Texas Law & the Best Interest of the Child

Best Interest: The Texas Family Code commands that “The best interest of the child shall always be the primary consideration of the court... “ 15.002 TFC.

Okay, but what is the “best interest of the child”?  What does it mean?  The Texas Family Code gives no definitions of “best interest”.  What kind of evidence does the Judge want to hear?  What do we tell the Judge?

No legal definition of best interest. The Texas Supreme Court wants Judges to consider a number of factors.  Their list suggests that the Judges consider all facts that “appear to be pertinent.” Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). If the Texas Supreme Court cannot, or will not, define “best interest”, it appears we must create our own list.

List of negatives: Let us start with negatives.
Who introduced the child to adult themes in drugs and alcohol? You were drunk (or high) in front of the child?
Who you introduced the child to adult themes in sex? You and your friend allow your child to see -What!?
Who you introduced the child to adult themes in family violence? Your family arguments involve fists?
Do you have a room, bed and toys for the child?  Your child sleeps on the couch?
Do you have druggie friends around your child?
What bad things are on your Facebook page?

List of Positives: Let’s consider positive things.
Who prepared meals for the child?
Who took the child to the doctor?
Who talks to the child’s teachers?
Who got the child to dance or baseball or soccer?  Who attends the games?
Who got the child up in the morning?  Puts the child to bed at night?
Who bought clothing for the child?
Who actually read a book about child discipline?
What are your child’s grades from school?

Make your case better: What can one do to help a case on “Best Interest”?
Hire a maid to clean your residence. She could testify about your neat and tidy home.  She will be in your house and  observe your close relationship with your child.
Go to PTA or PTO meetings, participate in school conferences. Get to know the teacher.
Go to church and Sunday school regularly.  Get to know your child’s Sunday school teacher and pastor.
 Daycare workers also observe you and your child.  Get to know them.
Read a short book on child rearing or discipline.
Take the child out for pizza once a week.  Let the child talk.  What is he or she thinking?
Take some photos of you and your child having fun.
Write everything down.

Summary:  You can make your case better, and help your child, by taking some steps suggested in this article.

Texas To Enhance Family Protective Orders

Texas adults are able to file Applications for Protective Orders to protect their families from violence. The police can arrest a person violating the protective order. The victim gets immediate protection. The violator sits in jail, until his hearing for violating the protective order.     


The Texas legislature is moving to increase protection for victims of family violence. In SB 819, the jurisdiction of  a court is expanded  to allow it to enforce protective orders from another court.  If a woman gets a protective order in Dallas and moves to Tyler, the Tyler court could enforce violations of the Dallas order.  The witnesses would be in Tyler, so the Tyler court hears the case.


The Tyler court would also be able to enforce a protective order through contempt. 


With regards to a “dating relationship” that becomes abusive, an Application for a Protective Order may be filed by a member of the dating relationship, even if the applicant is a child.  The child may sign a statement under oath, which will be accepted by the Judge.


The child may be a 15 year old girl dating a violent 20 year old man.


The child may also be a 9 year old girl of a single mother dating a violent man.


SB 819 adds another warning to would be violators, as if drug addicts or abusive spouses read warnings.


“Dating violence”  is expanded to include conduct directed against a child. Hitting the mother is family violence. Hitting the mother’s 9 year old girl would also be family violence.  Being nice to mommy is not a defense to acts of violence against her 9 year old girl.  Indeed, if the mother is in a coma and cannot take action, her 9 year old girl can ask for a protective order on her own.


The legislative session ends May 30th.  If SB 819 passes, it will take effect and the trouble will begin September 1st.

Understanding Bankruptcy

Bankruptcy:  Bankruptcy helps people unable to pay off debts.  There is a technical side to the law.  There is also an emotional side that touches one’s basic beliefs in right and wrong.  To understand bankruptcy, one needs to go to the beginning.  


Beginning:  In 1848, the nation was consumed with the problem of slavery.  The Mason-Dixon Line was created; the Civil War postponed. Senators came to the President and asked him to free the “white slaves”.


