Category: Family Law

When a couple’s relationship has become so unraveled that they are seeking a divorce, there may be a certain amount of ill-will between them. Still, one or both parties may want to at least try to reach an out-of-court settlement and may ask their estranged spouse to join them in mediating the divorce. In addition, sometimes mediation is ordered by the court in a divorce case. In these situations, is a person in Texas obligated to attend divorce mediation sessions?

Mediation is a way of negotiating a divorce settlement. The mediator is a neutral third party who oversees conversations between the spouses, facilitating discussions that could lead to an agreement on the issues. Some couples who are on amicable terms may choose mediation, but, if there is a lot of ill-will between the parties, can one spouse refuse to participate?

If mediation has been ordered by a judge, then both parties must attend and participate. Failure to do so could cause the resisting party to be held in contempt of court. However, if one spouse requests mediation without a court order, then the other is free to decide whether they want to participate.

It can help to provide your ex with a written response regarding your decision to mediate your divorce. This can show your willingness to cooperate if you agree to mediation or it can provide your reasoning if you decline.

With the help of the mediator, even couples who can barely speak to one another could still give mediation a go. And, if they are not ordered by the court to do so, they may still want to consider mediation as a means of avoiding litigation.

Divorce is a difficult process, and like many others, you may hope that there is a way you can ease the stress and complication that often comes with it. Like many other Texas couples, you and your spouse may choose to try mediation for your divorce. However, every situation is different, and this may not be what actually works for you.

Mediation is a process that allows two parties to work through disagreements and issues in a respectful and productive manner. With the help of a neutral third-party mediator, you and your spouse will use discussion, negotiation and other means of dispute resolution to resolve divorce disagreements and reach a beneficial resolution. In some cases, mediation works and is a smart choice – but what if that is not the case for you?

Mediation, child custody and your future

Child custody is often one of the most contentious issues of a divorce. It’s not easy to make choices that will impact your children for years to come, and some parents may resort to mediation to resolve their custody disputes. This is a sensitive issue, and sometimes the mediation process breaks down. Signs that mediation is not working for you may include:

• You find that you and the other party are talking about the same things again and again but not reaching any decisions.
• One or both parties are hostile or there are personal attacks instead of helpful discussions.
• Mediation sessions drag on without any meaningful progress in the issues you two need to resolve.
• You and the other party keep discussing things that do not relate to the children.

Mediation is about compromise and working together, and in some situations, that is simply not possible. If you find that you may not be getting anywhere with mediation, don’t panic. This does not mean that you failed or that you won’t be able to pursue a reasonable final divorce order.

If you are not able to continue with mediation, you may want to explore the possibility of moving ahead with another option. Litigation may be necessary, but it can be helpful to first discuss your case with an experienced family law advocate who has your best interests in mind. When mediation fails, you would be wise to start exploring ways you can still protect your rights and fight for the best post-divorce future possible.

(California Court of Appeal) – Affirmed. The juvenile court awarded the father sole legal and physical custody and ordered that the mother have no visitation with the child. The mother appealed the order arguing that the juvenile court had no jurisdiction to make such an order because the child resides in South Carolina. The appeals court held that the initial child custody determination was made in California and that California courts retained exclusive and continuing jurisdiction.

(California Court of Appeal) – Affirmed. The juvenile court granted visitation to the ex-boyfriend of the mother. The mother sought to block such visitation, but the juvenile court found that it was in the best interests of the child. The appeals court found no abuse of discretion.

When parents in Dallas divorce, the split is not always amicable. Rancor and bitterness may continue well after the divorce decree has been signed. Sometimes, these feelings can cause issues where one parent is wrongfully denied visitation with their child by the other parent. This may happen if the other parent feels the parenting time order is unfair or if the parent being denied visitation has fallen behind on their child support obligations. No matter what the reason, however, a parent being denied visitation has rights.

Parenting time interference can be direct or indirect. Direct interference means a parent physically keeps the child away from the other parent without the other parent’s consent, refuses to return the child when their parenting time is up or absconds to another state with the child in violation of the divorce decree.

