Divorces are often messy. Even when you thing the toughest part is done, another obstacle shortly pops up. After assets have been divided, custody has been awarded, and child support has been set up, visitation rights must be decided. Visitation is when the non-custodial parent visits their children. This can be every other weekend, once a month, or any other time period. Arrangements can be made between the parents but cannot be forced unless agreed upon in front of the court or a family law attorney.
Most lawyers and court systems encourage the parents to come to an agreement. If you cannot agree, they may require you to participate in some sort of mediation process to attempt a resolution. A third party such as a social worker may be used to help with the mediation process. When an agreement is not possible through mediation, the court makes the decision on visitation rights and the frequency of visits. The judge may require a mental evaluation to be performed on both of you.
Dragging this process out can be devastating to each contesting party and the children. One result is very high legal fees. The children are emotionally strained and confused. Sometimes a parent will be denied custodial or visitation rights. It is always better to work together and try to determine what is best for the children. If they have a great relationship with the non-custodial parent and they are close more frequent visits are better for the child. Strained relationships might need less frequent or supervised visits.
The child themselves can come between the visitation rights of the non-custodial parent and may refuse to see them. If this is happening, the issue should be discussed between the two of you so the parent with visitation rights knows it is the child’s choice and does not feel like the other parent is denying them their rights. If you automatically side with your child and visitation ceases, visitation rights can be enforced by the court. Even though it may be hard to discuss matters with your ex-spouse, discussing the children openly and dealing with visitation and custody problems together can decrease legal hassles and result in more positive and rewarding relationships between the children and both of their parents.
Any time the parent with primary custody prevents visitation from occurring it is called frustrated visitation rights. This can be innocent such as a sudden emergency during the visitation time. It can range all the way to very severe as in the parent skips state or country with the child. An act like this is considered kidnapping and is a criminal offense. Doing so intentionally can be grounds for the court to drastically modify or terminate the primary parent’s custody rights.
If you are currently dealing with visitation decisions due to a current divorce or are being denied your visitation rights, divorce lawyers can help with any matter relating to visitation. These types of lawyers can be used in cases where the non-custodial parent does not return the child after their visitation period.
By: Sarah Ballentine
When should I consult with a divorce attorney?
It is never too early in the process to consult with an attorney. Engaging with legal counsel early allows you to make informed decisions and avoid potential pitfalls – increasing your ability to achieve your goals. Remember, consulting with an Austin divorce attorney does not mean that you will be divorced; you may need information about the family law legal process. A common problem that I see is clients wait too long to contact an attorney to obtain legal advice and could have ended up with a better result if they had been informed about their options earlier.
What should I bring with me to the initial consultation?
Because family law matters can be very stressful, it is a good idea to write down any questions you have and bring them with you to the first meeting so nothing important is forgotten. You may also want to bring any documents relevant to your case if available – such as federal income tax returns, or documents concerning your assets and debts. If you signed a pre-marital agreement or any other kind of property agreement prior to or during your marriage, bring a copy to the consultation.
I was just served with divorce papers. What should I do?
You should retain a divorce attorney as soon as possible so they may provide legal advice regarding what has been requested and any hearings that have been scheduled. Once retained, your divorce attorney will file an answer on your behalf.
My spouse and I would like to only hire one attorney for our divorce. Is that possible?
In Texas, one attorney may not represent both spouses. Nor may a divorce attorney retained by one spouse give legal advice to the opposing party. Do some research to find out if your state allows representation by one attorney.
I understand that I have to go through mediation for my divorce. Is that true?
In Travis, Williamson and Hays Counties, mediation is required before a final hearing will be held in a family law case. In mediation, a trained, neutral third-party acts a facilitator for the settlement discussions between the parties and their respective attorneys. If an agreement cannot be reached during the mediation process, the parties may decide to resolve their issues via litigation.
How long will it take to get a divorce?
The time required to develop the final terms of your divorce is highly dependent on the number of issues to be resolved and the willingness of both parties to reach an agreement. In Texas, there is a statutory waiting period of 60 days after the Petition is filed before the divorce may be finalized.
Do both spouses have to consent to the divorce? What if one of us does not want the divorce?
Texas has a “no-fault” divorce statue. This means that a divorce can be obtained, even if only one spouse desires it. You do not need the agreement of your spouse to file the Original Petition for Divorce or to pursue a divorce.
What does it mean when an attorney is Board Certified in Family Law by the Texas Board of Legal Specialization?
A family law attorney who wants to be Board Certified in Family Law by the Texas Board of Legal Specialization applies to the Texas Board of Legal Specialization to take a day long written exam to become Board Certified in Family Law. Of the 78,032 attorneys licensed to practice law in Texas, only 691 are Board Certified in Family Law by the Texas Board of Legal Specialization, or less than one percent of the lawyers in the state of Texas.
* In addition to taking a written certification exam, family law attorneys applying for board certification in family law must have demonstrated extensive expertise in matters such as divorce, property division, child custody, child support, paternity and other matrimonial matters. Specific requirements include:
Must have been licensed to practice law for at least five years Have devoted at least 35% of his/her practice to family law for the last three years Have experience handling a wide variety of family law matters Have received recommendations by fellow attorneys and judiciary members Must pass a day-long written exam on family law issues such as divore and child custody Demonstrate regular participation in family law continuing education seminars
By: Nick Comito
