How Does It Work?

I sometimes find myself quickly explaining the next steps to my new clients, and they stop me by saying "Wait! I've never done this before!!". I realize the mechanical process of a divorce can seem mysterious. And sometimes my current clients cannot understand why it seems to be taking so long when they know what they want. To deal with the court system takes some steps that are required by law and a few behind the scene things that have to happen before you are finished.

First, any law suit requires some papers to be filed at the courthouse. And before you can do that, you have to figure out what courthouse. In Texas, a divorce is filed in the county where you have lived for ninety days and you have to have lived in Texas for six months. That rule is in place so people can't "forum shop" and just pick a court or county or state because they think it would work out better for them.

The initial papers require a filing fee. Then the other side has to be given notice that a court case has been filed. This is usually by "personal service", which means a constable or private process server personally hands the other side the papers. Another option is for the other side to sign a "waiver of service", saying they know about the court case and don't need to be personally served. If you don't know where they live, or if the other side "ducks service" and hides and avoids the process server, then you can ask the court to let you notify the other side by an alternative means. That can be anything from leaving the notice on their doorstep to posting on the wall at the courthouse or publishing it in a newspaper. Each of these requires certain papers to be drafted, signed, filed at the courthouse and a judge's signature. And more money. But it is fundamental fairness that you cannot ask a court to decide your case without the other side having a chance to answer and put forth their side.

After the other side has been noticed that a divorce has been filed, then you have to decide if you need temporary orders. These are orders that lay out the rules for property use, children, money and any other rules that need to be in place during the time the case is not finished. If temporary orders are needed, then more papers are filed at the courthouse, a court hearing date is requested and the other side has to be told about the court date and the purpose of the hearing. In my courts, you can usually get a temporary orders hearing about two to three weeks after you request it. You need temporary orders when you have to determine who will have possession and responsbility for the home, cars and bills and other things while you are deciding how to permanently divide things up. With children, you have to lay out where they will live, go to school, spend time with each parent, and be supported until permanent decisions are made. Parties can either agree or go to court and ask the judge to decide. Often agreements are reached and the judge just signs the agreed rules. Other times, some or all issues are contested and the judge hears both sides and makes a decision. These rules will generally stay in effect until the case is over.

For a child custody case (without a divorce), the process up to this point is much the same. In a custody case, you have to start in the county where the child has been living for at least six months. If you are modifying a previous order, you start in the court who issued the previous order.

I will talk about the rest of the process in other posts, but this should make it clear that the more agreements you can reach, the less stressful and expensive the process is. However, these are emotional issues and family law lawyers and judges understand that agreements are not always easy. As attorneys, part of our job is to help you sort out what is possible and reasonable, and then to negotiate for you. I cannot begin to list all of the things that must be considered in deciding what orders are necessary. Each family is different and each case is different. I talk with my clients about their financial and emotional situation, review the current arrangements, determine what is important to my client and the family and make recommendations, referrals and suggestions about what orders need to be in place. I review with my client what the court is able to order, what the court is likely to order and what the court is unlikely to address at the beginning of a case. All of this at a time when a family is upset and struggling. It isn't always easy, but this is what family law attorneys do.

Grandparents, Custody, Addiction

We do a lot of grandparent cases in our office. There is nothing more difficult for a parent to do than to admit that their child is incapable of raising their own child. Sadly, often the reason is drugs. Sometimes I think that my cases over the years are the best example of how addiction damages everyone in a family, down through generations. Of course, the most innocent victims are the children.

Grandparents (or other relative caregivers) are often the only thing that keeps a child from foster care or worse. Most Grandparents don't want to ask for legal custody of their grandchildren. Their most fervent hope is that their children will someday be able to raise their own children. They see themselves as a temporary solution...a haven. But often the situation gets so bad that they have to face their own children in a courtroom. Addicted adult children sometimes continue to come in and out of grandparent's homes and bring their addictions with them. The grandchildren are confused, frightened and heart-broken. They have the same hope as their grandparents: that mom or dad will someday get well and take them home. But they are afraid.

Grandparents come to attorneys when they fear the addicted parents will steal the children and take them to unsafe environments. They are first looking for a solution that doesn't involve directly confronting their children. They want a piece of paper their children can sign that will keep the grandchildren safe with grandparents until "it is a good time". Unfortunately, anything but a court order can be revoked at any time. The only piece of paper that will insure that the children can't be taken by their parents is a court order. And to get a court order, a court must find that the children will be in danger with their own parents. And that means a difficult confrontation.

The law in most states now assumes that a fit parent makes good decisions for their minor children. So the grandparent has the burden of proving that the parents are a serious physical or emotional danger to the children. The court can order drug tests and other evaluations to help establish the situation. Social studies and treatment can be ordered. The courts I work with take their responsibilities to keep children safe very seriously. But the preference is that children be with their parents unless that is not feasible. So asking for custody of a grandchild is not trivial. Fortunately (or unfortunately) most grandparents who come to me have plenty of evidence and history.

The biggest mistake that grandparents or other alternate caregivers make is to wait too long. They dread bringing their problems into court, they hope things will get better, they hope there will be no confrontation. When your addicted child is at the door or school or daycare trying to take their child, it has become an emergency. The first step is to make sure all of the child's caretakers know about the situation. While a school or daycare is reluctant to refuse to release a child to his parent without some paperwork (court order), they often can delay things in time for the grandparent to get there. So make sure they know how to reach you as quickly as possible at any time. When you get to the school or daycare, try to reason with the parent, try to take them somewhere to talk, try to give them some money if that is what they want. Remember, when you are talking to an addict, you are talking to the drugs. The police cannot help you without an order. It is my experience that they will often try to "talk" the situation down but they are not always successful.

Once you have cooled the situation down, call an attorney as soon as possible. An attorney can try to get emergency orders and a court date for you to protect your grandchildren. In Texas, if you have had care, custody or control of a child for six months, you have a right to go into court and ask for orders. If not, an attorney can sometimes figure out a way to get your grandchild before the court anyway. Obviously, you are much better off if you see an attorney before the situation becomes critical. You should at least understand your rights, the parent's rights and the legal process.

Remember, even a court order doesn't have to be forever. Orders can always be changed if and when a parent recovers. The safety of your grandchildren has to come first.