White Slaves:  The “White Slaves” were white farmers (and free blacks) along the river valleys.  They borrowed money each Spring, bought seed, planted corn, and sold the corn (or corn whiskey).  Then the loan was repaid. When too much rain, or too little rain, or something else destroyed the land, the farmer was unable to repay debts.  In effect, the farmers began to wear a “badge of slavery”. The Senators wanted the farmers released from those debts.


How?  How was it to be done?  “Debtors’ prisons” made things worse.


Moses:  The Senate turned to Moses.  The same Moses who came down the mountain with 10 Commandments.  The Jews had thought about God’s 10 rules for a good life and asked Moses for more rules.  One of the new rules was the 15th Chapter of Deuteronomy (KJV), which commanded, in part:


“1: At the end of every seven years thou shalt make a release.  2:  And this is the manner of the release:  Every creditor that lendeth ought unto his neighbor shall release it; he shall not exact it of his neighbor, or of his brother; because it is called the LORD’s release.  3.  Of a foreigner though mayest exact it again: but that which is thing with thy brother thine hand shall release; 4:  Save when there shall be no poor among you; for the LORD shall greatly bless thee in the land which the LORD thy God giveth thee for an inheritance to possess it:  5:  Only if though carefully hearken unto the voice of the LORD thy God, to observe to do all these commandments which I command thee this day.”


In effect today:  In 1848, no congressman would claim to have a better connection to God than Moses. The original Bankruptcy law was the first anti-slavery statute.  From time to time, the bankruptcy laws are redone, but they are still in effect today. Its purpose is to prevent debtors from wearing the “badge of slavery” because of credit card bills, hospital bills, illnesses, or unemployment. 


Warning:  Modern congressmen believe they have better ideas than Moses.  The Bankruptcy laws are longer and more complicated. Get a good bankruptcy lawyer.


Homework:  If one is unable to repay debts, do some homework and ponder the following:  
1) How long has the problem of too much debt has been around.  [Since Moses, 3000 years ago?]
2) What is the purpose of the commandment to release the debt?  [All of us will be greatly blessed when there are no poor among us?]
3.) Are you poor? [Unable to repay debts?]

McDonald's Hot Coffee Case

Recently, an e-mail was sent to me about the McDonald’s hot coffee cup case.  The message was that lawyers filed a silly case and got rich. The McDonald’s hot coffee case was used to attack the legal profession. This blog is about one case, and not a guide to accident claims.  I turned to Andrea Gerlin, Wall Street Journal, September 1, 1994, and The ‘Lectric Law Library ( www.lectlaw.com) for the facts.   

Facts in the News:  Facts are stubborn things.  They remain facts in the face of passions and prejudice.  The facts of this case are well known.

• 2/27/1992, Stella, a 79 year old woman, bought a 49 cent coffee at McD’s;
• Her grandson was driving, pulled forward from the McD’s window and stopped;
• Stella then tried to pull the plastic lid off of the coffee cup to add cream and sugar;
• The coffee spilled in her lap.

Facts not so well Known:   

• McD’s coffee pots were set to make coffee at 180 to 190 degrees;
• Mr. Coffee, at my house, made coffee this morning at 138 degrees; McD’s coffee was 47 degrees hotter than at my house this morning;
• A law student was hired to go around town, buy coffee, and stick a thermometer in the cup;
• The law student found that McD’s coffee was 20 degrees hotter than the hottest coffee sold in town;
• A McD’s executive told the jury that 185 degree coffee was not fit to drink, because it would burn the mouth and throat, but it smelled best at that temperature;
• McD’s coffee, almost instantaneously destroyed Stella’s skin, flesh, and muscle with third degree burns on 6% of her body and second degree burns on 16% of her body.  Coffee, at the lower temperature, would hurt, but give one time to take action and avoid burns;
• the jury saw the photographs of ugly burns on Stella’s inner thighs, buttocks, groin and genital areas;
• the jury saw the photographs of the skin graft process, where the burned skin is peeled off the victim’s body and then replaced; it feels as bad as it sounds;
• the jury heard testimony that McD’s had scalded 700 people with serious burns in the past 10 years; some of the cases were substantially similar to Stella’s; the jury saw that McD’s executives knew about nature and extent of the scalding for 10 years;
• the jury heard testimony that McD’s paid out $500,000 on claims to burn victims over 10 years; no one counted the seriously burned persons who did not file claims;
• the jury heard testimony that McD’s had no plans to change the temperature for brewing coffee;
• the jury heard that McD’s knew that the drive thru customers  were driving to work;
• the jury heard McD confess that it knew its super hot, undrinkable coffee was routinely spilled in the cars on people;
• the jury heard that McD’s served billions of cups of coffee and that McD’s was unfeeling about Stella;
• the jury heard that McD’s makes $1.35 million day in coffee sales;
• the jury surmised that McD’s is cold blooded; $1.35 million in coffee sales a day means everything; Stella is nothing.
• Allow the jury to figure out that McD’s is callous, arrogant, and too big to think of Stella.
• the jury did not know that McD's could have settled the case for $20,000 to pay for $11,000 in medical bills for skin grafts.  

