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What You Need to Know About Establishing Guardianship for Your Child

When a Child With a Disability Needs a Guardianship

When you have a teenage child with a severe lifelong physical or mental disability, you may need to establish legal guardianship in order to protect your child’s rights and make decisions for your child once he or she turns 18 years old. According to the 2010 U.S. census, 56.7 million people have a disability. The number of people in the United States with a severe disability has increased, and people with severe disabilities are often unable to hold a job or make decisions for themselves. If you have an adult child with a disability, you may need to establish legal guardianship in order to protect your child’s rights and make certain types of decisions for him or her.

What Legal Guardianship Is

Legal guardianship is the legal right for you to make decisions for a person who the court declares to be not competent to make their own decisions. There are two types of legal guardianship that someone with a disability might need. The first type is guardianship over the person. This gives you the right to decide where the person will live, which doctors he or she will go to and whether or not he or she will attend an adult day care program or other activities for people with disabilities. The second type of legal guardianship is guardianship of the estate. This refers to the management of the funds or assets of a person with a disability.

Who Needs a Legal Guardianship?

The courts determine whether or not a person with a disability needs a guardianship. The decision is based on whether or not the person is able to make competent decisions about their person or their estate. For nearly all children under the age of 18, parents are legal guardians authorized to make medical and financial decisions on behalf of the child. Once a child turns 18 years of age, that guardianship ceases. A person who is incapacitated may not be able to make decisions about their person or estate. As a parent, you can apply for legal guardianship of your child with a moderate or severe physical, mental or cognitive disability.

Legal Paperwork Related to Guardianship Applications

The first step of applying for legal guardianship of your adult child with a disability is the completion of guardianshippaperwork. The court clerk can provide you or your attorney with the paperwork. A key aspect of the paperwork must be completed by your child’s physician or medical specialists. The physician’s explanation of your child’s physical, mental or cognitive disabilities will be closely examined by the family court judge. Some of the paperwork should be completed or reviewed by a family law attorney who is familiar with the guardianship process and laws in Texas. You may also need to arrange for a social worker to visit your home or the place where your child lives. An interview may also be a part of your application for guardianship.

Court Appearance for Legal Guardianship Applications

The final part of a guardianship application is the appearance in court. After turning in your paperwork, you’ll receive a court date. The family law judge will review your application before the court date. He or she may have some questions for you during the court hearing. Representation from your attorney can help you answer those questions, or your attorney may answer them on your behalf. You may have a second hearing if the judge requests additional paperwork or documentation of your child’s health status or disability. The court may grant you guardianship alone, or you and your child’s second parent or another responsible adult can be named as co-guardians of the child with disabilities.

Establishing a legal guardianship for your adult child with a disability provides you with a way to protect his or her rights. Without the legal guardianship in place, you may not be able to make decisions or represent your child’s interests. The court could appoint a legal guardian to your child if you do not apply to be one. Contact our associates at Stewart Law PLLC today at (281) 420-8020 to schedule a consultation at our office in Baytown about establishing legal guardianship for your child with a disability.

Frequently Asked Questions about Alimony in Texas

Frequently Asked Questions about Alimony in Texas

Though alimony or spousal maintenance is not as common in Texas as it was a generation ago, the court still has the discretion to order payment of spousal support, based on a variety of factors. Our Baytown family law attorney answers some of the most common questions divorce parties have regarding the payment of alimony in Texas.

What Are the Different Types of Alimony?

In Texas, alimony can take three different forms: temporary, contractual or spousal maintenance. A grant of temporary alimony is in force only while the divorce proceeding is still pending. It ensures that the recipient has some means of support until a final divorce decree is entered. A “contractual” grant of alimony allows the parties to put spousal support payment in the final divorce order. The parties have the flexibility to negotiate the amount, as well as the duration of payments. If the parties cannot agree to a contractual grant of alimony, the court will order “spousal maintenance,” a grant of periodic payments after a divorce is final.

What Are the Factors the Court Considers When Granting Alimony?

The court has absolute discretion to grant alimony, based on the following factors:

  • the financial resources of the spouse seeking maintenance, including the community and separate property and liabilities apportioned to that spouse in the dissolution proceeding, and that spouse’s ability to meet the spouse’s needs independently
  • the education and job skills of the spouses
  • the length of the marriage
  • the age, employment history, earning ability, and health condition of the spouse seeking maintenance
  • the ability of the spouse from whom maintenance is requested to meet that spouse’s personal needs
  • the dissipation of any marital assets
  • the financial resources of the spouses
  • the contribution by one spouse to the education or earning capacity of the other
  • any pre-marital property
  • the contribution of a spouse as homemaker
  • any marital misconduct of the spouse seeking maintenance
  • the efforts of the spouse seeking maintenance to pursue available employment counseling as provided by Chapter 304, Labor Code

Alimony in Texas

How Do You Enforce Payment of Alimony?

