Frequently Asked Questions

What type of mediation services do you provide?

Whether you are involved in divorce proceeding or attempting to modify an existing court orders, I can mediate your case for you. I am not only a certified mediator but I’m also an attorney that is familiar with the family law statutes and guidelines. So, I can mediate a variety of family matters such as property disputes, conservatorship, child support, possession and access.

Mediation is a process that will allow you to negotiate an acceptable agreement between you and the other party. The mediation process is confidential, so neither party can use any communication made during these proceedings at a later court hearing. As your mediator I will remain a neutral third party. My only job is to help facilitate communication between the parties that will promote an agreement. I will not make any decisions for you.

Family cases can be quite expensive and emotional; therefore utilizing the services of a skilled mediator may help you avoid a lengthy lawsuit. As your mediator I can help negotiate a resolution to matters pending in a family law case. A binding mediated settlement agreement is enforceable for both temporary and final orders. If the parties reach an agreement you may be able to prevent any future court actions or even trial.

What should I expect as it relates to child support?

Child support is generally set according to a formula set forth by statute. Under Texas law, child support is mandatory unless the Court determines that the statutory guidelines would not be proper. The percentages are as follows:

  • Percentages Based on Number of Children:
  • 20% of net resources for 1 child;
  • 25% of net resources for 2 children;
  • 30% of net resources for 3 children;
  • 35% of net resources for 4 children;
  • 40% of net resources for 5 children;
  • Not less than 40% for 6 or more children.;

Please note that the net income of an individual includes wages or salary, commissions, overtime, tips, bonuses, dividend income, self-employment income, net rental income, severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits, unemployment benefits, interest income, gifts, prizes, spousal maintenance, and alimony.

To determine the net resources of a person, the court will calculate the total amount of money received from all resources and will allow deductions for social security taxes, federal taxes using only one deduction, state income tax, union dues.

The court will also allow a reduction or discount to the parent paying child support for other children not before the Court, which the party is responsible for supporting. The court may also consider additional factors when calculating a child support amount- these reasons should be discussed with your lawyer.

In addition, the Court will order health insurance to be provided for the child. The parent paying child support is generally the parent ordered to provide health insurance for the child. The statute will also allow a deduction for the cost of the child’s health insurance for the parent insuring the child. In most cases, both parents share the cost of uninsured medical expenses not covered by the medical coverage.

What does grandparent visitation rights mean?

Under certain circumstances, Texas law does allow a grandparent to file a petition for visitation rights with a grandchild.

First, you must be able to demonstrate that denial of access to your grandchild will significantly impair your grandchild’s physical health or safety and emotional well being; AND that the child’s parent isn’t acting in your grandchild’s best interest. The Texas Family Code stipulates that for a Judge to grant a grandparent’s request for visitation with a grandchild, the grandparent seeking visitation must be a biological or adopted grandparent. Step grandparents may not be granted visitation. Also, at least one of the child’s parents (biological or adopted) must continue to have parental rights to the child and have not had parental rights terminated. In addition, a grandparent must overcome the presumption that the parent is acting in the best interest of the child and that denial of visitation with the grandchild would significantly impair the grandchild’s physical health and emotional well-being. Lastly, a grandparent must show that he or she is a parent of a the parent of the grandchild and that the parent of the grandchild: (1) has been incarcerated during the three month period prior to your filing the suit; (2) has been found by a court to be incompetent, (3) your child has died; or (4) your child does not have actual or court-ordered possession or access to your grandchild.

The grandparent seeking relief from the Court will be required to file a sworn affidavit with facts supporting their beliefs or allegations.

What does Adjudication or Acknowledgment of Paternity mean?

A parentage lawsuit is an original petition to establish the child’s legal relationship with a biological parent and to establish a court order including but not limited to custody, visitation, medical and child support for the child. Please be advised in certain circumstances, the court may allow the biological mother to be reimbursed for pre-natal and postnatal expenses related to the child’s birth.

The statute provides the following people to file a parentage case: (1) the child; (2) the mother of the child; (3) the man whose paternity of the child is to be adjudicated; (4) a relative of the child’s mother, within the 2nd degree of consanguinity, if the mother is deceased; (5) any government agency, including the support enforcement agency, authorized by law; (6) an authorized adoption agency or licensed child-placing agency; (7) a representative authorized by law to act for an individual who would otherwise be entitled to maintain a proceeding but who is deceased, is incapacitated, or is a minor; or (8) a person who is an intended parent.

What is an annulment?

Simply put, an annulment refers to a proceeding to have a marriage declared void or like the marriage never happened. In an annulment suit, the court does have the authority to issue orders concerning children and even divide property.

