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Texas Visitation Modification

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GeneralZod

Active Member
State of Texas

I am getting ready to start interviewing lawyers to begin a Visitation Modification.
I am hoping to get some advice on what to look for and what to ask from people who have gone through this before.
I am also hoping to get an idea of what the (average) cost could be on Modifying visitation. (I know that there are many factors that could go into determining this but that is why I am asking for average).

This has already been a messed up situation on getting to this point. It has been one of those nightmares that leave people collectively scratching their heads saying that there is no way something like this can happen!!!
I am here with paperwork in hand to show that indeed, judges are can break the law from the bench and not be held accountable under the guise of "discretion" where the judge had NO discretion (election cycle... likely culprit).

Because of this, I have lost all faith and hope in our current system.
Still going pro se creates another set of barriers, so reluctantly I have to return to finding a lawyer.
Having already paid 10's of thousands of dollars for the initial (19 month) divorce and having my appeal (pro se) denied on some missing paperwork (that I have no idea what they are talking about)??? I am limited in my means to rectify the damage done to the children.

I am Joint Managing Conservator but limited (wrontly, by the divorce decree) to seeing my children to only 8 hours per month.

If anyone has any information or suggestions, please respond.

Thank you.
 


not2cleverRed

Obvious Observer
How long ago was the divorce?

If you are past the date when you can appeal, then I believe you need a "change of circumstance". What has changed since the divorce (for the children)?
 

stealth2

Under the Radar Member
Honestly? No one can give you any answers as you've provided no information on what you're trying to modify or why.
 

GeneralZod

Active Member
Its been over 1 year since the divorce was finalized (i.e. final decree signed and entered).
I have just married and purchased a new home...

I covered the "changed in circumstance" with the marriage (and to the lesser degree, the new home) but I am not asking about that.
I am asking for specific information in regards to a "generalized" cost that one would expect to pay for a modification (average, NOT needing specialized witnesses).
I am asking for specific suggestions to ask the lawyer(s) when interviewing about the modification.
I am asking for any other suggestions from someone who has gone through this process.

Thank you
 

stealth2

Under the Radar Member
Given it's a "messed up situation".... No one can really hazard a guess as to the cost. Could be $5k, could be $50k.

Did you not use a lawyer the first time around?
 

GeneralZod

Active Member
I used a lawyer for the divorce (hence the 10's of thousands of dollars comment).
It took over 19 months and had a final cost (to me) of over 20K.
There were zero special witnesses used... no doctors, no psychiatrists, nothing.
Just the ex, her mother, her best friend and me with a few people with the ability to speak.

The messed up situation is that it "seems" the judge screwed up.

Everything I am going to say here can be shown via court or police records.

Without getting into too much detail, it basic is as follows:
My ex was (in my opinion) caught having an extra marital affair. (over 16 years if marriage)
Within 3 months after catching her, she took the children and left the city (when I was on the verge of finding concrete evidence through phone records). She went to stay with her mother (with the children) about 4 hours away.
I filed for divorce with the clause that the children need to return back to the county that they live.
After she was served with divorce papers she responded with allegations of abuse. (This allowed for the knee jerk reaction by the court and for her to keep the children in the city that she was staying).
A month later (after mediation did not go her way), she went to the police and filed a police report on the alleged abuse (above).
The police investigated the alleged abuse, closed the case as unfounded. No arrests were made and their report states that they could not substantiate any of the supposed evidence she gave them.
Over 1 year later, we have our court hearing.
My ex was able to submit evidence that was unable to be substantiated by the police.
To add insult to injury, I was left to "DEFEND" (prove a negative), against supposed abuse with BLACK AND WHITE printouts of images (not even an actual color photo... black and white printouts from a printer). That is in direct violation of the Texas Rules of Evidence... but I did not know it at the time.

Long story short... the Court made us BOTH Joint Managing Conservators (meaning that we share the rights and duties of parenting) however, she gets the right to decide where they live and where they go to school. She is supposed to talk it over with me about medical issues. Every other right we share.
**BUT** (here is the kicker)... I have my visitation with the children limited to ONLY 8 HOURS per month (4 hours on the 2nd and 4th Saturday of the month). This clearly goes against the Texas Family Code.
I have not been found to be an UNFIT parent, no arrests, no pending litigation, nothing but against the Texas Family Code, my possession of the children has been limited.
It goes much deeper than this... the codes are self explanatory and the Supreme Court has ruled that the codes are to be taken as they are written... meaning that the judge screwed up royally.