It depends on the type of alimony. If it’s spousal maintenance, and there’s a court order, failure to pay is considered contempt of court. If, on the other hand, it’s contractual alimony, the failure to pay is breach of contract and must be enforced through a breach of contract action in court.

Contact Us

At the office of Linda Stewart Law, PLLC, in Baytown, we bring more than 8 years of experience to clients in south Texas. To learn how we can help, call our family law attorney at 281-761-6042 or contact us online. We offer an initial consultation at a reduced fee of $50. We accept credit cards and will set up a payment plan, if appropriate. Our offices are open Monday through Thursday, from 9 a.m. until 5 p.m., and until noon on Fridays. Evening and weekend appointments can be arranged upon request.

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Frequently Asked Questions about Child Support in Texas

Frequently Asked Questions about Child Support in Texas

If you are involved in a divorce in Texas and there are minor children involved, you need to understand your rights with respect to child support, whether you are the payer or the recipient. Our Baytown family law attorney answers some of the most common questions parents of divorce have with respect to the payment of child support in Texas.

How Is Child Support Calculated?

The first step in determining the amount of child support to be paid is to establish net income for the payer. Net income includes wages, salary, rental income, retirement income, disability income, commissions, tips, bonuses, dividends and interest and trust income. It can also include alimony from a previous marriage. The following expenses are then deducted from that total:

  • Social Security and federal income taxes
  • Union dues
  • Health insurance costs and medical expenses incurred for minor children

Once the net income is calculated, you multiply that number by a specific percentage, based on the number of children for whom support will be paid. For one child, it’s 20% of the net income, and it increases by 5% for each additional child, up to a maximum of 40%.

Child Support in Texas

How Long Does It Take Before Child Support Payments Start?

The amount of time it takes depends on a variety of factors. If the payer is employed and can be located, and you have a Social Security number, you can ask the court to issue an administrative withholding order. This goes directly to the payer’s employer, who then withholds the amount due from the payer’s wages and pays it directly to the state’s child support enforcement agency, or to a local registry, which then sends it to the custodial parent. Customarily, that will happen within two t0 four weeks. The child support order is retroactive to the date the divorce is filed, so it’s not unusual for a payer to start with an arrearage, which can typically be paid off over time.

If I Am Being Denied Visitation, Do I Still Have to Pay Support?

Absolutely! Under Texas law, support is not conditional on access to your children. If your ex is in violation of the court order regarding visitation, you need to file an enforcement action.

Contact Us

At the office of Linda Stewart Law, PLLC, in Baytown, we bring more than 8 years of experience to clients in south Texas.

To learn how we can help, call our office at 281-761-6042 or contact us online. Our family law attorney offers an initial consultation at a reduced fee of $50. We accept credit cards and will set up a payment plan, if appropriate. Our offices are open Monday through Thursday, from 9 a.m. until 5 p.m., and until noon on Fridays. Evening and weekend appointments can be arranged upon request.

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The Benefits of Mediation in a Family Law Dispute

The Benefits of Mediation in a Family Law Dispute

When your marriage is in trouble or has ended, one of the last things you often want is more conflict. You may simply be weary of the disagreements, or it may be important to maintain a positive relationship with your ex, so that your minor children don’t feel like they are caught in the middle. There’s an alternative to the traditional divorce process—mediation. It can be used to amicably resolve any dispute you may have. The benefits of mediation in a family law dispute can be discussed with our Baytown family law attorney.

It’s Designed to Be a “Win-Win” Situation

In mediation, you work with a third party neutral. That person doesn’t represent either one of you and is tasked only with helping the two of you come to a mutually acceptable and beneficial resolution of any differences. The mediator doesn’t take testimony from witnesses, doesn’t rule on the admissibility of evidence, and doesn’t issue any rulings. The mediator will, however, encourage both of you to consider the costs of litigation, so that you look at ways to compromise and get what you really need.

In mediation, the only outcome is the one you work out with your ex. You are always free to reject any proposal by your former spouse, and can always make your own counter-proposal. You’ll never put your outcome in the hands of a judge or jury.