To obtain an annulment the Texas Family Code requires that one or more of the following occur:

(1) the parties are related, by blood or adoption, or (2) either party was previously married and the prior marriage has not been dissolved. An annulment may also be granted IF at the time of the marriage one party to the marriage was (1) underage, (2) under the influence of alcohol or drugs, (3) impotent, (4) mentally incompetent, (5) forced to marry by fraud or duress, or (6) was misled about a prior divorce. Often, the individual seeking an annulment must stop living with the other party once they discover the issue.

What does the division of assets entail?

In Texas, there It is presumption that all property acquired during the marriage is community property. However, you can rebut this presumption through clear and convincing evidence of the character of a particular asset. Separate Property is considered any property owned by a spouse prior to marriage or acquired by a spouse during marriage by gift or by inheritance. It can also include monies recovered for personal injuries. Please be advised that the Court cannot divide an individual’s separate property in a divorce proceeding.

The Court can only divide the community assets and community liabilities in a “just and right” division. Depending on the circumstances, a Court has the ability to award more or less community property including community liabilities to one of the spouses. So, the parties property may not always be divided in a 50- 50 split.

  • In these proceedings, the Court can consider a variety of factors such as:
  • 1. Fault in the break-up of the marriage;
  • 2. Differences in earning capacities and education;
  • 3. Age of the parties;
  • 4. Health of the parties;
  • 5. Any special needs of the parties;
  • 6. Separate property available to either spouse;

Each party must submit an inventory and appraisement that identifies all property, assets, accounts and their value, as well as all liabilities. The inventory also lists any separate property either party is claiming. Based on the evidence, the Court will determine the value of the parties property and liabilities.

There are so many ways to determine property and you should discuss this matter in detail with your attorney.

What do I need to know regarding child custody process?

Under the Family Code “conservatorship” or “custody” means the right a parent has to make certain decisions relating to their child. The Court or the parties by agreement will include the right to determine where the child lives, the right to determine where the child goes to school and to make other educational decisions for the child, the right to consent to certain medical procedures, and other specific rights, as set out in the Texas Family Code. In most cases, these rights can be shared by the parents or one parent may hold these rights exclusively. Also, one parent may have more rights than the other parent or the parent may share the rights.

In Texas, there is a presumption that it is in the best interest of the child that the parties be appointed Joint managing conservators. However, this presumption may be rebutted based on the conduct of the other parent and the Court may grant a parent as sole managing conservator and a possessory conservator instead of joint managing conservator. You should discuss the difference between sole and joint conservatorship with your lawyer.

Under the Texas Family Code, there is a presumption that it’s the best interest of the child to allow a “non-custodial” parent to have a standard possession order of a child. Basically, a Standard Possession Order allows a parent have visitation with a child every 1st, 3rd, and 5th Fridays of each month at 6:00 p.m. until the following Sunday at 6:00 p.m. or return to school the following Monday; on Thursdays of each week during the regular school term beginning at 6 p.m. and ending at 8 p.m., or the noncustodial parent may choose to have the child, beginning at the time school is recessed on Thursday and ending at the time school resumes on the following Friday; 30 days in the summer; and every other holiday period. Please refer to section 153.316 of the Texas Family Code.

What is spousal maintenance and when does it apply?

In Texas, a Court can order spousal maintenance if either one of the following two circumstances exist:

A spouse has been convicted of a crime or received deferred adjudication for a crime that can also be considered an act of family violence and this has occurred within two years of the filing of the suit or while the divorce is pending; OR the parties have been married at least 10 years and the financial resources (including any property received by the requesting party in the divorce) of the requesting spouse are limited. In this situation, the spouse asking for maintenance must also be able to prove one of the following:

a. They are unable to support themselves because of a physical or mental disability;

b. They have custody of a child of the marriage of any age with a physical or mental disability who requires substantial and continuous care and this prevents the parent from earning enough income to provide his or her minimum reasonable needs; or

c. They lack the ability to earn a living which would meet their minimum reasonable needs.

The Court may also limit the number of years a party can receive spousal maintenance. Generally, the Court can order a payment period not to exceed five years if the couple was married between 10 and 20 years, or not to exceed seven years if the parties were married between 20 and 30 years, or not to exceed 10 years for a marriage longer than 30 years. Please note, that if the party receiving spousal maintenance cannot support themselves in that time period due to a physical or mental disability or the party’s duties as the custodian of an infant or young child of the marriage, or any other compelling reason for why the spouse can’t earn sufficient income to provide their minimum reasonable needs.

What are the steps in child adoption?

The first step to an adoption begins with the parental rights of at least one of the birth parents must be terminated by court order. Second, a party must file a petition for adoption. Please note, that if the petitioner is married then both the husband and wife must agree to the adoption. In Texas, the statute also requires that a child must live with the adoptive parents for at least six months. Usually, the Court will appoint an ad litem attorney to represent the child’s best interest and a social study, background check, and criminal history check of the adoptive parents is required. Third, prior to the finalization of an adoption the following must be on file with the Court by the adoptive parents- the termination suit, completed social study report. Fourth, unless the adoption is a stepparent adoption, a health, social, education, and genetic history report of the child must also be prepared and placed on file with the Court. Finally, after the completion of all requirements then a hearing can be held. During this proceeding the court will determine if it is in the best interest of the child to be adopted by the petitioners.