The Code cited by the court is does NOT give the court discretion to limit visitation unless he made me "possessory conservator" instead of Joint Managing Conservator but that would require some sort of finding by the court (which there were none) to overcome the presumption of Joint Managing Conservator.

I have attempted to appeal... (PRO SE)... but the appeals court denied the appeal for failure to file some sort of paperwork (not sure what it was).

I am now trying to right the wrong that has been perpetrated on the children and I am looking for information to help facilitate that.
 

stealth2

Under the Radar Member
Okay, for starters - your marriage and purchase of a home do not constitute a change in circumstance for the children. However, that may not matter if you are looking at modifying the parenting plan/timeshare.

In terms of what to look for in a lawyer, I would likely want someone fairly aggressive with experience in dealing with abuse allegations in custody. I would, frankly, expect it to be rather costly.
 

LdiJ

Senior Member
In addition, Joint managing conservator means joint decision making. It has nothing to do with timeshare. Someone can have no parenting time at all and still be a joint managing conservator. Your idea that a judge could not limit your timeshare and still make you a joint managing conservator is incorrect.

I understand how frustrating it is for you to have only 8 hours per month with your children but if you are attacking this in the wrong way you are not going to fix things. You need a good attorney and you need to LISTEN to your attorney. The more someone fights their own attorney the higher the legal fees end up being. From the way that you have written this story I suspect that you have fought your attorney more than you should have.
 

GeneralZod

Active Member
Thank you all for answering the posting.
I invite everyone to read this rather lengthy post (my apologies for that) and please leave a comment, amplifying information, or rebuttal.
Please know that I am not here to argue. I have no desire to do that, so if it seems that I am coming across as argumentative, it is not my intent. I am just of the mind to ask questions but I will challenge thought processes that do not make sense or I find to be wrong based on my research.
I will back up what I am saying or asking with tangible court cases, statutes, rules, or evidence when posing my opposition to something that someone has said.
I am hoping that maybe the person (or someone else who knows more than I do) can correct my thinking with more direct "evidence" (so to speak) other than the idea of "status quo" or "this is how it is normally done". Those arguments do not hold water and need to be abolished from the court system by judges, lawyers, and those common folk who hire them.

@stealth2 : I hear what you are saying but disagree with the premise based on the multiple cases that say otherwise. (I am not trying to argue, I just rather put verifiable information out there for anyone who comes across these posts at a later date)

Texas Family Code 156.101(a)(1) the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the earlier of:

The issue was recently addressed in, In the Interest of E.A.D.P., J.T.C.P. and C.E.P., children, by the Court of Appeals Fifth District of Texas at Dallas. In this case, the court looked to factors that had previously been set out as their guide in deciding what is a material and substantial change and holding that, “a parent’s remarriage and a change in home surroundings have been held to constitute a material change of circumstances justifying modification of conservatorship.” (emphasis added). The court re-affirmed that material changes include all aspects of a child’s physical, mental, emotional, and moral well-being. They also held that while a change in age alone may not be a material change, the differing needs not being met that have arisen because of a change in age can be a material change in circumstances.

That is only 1 of many cases as an example that marriage or change of home does constitute a change of material circumstance (at least here in Texas).

Following up on
In terms of what to look for in a lawyer, I would likely want someone fairly aggressive with experience in dealing with abuse allegations in custody. I would, frankly, expect it to be rather costly.
All "abuse" allegations have been investigated and closed as unfounded (by the police at least).
The crux of my issue with the judge taking into account and admitting into evidence supposed evidence that was unable to be corroborated.
Worse than that, allowing that evidence to be presented in a manner that goes against the Texas Rules of Evidence: Rule 1001 (d) that requires an image "PRINT" be made and held as an "original" (as opposed to PRINTOUT which have two different meanings).
Not going to copy and paste the rule but it can easily be looked up.
When defining the term "PRINT" it is shown to be (what you and I know as) a picture/photo produced by a means on photo paper (in Color) and accurately represents the terms of the image.
By contrast, the term "PRINTOUT" is shown to be a rendering produced by a printer (not necessarily in color) but that can accurately reflects the "information"

So a PRINTOUT would be that of an email.
A PRINT would be something to reproduce a photo/picture.
The two meanings are distinct and different for obvious reasons.

