination case, the father appealed, raising a claim of ineffective assistance of counsel based on an alleged conflict of interest. Although ineffective assistance of counsel is not typically a viable claim in civil suits, parental-rights terminations are quasi-criminal in nature, and parents are entitled to effective assistance of counsel when counsel is appointed to represent them.
In In re J.J., __ S.W.3d __, No. 06-2200016-CV, 2022 WL 1787337 (Tex. App.—Texarkana June 2, 2022, no pet. h.), one attorney was initially appointed to represent both parents, who were separated. When the Texas Department of Family Protective Services questioned whether it was permissible for both parents to have the same attorney, the trial court reasoned that it was acceptable because both parents were “rowing the same boat,” and the parents’ attorney assured the court he would inform the court if any conflict arose. Additionally, the mother and the father both consented to the dual representation.
Unfortunately, not long after that hearing a conflict arose. The appointed attorney withdrew from representing the mother, and a new attorney was appointed to represent her. The original appointed attorney continued to represent the father. Subsequently, the mother signed an affidavit voluntarily relinquishing her parental rights, and after a trial the court terminated the father’s parental rights.
Allegations of ineffectiveness must be firmly founded in the record. When an ineffective assistance of counsel claim is raised for the first time on appeal, the complaining party must show that the counsel’s conduct fell below an objectively reasonable standard of performance.
The father argued for the first time on appeal that he received ineffective assistance of counsel because the original appointed attorney should not have continued to represent him after the conflict arose. The Texas Disciplinary Rules of Professional Conduct prohibit “a lawyer who has formerly represented a client in a matter” from “represent[ing] another person in a matter adverse to the former client … if the representation in reasonable probability will involve a violation of [the Rule prohibiting disclosing a client’s confidential information]; or … if it is the same or a substantially related matter,” “[w]ithout prior consent.” Here, because the mother consented to the attorney’s representation of the father, this Rule did not preclude the representation.
Moreover, the father was required to show that his counsel actively represented conflicting interests. The record showed that despite the mother’s voluntary relinquishment, she still wished for father to retain his parental rights. Thus, the mother’s and the father’s rights were aligned, and father’s counsel’s withdrawal was unnecessary.
In In re Marriage of Pratz, No. 12-2000187-CV, 2021 WL 6061779 (Tex. App.—Tyler 2021, pet. denied) (mem. op.), an attorney (“Wife’s attorney”) appealed an award of sanctions against her after representing the wife in a divorce proceeding. Wife’s attorney wished to pursue a waste claim in the divorce, specifically with respect to funds allegedly spent by her client’s husband on his girlfriend. The girlfriend was involved in her own divorce and was represented by her own attorneys (“Girlfriend’s attorneys”) in that suit.
In an attempt to have the girlfriend testify at a hearing in the wife’s divorce, Wife’s attorney issued a subpoena to Girlfriend’s attorneys, who responded that service was improper. Wife’s attorney told Girlfriend’s attorneys they would not have to appear if they provided the girlfriend’s address, but Girlfriend’s attorneys refused to disclose that information. Wife’s attorney accused Girlfriend’s attorneys of being evasive and of allegedly violating the Penal Code.
Wife’s attorney tried again and issued another subpoena to one of Girlfriend’s attorneys. Girlfriend’s attorney responded that service was still improper and advised Wife’s attorney that Girlfriend’s attorneys did not represent the girlfriend in the wife’s divorce suit. Eventually, Wife’s attorney was able to personally serve the girlfriend with a subpoena.
On the motion of one of Girlfriend’s attorneys, the court granted sanctions against Wife’s attorney finding the initial subpoena on Girlfriend’s attorneys was groundless and brought for purposes of harassment.
Wife’s attorney argued that she was prohibited from contacting the girlfriend directly because the girlfriend was represented by counsel. However, the plain language of the Texas Disciplinary Rules of Professional Conduct prohibit a lawyer from communicating with another person if the lawyer knows the person has legal counsel in that matter. Thus, Wife’s attorney was not prohibited from contacting the girlfriend directly.