Indirect interference with parenting time may be subtler, but it can still be damaging. For example, a parent might refuse to allow the child to contact the other parent. Or, a parent could stop the other parent from attending events in the child’s life, such as school events or extracurricular activities. Another form of indirect interference takes place when one parent has the child spy on the other parent or encourages the child to refuse to spend time with the other parent.

However, interfering with parenting time has consequences. A court could provide the harmed parent with make-up visitation periods. The offending parent may be ordered to pay for any counseling and education. The offending parent may be fined and ordered to pay court costs and attorney’s fees. In addition, the child custody and visitation order could be temporarily or permanently modified.

What penalties or changes will be ordered in situations where one parent is wrongfully denied visitation depends on the facts of the case. Those who want more information on father’s rights and visitation should seek professional guidance.

(United States Second Circuit) – Affirmed in part, vacated in part, remanded. The District Court erred in granting a petition to have a child returned to his habitual home of Italy under the Hague Convention. Although it was affirmed that Italy was the child’s habitual residence if repatriating him would expose the child to a grave risk of harm the district court isn’t necessarily bound to return him.

Sometimes, if a child’s parents are unmarried when the child is born and the child’s mother has sole custody of the child, she may wish to pursue child support from the child’s father. Similarly, the child’s father may want to pursue visitation rights. For either of these events to occur, however, paternity must be established.

In general, paternity can be established in Texas either voluntarily through the execution of an acknowledgement of paternity or through DNA testing and a court hearing. However, there are times when a man will be presumed to be a child’s father. The following are circumstances when this presumption may occur.

Under Texas law, paternity will be presumed in several circumstances. If the child’s parents were married when the child was born, the husband is presumed to be the child’s father. If the child is born before the 301st day following the date the marriage ends due to death, annulment, invalidity or divorce, the husband is presumed to be the child’s father.

If the man married the child’s mother before the child was born and voluntarily asserted paternity of the child, paternity may be presumed within 301 days of the end of the marriage (even if the marriage was invalid), and either:

 

• The assertation of paternity is part of a record filed with the vital statistics unit; or
• The man voluntarily signed the child’s birth certificate as the child’s father; or
• There is a recorded promise that the man agreed to support the child as his own.

Finally, paternity may be presumed if, during the first two years following the child’s birth, the man lived with the child and represented to the public that he was the child’s father.

There are ways to rebut these presumptions of paternity. However, it is important to understand what is required to determine whether a man is a child’s father. Knowing whether the man is presumed to be the father is important when legally establishing paternity, so both the child’s mother and father can pursue their rights.

Family law matters can be complex and confusing. One area that can be especially confusing is paternity. For men in Texas, they may not fully understand what it means to establish paternity or to be asked to submit to a paternity test.

A paternity action could arise is various matters. To begin, a man may file this action when he believes he is the father of a child and wants to establish rights. It could also occur when the mother of a child believes that a man is the father, and the man is seeking to prove that he is not the father and is, therefore, not obligated to pay any child support.

At Katie L. Lewis, P.C. Family Law, our attorneys understand that paternity actions can get complex and emotional. In some cases, they can be lengthy, because even when paternity is established, the parents must still sort through major decisions, such as custody and support. Our law firm is devoted to helping parents on both sides of a paternity action. Whether that means helping a client obtain his rights to a child or enforcing the financial obligations of the named father, our goal is to ensure that the rights of our clients are protected and upheld.

When establishing paternity, this often means addressing a wide range of family law issues. It can get overwhelming when working through custody, placement and support matters, making it imperative for fathers to fully understand their situation, what rights they have and what options are available to resolve any family law issues related to paternity actions.

(United States Seventh Circuit) – District court dismissal of lawsuit for lack of standing affirmed, where plaintiff could not show injury was traceable to Defendant. Plaintiff filed suit in federal district court claiming the Illinois Marriage and Dissolution of Marriage Act invalid on constitutional grounds. Lawsuit named as Defendant the psychiatrist who testified, in a previous case, that Plaintiff was trying to turn children against the other parent and recommended sole custody be given to other parent.

(Supreme Court of California) – Affirmed. The Appeals court held that the current policy of the California Department of Social Services treating court-ordered child support as income and using the same funds twice as income for both the paying household and the receiving household does not violate the Welfare and Institutions Code section 11005.5.