The fact that I had to argue a BLACK AND WHITE PRINTOUT of supposed injuries is a cause for concern especially when those images could not be collaborated by the police after 2 months of investigation (no arrest, which is a significant when comparing preponderance of evidence, which is used in civil cases and that of probable cause which is used in determining if something warrants an arrest).
The US Supreme Court as well as other state Supreme Courts, weighed in on this several times over the years pitting both standards against each other.
Just a few examples, we find that:
“[probable cause] does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands” Gerstein v. Pugh, 420 U.S. 103, 121 (1975)
“While "reasonable suspicion" is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence. (emphasis added) Illinois v. Wardlow 528 U.S. 119 (2000).
“The committing magistrate has the responsibility to determine probable cause at a preliminary hearing. This standard is lower, even, than a preponderance of the evidence standard applicable to civil cases.” State v. Pledger, 896 P.2d 1226 (Utah 1995)
“[p]robable cause has a lower threshold of proof than proof beyond a reasonable doubt or by a preponderance of the evidence.” People v. Hardacre, 109 Cal.Rptr.2d 667 (Cal.App. 6 Dist. 2001)


The obvious argument there is that if there is not enough evidence for an arrest (probable cause) to be made, then by logical following, there is not enough evidence for a preponderance of evidence to be formed.
That of course in an argument for another time on another day and not these forums.

Using the information above and what I alluded to in my prior posts, I find a disconnect between judges interpretation of a law and how that law is actually supposed to be read.
Looking to the Texas State Supreme Court for a ruling I found:
Fitzgerald v. Advanced Spine Fixation Systems, Inc., 996 SW 2d 864 - Tex: Supreme Court 1999
There are sound reasons we begin with the plain language of a statute before resorting to rules of construction. For one, it is a fair assumption that the Legislature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent. Also, ordinary citizens should be able to rely on the plain language of a statute to mean what it says.[10] Moreover, when we stray from the plain language of a statute, we risk encroaching on the Legislature's function to decide what the law should be.
Pedernal Energy, LLC v. Bruington Eng'g, Ltd., 536 S.W.3d 487, 491-92 (Tex. 2017)
Words and phrases must be "read in context and construed according to the rules of grammar and common usage." We construe statutes so that no part is surplusage, but so that each word has meaning. We presume "the [l]egislature chooses a statute's language with care, including each word chosen for a purpose, while purposefully omitting words not chosen." We also take statutes as we find them and refrain from rewriting text chosen by the [l]egislature.

This is just a small smattering of cases that came from the Tex Supreme Court... there are many more and vastly more from the appeals courts.
The reasoning for my posting this is my guidance that the judge screwed up because the cited statutes in the Findings and Fact and Conclusions of Law do not match up with the outcome.
I can go into the specifics of that claim BUT it would require a knowledge of my divorce decree and my ex's sworn affidavit in response to being served divorce papers.
I do not want to get that personal on an open forum such as this, so I ask that you please trust me when I say that it does not take a linguist to discern the actual reading of a statute and its direct meaning, which is a far cry from what the judge used to limit possession of the children.
 
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GeneralZod

Active Member
In addition, Joint managing conservator means joint decision making. It has nothing to do with timeshare. Someone can have no parenting time at all and still be a joint managing conservator. Your idea that a judge could not limit your timeshare and still make you a joint managing conservator is incorrect.

I understand how frustrating it is for you to have only 8 hours per month with your children but if you are attacking this in the wrong way you are not going to fix things. You need a good attorney and you need to LISTEN to your attorney. The more someone fights their own attorney the higher the legal fees end up being. From the way that you have written this story I suspect that you have fought your attorney more than you should have.
I have to differ with your annalysis of what "Joint Managing Conservator" is. Joint conservatorship is the default arrangement for child custody in Texas. Under joint managing conservatorship, parents share responsibility for major decision making on behalf of the child in matters such as education, religion, and medical crises.
First we have to understand that "Conservatorship" covers both "possession" and "access" (two different entities... and your post above is only discussing "assess".
As the Texas Attorney General has on his website:

Possession of your child means you can see the child in person and decide where the child goes. It is your time with your child.

Access means that you can interact with your child by phone, text messages or by Face Time or Skype or other social media. You also can attend your child’s extracurricular activities and have access to school, medical, and dental records.

You are correct in statement for the "access" part but you lack the "possession" part which all falls under the "conservator" umbrella.