The appellate court affirmed the sanctions award, finding it was improper for Wife’s attorney to issue the subpoena on Girlfriend’s attorneys, who did not represent the Girlfriend in the wife’s divorce. HN
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Top 12 Things That Can Breakdown a Mediation
BY SUZANNE H. WOOTEN
After mediating over 1,700 cases in the last decade, I have found that regardless of the type of case, the following things can breakdown a mediation:
1. Scheduling mediation prema-
turely. If a case is not ready due to outstanding discovery and/or an incomplete investigation of the claims/defenses, mediation may not be effective if scheduled too early. Additionally, make sure to schedule a sufficient mediation session as a short session can put pressure on the mediator to rush through the issues, giving the impression that the claims are not important enough to have time to explore. Or, it may be perceived as “checking the box” of a mediation requirement, rather than a good faith effort to settle. 2. Not preparing. “Winging” mediation can negatively impact your client’s confidence in you and the mediation process. Prior to mediation, ensure that your client understands (1) realistic settlement options, (2) the risks if the case does not settle, and (3) the mediation process. If offers have been exchanged, provide them to the mediator prior to mediation, along with a confidential position statement. 3. Refusing to provide information. Even if you believe that your side complied with all discovery requests and the other side did not, make sure you have access during mediation to the documents, evidence, etc. that are critical to your position. Withholding information of your client’s claims could shut down any chance of resolution. Do not put the mediator in the position of being the discovery delivery service.
4. Taking the position that mediation
is a battle. Your client may follow your lead if you have an unyielding, combative demeanor. Your words and your attitude should not reflect that mediation is a battle. “Fight” mode, chest beating, or threats of trial are not persuasive. Conversely, if your client is histrionic, hysterical, or just stubborn, do not adopt their attitude or behavior.
5. Disregarding the mediation bound-
aries. “In mediation, we can ask for anything,” tells your client that there are no boundaries during mediation. In response, the mediator may need to bring your side down to reality. The requirement of “good faith” can be raised if you insist that the mediator assert a claim/offer that clearly has no basis in law or fact.
6. Asserting “all or nothing” or
“we’ll just go to trial”. Similar to unfounded offers, digging in or falling back on entrenched positions equates to a brick wall for the mediator. Being immovable when there are legitimate moves is not productive.
7. Asking the mediator’s opinion
about the strength of your client’s case. Not only will this remove the mediator from the role of the neutral, it violates a mediator’s ethical duty not to impose their own opinion in mediation. 8. Making an unrealistic first offer. Unrealistic first offers or counter-offers may be seen as bad faith or cause others to shut down. If an offer was made before mediation, do not begin with an offer that will be perceived as worse than your pre-mediation offer. The mediator may have to spend time working toward a different starting point to keep everyone at the table. 9. Counting concessions. Do not utter “we’ve given everything, they’ve given nothing” or “that offer is not fair”. Such negative statements can fuel unrealistic expectations. Mediation is a give and take. Neither room knows what the mediator is managing in the other room, nor what efforts the mediator has made to work toward a resolution. Focus on the progress of the negotiations and the big picture. 10. Claiming “bad faith”. Disputes are based upon disagreements on facts and fairness. Even if you strongly disagree with an offer that does not mean that the offer was made in bad faith. Claiming bad faith will negatively affect your client’s confidence in the mediation process. Remember, the mediator is navigating a different perception of the dispute in each room. 11. Questioning the mediator’s role. The mediator is a facilitator and the messenger at times. Listen to the message and process it before responding. Assailing the mediator or blaming the mediator because the other side does not accept your terms will diminish the effectiveness of the mediator to your client and may put the mediator on the defensive. 12. Calling an impasse. The mediator calls the impasse or recess, not the attorneys or parties. Usually, the mediator knows the settlement limits of the parties and the mediator may still have ideas in their back pocket for settlement. HN
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Suzanne H. Wooten is the Founder and Director of North Texas Litigation Solutions. She can be reached at ntxlitsol@gmail.com.
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Focus Family Law
BY RACHEL LI
Spoliation is defined as the act of losing, altering, or destroying evidence. In 1852, the Texas Supreme Court in Cheatham v. Riddle,8 Tex. 162, 167 (1852). held that “everything is to be presumed in odium spoliatoris.” Meaning that everything is to be presumed against the wrongdoer so that, to the extent possible, the innocent party is restored to where they should have been. While spoliation is normally applied to documentary and digital evidence, broadening the spectrum of applicable evidence in family law drug cases has the ability to streamline the issues in the case to a simpler resolution to protect the children of the suit.
Family law cases are known to be volatile due to the myriad of emotions the litigants experience before, during, and after the case. Fleeting emotions can frequently erase rational conduct and thought, and violations of interim and temporary orders during the pendency of a custody and divorce case can quickly become the norm. Add a substance use disorder (SUD) to the fray, and a recipe for violations of court orders may be a daily occurrence. The National Center on Substance Abuse and Child Welfare estimates that over sixty percent of removals by child welfare agencies in Texas were due to alcohol abuse and drug use. SUD’s are not specific only to CPS cases and are quickly becoming a trend in private custody cases.