What are modification of court orders?

Generally, a person can request a modification of an order if there has been a significant change in the circumstances of the parties or of the child. In Texas, any individual that is affected an existing order may request to modify a prior custody, child support or visitation ruling by filing a petition in the court that previously entered the order concerning the children.

What should I expect with a child custody case?

If you are seeking to change custody less than one year after the original order was signed, then the court has special requirements that you must show in a sworn affidavit before the suit can go forward. In the case of an emergency, the timing of the suit is usually not an issue. But in other circumstances, it is probably wise to wait at least one year before you attempt to change custody.

Also, by law, a child 12 years or older has the ability to confer with the Judge regarding where the child wishes to live but this preference is not binding on the court if the Judge doesn’t believe that it is not in the child’s best interests to reside with the preferred parent. Custody issues are extremely complex and you should discuss this matter thoroughly with your attorney.

Child Support Cases

A party may seek a modification in child support and may request an increase or decrease if there has been a substantial change in circumstances of either parties or if the child’s needs have changed. A child support order can be changed if it has been at least three years since the previous order and the new amount calculated under the child support guidelines differs by either 20% or $100.00 from the amount of support currently ordered.

Protective Orders

A protective order is a court order issued to protect victims of family violence and dating violence.

“Family violence” is an action or the threat of an action by a member of a “family” or “household” against another member of the “family” or “household” that is intended to cause physical harm, bodily injury, physical assault or sexual assault or reasonable fear of such action. Abuse toward a child of the family or household and dating violence are also “family violence.”

To obtain a protective order, the individual seeking the order must prove that family violence has occurred and is likely to occur in the future. The person seeking the protective order can be granted through testimony alone or other supporting evidence like a police report. In Texas, there is no fee to the individual seeking a protective order. Please be advised that a person found to have committed family violence may required to pay for court costs.

  • Generally, a protective order will prevent the offending party from:
  • 1. Committing more family violence;
  • 2. Communicating directly or indirectly with a person protected by the order;
  • 3. Going near the home or work place of a person protected by the order;
  • 4. Going near the home, day care or school of a child protected by the order;
  • 5. Following, harassing, annoying, alarming, abusing, tormenting, or embarrassing a person protected by the order; and;
  • 6. Having a firearm.;

In most cases, if the offender violations the protective order they can be arrested. In addition, if the person that violates the protective order is in the country illegal, that person can be deported. Any violations of a protective order may result in the offender facing criminal charges.

Name Change Request

If you are seeking a divorce you may request a name change in your petition without having to pay an additional fee. If you are seeking a name change separate and apart from a divorce proceeding then you must file a petition with the Court and pay all required fees.

  • When an adult is requesting a name change they must be able to submit the following information to the Court before their petition can be granted:
  • 1. The petitioner’s name and current address;
  • 2. The full name you are requesting;
  • 3. The reason for the name change;
  • 4. Whether you have been convicted of a felony;
  • 5. Whether you are required to be registered as a sex offender;
  • 6. A complete set of your fingerprints on a fingerprint card approved by the Texas Department of Public Safety and the FBI; and;
  • 7. A state and FBI background check completed in connection with the fingerprint card submitted to the Texas Department of Public Safety.;
  • 8. The petition for name change must be sworn to before a notary public;

What are enforcements proceedings?

An enforcement is a proceeding filed against an individual that is not in compliance with a court order. An orders can be enforced by requesting that a Court hold the violator in contempt of court. A person found to have violated the court order may be fined and/or placed in jail for violating the order. Please note, that not all terms of a court orders are enforceable by contempt. Usually, most people seek an enforcement of child support, visitation, spousal maintenance and property divisions.

A party seeking an enforcement must file a motion with the court then the matter must be set for a hearing by the Court. The law requires that the person accused of violating the court order be personally served with the motion for enforcement. The motion for enforcement will include an ordered to appear requiring the violator to come to court at a specified date and time. A person can be served with the motion for enforcement by a constable or authorized private process server. The person seeking the enforcement can’t serve the papers, nor can the paperwork be mailed or left at the person’s residence. The statute requires that the violator have at least ten days notice of the hearing and the alleged violations. If the person accused of the violations does not appear in Court as designated by the paperwork then the Court can issue a warrant for the violator’s arrest and can also grant a default judgment for the past due child support. Please note that a person must be present in court to be held in contempt of an order.

© 2006 Shirley A. Mitchell P.C. Attorney At Law, All Rights Reserved