If you read Texas Family Code 152 for guidance, you will find that Joint Managing Conservator is the presumption and default for the court.
With that, you fall under the "standard possession order"!!!

HERE IS THE CATCH
If the court finds some wrong doing (for giggles... lets say abuse/family violence).
Sec. 153.131. PRESUMPTION THAT PARENT TO BE APPOINTED MANAGING CONSERVATOR. (a) Subject to the prohibition in Section 153.004, unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child. (emphasis added)

(b) It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child. A finding of a history of family violence involving the parents of a child removes the presumption under this subsection. (emphasis added)

There are several corresponding statutes that cover the same aspect as here.
What this means (in terms for everyone to understand) is that if the court found that a child(ren) were in danger because of some past event (abuse/violence/assault/etc) the court has the ability to bypass the presumption of "Joint Managing Conservator" and either place the parent as a "POSSESSORY" Conservator or restrict the conservatorship all together.

Looking at for further guidance, I point to Texas Family Code 153.004 (c) which states:
(c) The court shall consider the commission of family violence or sexual abuse in determining whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator. (emphasis added)

Reading over the entity of the Texas Family Code, You will find NO WHERE where it allows the limitation or restriction of POSSESSION to those parents who are granted "JOINT MANAGING CONSERVATOR".

Taking into account the States Supreme Court rendering of statutes to be taken exactly as they are written, we see clearly that the judge has no ability to restrict possession to a person who has been appointed as Joint Managing Conservator (at least in Texas).

So coming full circle, your assertion that:
It has nothing to do with timeshare.
Is plain wrong as shown by the evidence and statutes that I present.

As far as:
you have fought your attorney more than you should have
I went into the original hearing not knowing anything and relying solely on my lawyer. That changed after the judge made his decree...
I was perplexed on how someone who has NEVER been in trouble (no history of any kind of entanglement with the law or otherwise) can have their children stripped away from them on mere "allegations" of wrong doing... particularly when those allegations were investigated and all investigations were closed, unfounded a year before the judge made his decree.

I then started doing research because I was going to appeal that ruling (of course).
It is only through that research of appealing the decree did I find out about any of this that I am presenting here.
It is only after the decree did I start to take my legal classes and figure out how incompetent my attorney was.

He should have known to make an objection to the supposed evidence that the other side submitted.... but he did not.
He should have gotten all the police reports showing that EVERY SINGLE allegations was unfounded... but he did not.
He should have gotten all the police dispatch reports to show that there is a glaring discrepancy between what my ex's mother told the dispatch and what she told the police... but he did not.
He should have used the evidence that I did give him (recorded phone calls with the children... legal in Texas... before someone questions that) where the children say "I heard you hit mommy, is that true" and "that is what mommy told me"... but he did not.

What I did have to do for my attorney is have him rewrite some of the agreements to close loopholes.
I only knew to do that after mediation where there was a HUGE loophole in the wording that allowed my ex to deny me visitation with the children because exact dates and/or times were not specified and having to deal with that for a year and a half... I learned to be wary of things that were written and to close all loopholes that could "POTENTIALLY" be misconstrued.

Again... I am sorry for the long read.
Hopefully I did not bore too many of you and you were able to power through the length of the posting.

Please, if you find fault with anything I posted, I would ask that you please let me know and show me where the proper (non status quo) information is.
I am looking for the best information out there and so far this is what I have come up with.

Thank you
 
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stealth2

Under the Radar Member
Please cite your sources. The person/people who wrote what you posted in your reply to me (i.e. not you - I found it elsewhere) deserves attribution.
 

GeneralZod

Active Member
@stealth2
I am not sure what you are saying here... I wrote my reply.
I referenced where I got my information from, it is all in there if you read it ... Examples:

Texas Rules of Evidence Rule 1001 (d):
Texas Family Code 156.101(a)(1):
Fitzgerald v. Advanced Spine Fixation Systems, Inc., 996 SW 2d 864 - Tex: Supreme Court 1999
Pedernal Energy, LLC v. Bruington Eng'g, Ltd., 536 S.W.3d 487, 491-92 (Tex. 2017)

Gerstein v. Pugh, 420 U.S. 103, 121 (1975)
Illinois v. Wardlow 528 U.S. 119 (2000).
State v. Pledger, 896 P.2d 1226 (Utah 1995)
People v. Hardacre, 109 Cal.Rptr.2d 667 (Cal.App. 6 Dist. 2001)

Texas Attorney General has on his website:

Is there a particular phrase or quote that you are asking about?