Court-ordered drug testing is used regularly in private custody cases and can 1) absolve the accused of wrongdoing, or 2) confirm the suspicion of drug use. However, the orders are useless to protect the children who are the subjects of the suit when the parent does not comply with the drug testing orders. Rather than file an enforcement action to hold the noncompliant parent in contempt of court, a motion for sanctions for spoliation of the evidence can give the case the teeth needed to protect the children of the suit. Unlike an enforcement motion that may financially sanction a party or subject the party to unlikely short-term incarceration, only a sanction against the wrongdoer can make the innocent party whole by establishing a positive test result against the wrongdoer.
In order to prevail on the motion, the court must find that 1) the spoliating party had a duty to reasonably preserve evidence, and 2) the party intentionally or negligently breached that duty by failing to do so. Brookshire Brothers, Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014).
A duty to preserve evidence arises when a party knows or reasonably should know that there is a substantial chance that a claim will be filed and that evidence in its possession or control will be material and relevant to that claim. Id, at 21. In this instance, the party knows that the evidence in his or her possession will be material and relevant to that claim, which is probably why they are noncompliant. The alleged drug user is the only person who has custody and control of the evidence contained in and on his or her body because the drug testing is conducted by samples of urine, fingernail clippings, or hair strands from the party. The court’s order for the parent to submit to drug testing further compounds the duty to preserve the evidence through the submission of the body samples.
Noncompliance with the court’s order for drug testing shows an intentional breach of the duty to preserve the evidence because the party acted with the subjective purpose of concealing or destroying discoverable evidence. At a minimum, the destruction of the evidence by the passage of time and normal bodily functions of the parent that eradicate the evidence contained in and on the person can establish negligent spoliation that irreparably deprives movant from any meaningful ability to present a claim.
Movant must show the court that the spoliated evidence is extremely prejudicial against movant; then establish that a lesser remedy is insufficient to restore the prejudice caused by the noncompliant party. Drug test results are either negative, positive, or inconclusive, all of which are taken at face value in family courts and are nearly indisputable with few exceptions. A lesser sanction of a presumption that the drug test results are positive is not the same as a sanction against the noncompliant party of a finding of positive results for each drug in the drug testing panel requested for each date of missed testing. The judge or jury can disregard a presumption at final trial because a presumption takes into account the weight of evidence while a sanction of a finding of a positive test is indisputable.
As the number of family law cases involving a substance use disorder continues to rise, it is increasingly important that the practitioner utilize all available tools to advocate for their client and seek the best interests of the children. Spoliation sanction can be one of those tools. HN
Rachel Li is the Managing Attorney at Li Family Law Group. She can be reached atrli@lifamilylaw.net.
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e Mustang Bar Law Alumni Association
A Checklist for Going Off on Your Own
BY EMILY BURNS
Starting your own business can be simultaneously exciting and nerve-racking. It requires careful planning and commitment to get off to a good start. There’s often a lot more work to manage—you may have to take more financial risks, work longer hours, and rely on an unsteady income at first. However, the prospect of being your own boss, setting your own hours, building a business, and carving your own path in the legal world has a lot of appeal for many attorneys and can be extremely rewarding. In this article, we will walk you step by step through some of the essential steps to launch a successful law firm in the Digital Age:
Choose Your Practice Area
When choosing an area of law to practice, consider both your ideal work environment and what will provide you with a rewarding and long-lasting career. Whenever possible, explore a field of law which is underrepresented.
Name Your Firm
Whether you are starting off on your own or with a partner, there are a variety of possible naming scenarios for your business. It is important to remember most states do not allow lawyers to operate under a trade name, like “American Lawyers.” Generally, the name of an owner or partner must be included in the title of the firm.