Results:  The jury thought it was a case about callousness, not coffee, and awarded Stella money.  Then the jury punished McD’s by ordering it to pay 2 days of coffee money.  The Judge ruled that Stella was 20% at fault and McD’s 80% at fault, and cut back the award.  Although it was a public trial, Stella and McD’s signed a secret settlement, probably less than $600,000. It was a great victory for Stella. After looking at a 2 1/2 million dollar jury award, the settlement was a big victory for McD’s. The longer lasting result of the he jury’s decision to ridicule McD’s, was continued attacks attacks on the legal profession.

Deeper Meaning:  McD’s executives callously burned 700 people with a superheated, undrinkable coffee for 10 years, but in truth and fact they were picking up a big cat by the tail, and learned things they could not learn any other way. This is not the fault of the legal profession.

Dividing Property that is Not There

HB 908 - In House Bill 908, the Texas Legislature took up the problem of fraud in divorce cases.  Under the act, a man who takes money from the man and wife’s joint bank account, and  [1] hides the money, or [2] foolishly spends the money, and [3] fails to say where the money is, is guilty of fraud. This is not a new problem in divorce cases.

ADD IT BACK -The new act has a new solution. The Court will find out how much money is still in the bank account, then add the missing money back to the account, and divide the money and property between the parties.

Example -Suppose the man and wife had a joint account with $50,000, which is now missing, and a $50,000 house.  Because the man stole the money in the bank, he gets the missing money, wherever it is.  The wife gets the house. It is a 50 – 50 split.

Uh-Oh - If the man spent all the stolen money, then the man still gets his 1/2, worth $0. The wife still gets her ½, the house, worth $50,000.  It is still a 50 – 50 split.

The Court may also award a money judgment in favor of the innocent spouse.

The new law appears to be aimed at the man, with an evil heart, stealing from the innocent wife.  

Both guilty - What if both spouses are guilty? 

If the husband takes his girlfriend to Vegas, and the wife sells the furniture to buy recreational drugs, both spouses stole property.  Does the court divide the amounts stolen by both parties?

Was it intentional or reckless? - What if the man spends the money from the joint account to start a business, that fails?

Will his wife claim he foolishly spent their money on the business?  Won’t she say the business was a bad idea and he stole their money for the business?

House Bill 908 has been reported out of committee favorably and appears to be uncontested.  If the new act passes, the trouble will begin on September 1, 2011. The new act will apply to all divorces pending at that time and to all new divorces.

Child Visitation

This blog is for the parent who broke up the family, and hurt the children's feelings in a divorce involving child custody - a regrettable battle. There are some things a parent can do to help mend hurting children.