**Just added below in an edit**
I assume that you are referring to the idea that a marriage and/or changing of homes can justify a change in circumstances...
I did list the case in the text... but here more of the quote:

A parent's remarriage and a change in home surroundings have been held to constitute a material change of circumstances justifying modification of conservatorship. Arredondo v. Betancourt, 383 S.W.3d 730, 734-35 Tex. App.-Houston [14th Dist.] 2012, no pet.); In re A.L.E., 279 S.W.3d at 428-29 (non-exclusive list of material changes, as described by other courts, include marriage of one of the parties and change in home surroundings); Zeifman, 212 S.W.3d at 593 (evidence of parent's subsequent marriage to another after rendition of a divorce decree can constitute a relevant, material change of circumstances). Here, Father had remarried and had moved from his mother's home to a three bedroom, two bath home with a bedroom for E.A.D.P. and J.T.C.P. and a bedroom for C.E.P. Mother, on the other hand, had moved from an apartment to a motel suite that had one bedroom area.

Please let me know if you are looking for anything particular
 
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stealth2

Under the Radar Member
Really.
The issue was recently addressed in, In the Interest of E.A.D.P., J.T.C.P. and C.E.P., children, by the Court of Appeals Fifth District of Texas at Dallas. In this case, the court looked to factors that had previously been set out as their guide in deciding what is a material and substantial change and holding that, “a parent’s remarriage and a change in home surroundings have been held to constitute a material change of circumstances justifying modification of conservatorship.” (emphasis added). The court re-affirmed that material changes include all aspects of a child’s physical, mental, emotional, and moral well-being. They also held that while a change in age alone may not be a material change, the differing needs not being met that have arisen because of a change in age can be a material change in circumstances.
From: https://www.dallasdivorcelawyerblog.com/texas-family-code-156-101a1-material-substantial-change/
The issue was recently addressed in, In the Interest of E.A.D.P., J.T.C.P. and C.E.P., children, by the Court of Appeals Fifth District of Texas at Dallas. In this case, the court looked to factors that had previously been set out as their guide in deciding what is a material and substantial change and holding that, “a parent’s remarriage and a change in home surroundings have been held to constitute a material change of circumstances justifying modification of conservatorship.” The court re-affirmed that material changes include all aspects of a child’s physical, mental, emotional, and moral well-being. They also held that while a change in age alone may not be a material change, the differing needs not being met that have arisen because of a change in age can be a material change in circumstances.
You added bolding. The rest is word-for-word. I didn't bother with the rest.

Good luck with your attorney search.
 

Ohiogal

Queen Bee
So OP lied. Lovely. Gotta love liars. NOT. Pay someone Zod. And it doesn't surprise me you are playing dirty with lying as you are the villain in Superman 2.
 

GeneralZod

Active Member
So OP lied. Lovely. Gotta love liars. NOT. Pay someone Zod. And it doesn't surprise me you are playing dirty with lying as you are the villain in Superman 2.
Lied... I am sorry... where did you get LIED from?

IN RE INTEREST OF EADP, Tex: Court of Appeals, 5th Dist. 2016 (like added if you want to see it)

A parent's remarriage and a change in home surroundings have been held to constitute a material change of circumstances justifying modification of conservatorship. Arredondo v. Betancourt, 383 S.W.3d 730, 734-35 Tex. App.-Houston [14th Dist.] 2012, no pet.); In re A.L.E., 279 S.W.3d at 428-29 (non-exclusive list of material changes, as described by other courts, include marriage of one of the parties and change in home surroundings); Zeifman, 212 S.W.3d at 593 (evidence of parent's subsequent marriage to another after rendition of a divorce decree can constitute a relevant, material change of circumstances). Here, Father had remarried and had moved from his mother's home to a three bedroom, two bath home with a bedroom for E.A.D.P. and J.T.C.P. and a bedroom for C.E.P. Mother, on the other hand, had moved from an apartment to a motel suite that had one bedroom area.

ABOVE is a direct copy and paste from the case itself... with emphasis added.

In the Interest of E.A.D.P., J.T.C.P. and C.E.P (the case) was clearly in the verbiage where of the original post.

A small failure on my part to FULLY LIST every single piece of information in my (extensively) long post is NOT A LIE!
This is exactly why I asked what @stealth2 was referring to.
 
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