Obtain the Necessary Licenses and Permits
Determine if your state requires you to establish your firm as a business entity and which type of entity you qualify for: 1. Sole Proprietorship 2. General Partnership 3. Limited Liability Partnership 4. Professional Service Corporation/Professional Association 5. Professional Limited Liability Company
Open Bank + Trust Accounts
Make sure that your business’s accounts have been correctly set up to start accepting payments. This includes ensuring you have lined up an attorney trust account and operating account and securing malpractice insurance, if that is required, such as: • Operating Account • IOLTA • Non-IOLTA Trust Account
Sign Up for Business Insurance
Protect your firm’s success by verifying that you are properly insured. Check your own state’s rules on professional liability coverage. Depending on your area of practice, you should make a reasonable decision as to whether you will be better protected by having professional liability insurance in the event of a claim. Odds are, your clients will likely be better protected as well. Areas of insurance include: • Professional Liability • Workers’ Compensation • Health Insurance • Property, Casualty & Cyber Insurance
Calculate Costs + Expenses
Every lawyer needs to know how much income will be required over a given period of time to successfully cover both their personal budgetary needs and the costs of running a practice. Many studies have shown that, if you are correctly priced in your local market, an income of four hours per business day should be sufficient to successfully operate a law office. It is most helpful to consider these variables: • Hourly rate/daily income • Anticipated overhead • Personal budget/living costs • Work schedule/bandwidth
Establish Your Hourly Rate
There are a few different ways to determine your hourly rate as a new lawyer. Many attorneys will put together a budget based on monthly expenses. Divide your total expenses by the amount of billable hours you can reasonably work each week to get a baseline of the effective rate you will charge for your services. Of course, not all hours will be considered billable hours. Every legal professional is tasked with managing collections and other administrative duties that you may want to factor in when determining your rate.
Adopt Secure Legal Software
Today’s law firms can be far more productive (and profitable) with modern technology, such as timekeeping, payment processing, and practice management software solutions. These are a few different types of software you may want to consider: • Word Processing • Time and Billing • Conflicts Checking • Case Management • Accounting System
Choose the Right Payment Processor
Of course, your law practice cannot be successful if you are not getting paid regularly and on time. That is why it is important to choose a payment processor that prioritizes your needs and ensures your payments are reliable and secure. It is also best to use an online payment processor designed specifically for the legal industry. As you process transactions, your fees will be properly separated between your trust and operating accounts and deposited accordingly. You will also avoid the risk of third-party transactions debiting from your IOLTA account.
For more information on LawPay benefits as a Dallas Bar Association member, log on to www.lawpay.com/dallasbar. HN
Emily Burns is a Senior Content Writer at LawPay.
Trial Lawyer of the Year: Veronica Moyé
CONTINUED FROM PAGE 1 with. Watching them go through the process is very satisfying,” Moyé said.
She credits her mentors for elevating her to her great heights. One piece of instrumental learning comes from a Cravath, partner she worked with early in her career, Tom Barr, who told her, “We win cases by being smarter and working harder. Neither is enough. You have to do both all the time.” Another mentor, Ted Wells at Paul Weiss, taught her the importance of authenticity. He taught Moyé that she need not advocate like a man to succeed—but to present in her own style while maintaining her own cultural bonds.
During trial, Moyé learned it is important to motivate and inspire rather than just give orders. “Trial should also be fun,” Moyé said. And while she may have fun, Moyé ‘s trusted trial ritual is simply “super-preparation.” During trial, she gets very little sleep, often dreaming of her case and waking up to jot down notes for the next day.
As Trial Lawyer of the Year, Moyé is wellrespected in the Dallas legal community. Kim Askew, Moyé ‘s friend in the profession for years, notes Moyé is “an exceptional lawyer and person.” The DLA Piper partner says Moyé, “built a stellar law practice in a space that had been long dominated by men. While rising to the top of the profession, she raised beautiful and accomplished daughters. She sets an example for all of us and deserves this great honor.”
Spoken like a true trial lawyer, Moyé says, “Candor, authenticity, honesty, and preparation—those are the things that help you win trial and those are things that clients ultimately appreciate.”
Congratulations to Veronica Moyé, the Dallas Bar Association Trial Lawyer of the Year. HN
Gracen Daniel is a commercial and intellectual property litigator at Griffith Barbee PLLC. She can be reached at gracen.daniel@ griffithbarbee.com.
From the Bench
BRETT BUSBY
Supreme Court of Texas Why did you decide to become a judge? I’m a third-generation Eagle Scout, and my parents taught me to find opportunities to be useful and serve others. As a law clerk to Justices Byron White and John Paul Stevens of the U.S. Supreme Court and Judge Gerald Tjoflat of the U.S. Eleventh Circuit Court of Appeals, I became interested in judicial service. And after specializing in appeals for twelve years, I gained experience that I could put to work for the people of Texas. I also developed a firm conviction that the role of a judge is to decide the issues presented by the parties impartially according to the law and the record, not to serve as an advocate or seek a particular outcome. Why do you participate in bar programs? I enjoy participating in many bar programs at the local, state, and national level because they provide excellent opportunities to learn and improve our skills, promote professionalism, serve our community, and get to know our fellow attorneys. What are you currently reading? “Who Decides? States as Laboratories of Constitutional Experimentation,” by Judge Jeff Sutton Fun fact about me: I have played the violin since the age of three.