• In addition to paying child support, take your son or daughter to buy a new pair of shoes. Kids must eat their shoes, because they always need a new pair.
• Take your children to buy Summer clothes [bathing suit], school clothes [blue jeans & tops / shirts ], a winter coat and a thick winter blanket. I know a computer engineer who buys used clothing, with the fancy label, at Goodwill Stores and Marshals. Buy the coat when it first threatens to get cold, when it is on sale.
• Show up to see your kids when you promised.
• Take your children to a pizza place when you pick them up. Spend $20 on pizza, let them choose the kind of pizza, and let them talk.
• Take your daughter and son to the Dollar Store and let them choose a toy.
• Take your child to a book store and let them choose a book to buy and read.
• Call your child's teacher, on her break, and find out what's going on at school.
• Call your child or see you child on every birthday, get the child a present.
• Christmas is special to children, make it so for yours.
• Buy postcards and cards in advance, and every now and then spend the money for a stamp and send one to your children.
• Plan something for a visitation Saturday, other than cleaning house. Get out, go to a movie, or to the lake, or something else fun.

 None of this requires anyone to be a big spender.  All of it will help children mend their emotions, learn to make decisions for themselves, and help the parent be a better person.       

Child's Hearsay in Domestic Violence Protective Hearing

Child's Outcry in Criminal Cases: Written statements from abused children, on a case by case basis, are allowed in Texas criminal cases.  If the Court finds the statement reaches the level of reliability that the child's testimony would be admissible, then the statement is allowed.  The idea is to get the truth and protect a child from further domestic violence. Testimony from a child has the potential of intimidation or revenge for making an outcry.  A child should be protected from his abuser.  A child should be protected from the rigors of the courtroom.


Similar Provision in Texas Family Code:  A similar provision in the Texas Family Code, on a case by case basis, allows a child's written statement that describes his abuse to be admitted into evidence. Once again, the Court determines the reliability of the written statement in a hearing, away from the jury, to determine the reliability. Was the child's written statement the result of manipulation or is it reliable?  A Texas family lawyer sees cases in which neither the adults, both accuser and the accused, have the morals of an alley cat.  Or, perhaps they do not have the morals of an alley cat.   The appeals in these cases show that the real fight comes in the hearing to determine the reliability of the written statement.  Showing the reliability of the statement is trickier than it would first appear.


New Act for Protective Order Hearings:  Now the Texas Legislature has taken up House Bill 905 to allow the same kinds of written statements to be used  in hearings on Applications for Protective Orders.  The written statement of the child, 12 years and younger, that describes family violence against the child will be admissible.  The new Act follows the prior Texas laws and brings consistency to the protection of children in Texas Courts. If it passes, the new Act will take effect on September 1, 2011.


Protecting abused children is good: House Bill 905 appears to be a good Act to bring consistency to the legal system.  Protecting abused children is good. Protecting children from domestic violence is good. Getting to the truth is good.  Creating exceptions to the Hearsay Rule is always a bit scary to this lawyer. However, that protecting abused children is more important than my comfort level with a rule of evidence.

Mistaken Paternity in Texas

Mistaken Paternity:  The Texas Legislature is moving on cases of mistaken paternity.  Senate Bill 785 passed the Senate, was sent to the House, and allows a second look at paternity.  The Bill says that if the man (1) signed an acknowledgement of paternity, or (2) did not contest a paternity suit which declared him to be the father, then he may bring a suit to terminate the parent child relationship.  DNA tests would be ordered for the child and father.  The prior paternity decree would be effectively reversed, if the DNA test shows the man is the not the father.


Current Law:  Texas courts currently disallow paternity testing after a decree of paternity.   This allows the mother and her family to sit down with the best employed of her boyfriends and tell him he is the father of the child.  If a mistaken result occurs, at $500.00 per month in child support, the results are an 18 year, $108,000.00 fraud.


The Problem:  When she asks for government assistance, the mother is asked to identify the child's father. There are cases where the mother, over several years, named 3 or 4 different men as the father.  Texas family lawyers have cases, with DNA test results, showing their client not to be the father. No satisfactory remedy is currently available.


Attorney General of Texas: The change in law is an idea of the child support collection agency, the Attorney General of Texas.  The change in law is made possible by new DNA testing which allows paternity to be tested by taking DNA from the father and child only.  The mother does not need to be tested.


Good Changes:  The change in the law will prevent mistakes, fraud, and will be a good thing.  If it passes, the new law will take effect no later than September 1, 2011.  The new law will modify Section 161.005, of the Texas Family Code.

New Law Takes Effect: The new law is in place and giving 

relief to those in mistaken paternity cases.