Benefits of Mediation

It’s Usually Less Expensive

Because mediation doesn’t involve rulings on admissibility of evidence, or determinations of legal issues, mediation typically takes far less time. Your family law attorney won’t need to engage in lengthy discovery, conducting depositions or reviewing documents. There’s no need for motions or other proceedings. In addition, most mediators are available within a short period of time, and most mediation can be completed in a day or two.

Contact Us

At the office of Linda Stewart Law, PLLC, in Baytown, we bring more than 8 years of experience to clients in south Texas. To learn how we can help, call our office at 281-761-6042 or contact us online. We offer an initial consultation at a reduced fee of $50. We accept credit cards and will set up a payment plan, if appropriate. Our offices are open Monday through Thursday, from 9 a.m. until 5 p.m., and until noon on Fridays. Evening and weekend appointments can be arranged upon request.

Se Habla Espanol | ASL and ESL Services Also Available

Joint Managing Conservatorships in Texas

Joint Managing Conservatorships in Texas

If you are involved in or considering a divorce in Texas and there are minor children involved, you need to get familiar with this term—joint managing conservatorship. It may sound daunting, but it’s something with which you are probably already very familiar—it’s the new language used in Texas to refer to custody of minor children. Our Baytown family law attorney can answer any questions about joint managing conservatorships in Texas.

Here’s how it works. In Texas, a parent who is awarded primary custody of minor children is referred to as the “sole managing conservator.” The other parent is called the “possessory conservator.” If the parents are granted joint custody, the relationship is known as a “joint managing conservatorship.” As a general rule, Texas considers a joint managing conservatorship to be in the “best interests of the child,” the standard for such decisions.

Conservatorships in Texas

How Does the Court Determine Managing Conservatorship?

As indicated above, the presumption is that a joint managing conservatorship will be best for any minor children. In fact, a court can (and often does) appoint both parents as joint managing conservators, even if the parties have not agreed to that arrangement.

It’s important to understand, though, that a joint managing conservatorship does not necessarily mean equal access or physical possession of a child. The court has discretion to grant one parent more time or access, based on a number of factors, including:

  • The ability of the parties to reach shared decisions that are in the best interests of the child
  • Whether or not there’s a positive relationship between the parents, or between the children and the parents
  • Whether the psychological, physical and emotional needs of the child will be met by the specific arrangement
  • The geographic proximity of the parents’ homes
  • The preference of the child, if the child is 12 years of age or older

Contact Us

At the office of Linda Stewart Law, PLLC, in Baytown, we bring more than 8 years of experience to clients in south Texas.

To learn how we can help, call our office at 281-761-6042 or contact us online. Our family law attorney offers an initial consultation at a reduced fee of $50. We accept credit cards and will set up a payment plan, if appropriate. Our offices are open Monday through Thursday, from 9 a.m. until 5 p.m., and until noon on Fridays. Evening and weekend appointments can be arranged upon request.

Se Habla Espanol | ASL and ESL Services Also Available

Joint Managing Conservatorships in Texas

Joint Managing Conservatorships in Texas

If you are involved in or considering a divorce in Texas and there are minor children involved, you need to get familiar with this term—joint managing conservatorship.

Contact Us

At the office of Linda Stewart Law, PLLC, in Baytown, we bring more than 8 years of experience to clients in south Texas.

To learn how we can help, call our office at 281-761-6042 or contact us online. We offer an initial consultation at a reduced fee of $50. We accept credit cards and will set up a payment plan, if appropriate. Our offices are open Monday through Thursday, from 9 a.m. until 5 p.m., and until noon on Fridays. Evening and weekend appointments can be arranged upon request.

Se Habla Espanol | ASL and ESL Services Also Available

When is Paternity Presumed under Texas Law?

When is Paternity Presumed under Texas Law?

Child Custody in TexasOne of the most frequent, and often contentious, issues that can arise in family courts in Texas involves the rights of fathers to visitation with and access to minor children, particularly when the parties were unmarried at the time of conception or birth, or there are other uncertainties about paternity. The Texas Family Code has specific definitions of who qualifies as a “parent.” With respect to fathers, a man will meet the definition of “parent” if he:

  • Is presumed to be the father
  • Is legally determined to be the father
  • Is adjudicated by a court to be the father
  • Has acknowledged his paternity

Presumption of Paternity

The Texas Family Code holds that a male will be presumed to be a child’s father if any of the following conditions is met:

  • The man is married to the child’s mother and the child is born while the marriage is still valid
  • The man was married to the child’s mother and the child is born within 300 days after divorce, annulment or the man’s death. This applies even if the marriage is or could be declared invalid, provided the marriage was in "apparent compliance" with the law
  • The man married the mother after the birth of the child and voluntarily declared his paternity of the child, and he has either promised to support the child as his own or his declaration of  paternity is filed with the bureau of vital statistics
  • The man lived in the same household as the child for the first two years of the child’s life and told others he was the child’s father

Contact Us

At the office of Linda Stewart Law, PLLC, in Baytown, we bring more than 8 years of experience to clients in south Texas. To learn how we can help, call our office at 281-761-6042 or contact us online. We offer an initial consultation at a reduced fee of $50. We accept credit cards and will set up a payment plan, if appropriate. Our offices are open Monday through Thursday, from 9 a.m. until 5 p.m., and until noon on Fridays. Evening and weekend appointments can be arranged upon request.

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Grandparents’ Rights in Texas

Grandparents' Rights in TexasWhen couples divorce and there are minor children in the home, the breakup can have a devastating impact on more than the parental relationship. A child’s bond with grandparents can be strong, and the loss of that interaction can be detrimental to the child, as well as the grandparent. Like all other states, Texas has laws governing visitation and custody of minor grandchildren.

Grandparent Visitation in Texas

Under Texas law, a grandparent can successfully petition the court for visitation rights, but must show the court that visitation will be in the child’s best interests. The right to visitation is entirely at the discretion of the court—there is no absolute right to visitation with a grandchild. In addition, the grandparent must show that one of the following situations has occurred:

  • The child’s parents have divorced
  • The child has been abused or neglected by the parent
  • The parent has died, is in jail or prison, or has been determined to be legally incompetent
  • The parent-child relationship has been terminated in a court of law
  • The child has resided with the grandparent for a minimum of six months

If a child has been successfully adopted by someone other than a step-parent or other family member, the grandparents’ rights to visitation are terminated. In addition, a grandparent cannot petition the court for visitation if such an adoption takes place.
Grandparent Custody in Texas

The court may grant physical custody of a minor child to grandparents, but only if it determines that doing so is in the best interests of the minor child. A grandparent who successfully requests custody is also entitled to request child support.

Contact Us

At the office of Linda Stewart Law, PLLC, in Baytown, we bring more than 8 years of experience to clients in south Texas. To learn how we can help, call our office at 281-761-6042 or contact us online. We offer an initial consultation at a reduced fee of $50. We accept credit cards and will set up a payment plan, if appropriate. Our offices are open Monday through Thursday, from 9 a.m. until 5 p.m., and until noon on Fridays. Evening and weekend appointments can be arranged upon request.

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Millions of Dollars Stuck in Texas Child Support “Purgatory”

A recently released report shows that, during the third quarter of 2015, the Texas Attorney General’s office held onto more than $55 million in child support payments that had been made by non-custodial parents. Officials say that amount has nearly tripled in the last four years. Unfortunately, in most cases, nobody really knows why.

A spokesperson for the state attorney general’s office said that there are often good or valid reasons for withholding payment, including:

  • The filing of a dispute by either party to a divorce—officials are reluctant to distribute funds until the legal dispute is resolved
  • The state may have inaccurate information for one of the parties, including address of the recipient
  • There may be a change in the payer’s employment

According to advocates for custodial parents, the money is frequently withheld from families with little or no other resources to meet daily expenses. When funds are not distributed in a timely manner, those families are often forced to seek TANF (Temporary Assistance to Needy Families) payments, which cost taxpayers a substantial amount of money. Advocates say that most recipients can get the state to release funds by hiring an attorney, but that’s a luxury most cannot afford.

An employee in the AG’s office said that the agency works hard to get dollars to recipients in a timely manner, but also acknowledged that the state has no way of tracking how many recipients have money that’s being withheld.

Contact Us

At the office of Linda Stewart Law, PLLC, in Baytown, we bring more than 8 years of experience to family law clients in south Texas. To learn how we can help, call our office at 281-420-8020 or contact us online. We offer an initial consultation at a reduced fee of $50. We accept credit cards and will set up a payment plan, if appropriate. Our offices are open Monday through Thursday, from 9 a.m. until 5 p.m., and until noon on Fridays. Evening and weekend appointments can be arranged upon request.

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Harris County Works with AG’s Office to Collect $150 in Child Support

The Harris County FOCAS program—an acronym for Focus on Collection and Services—worked in partnership with the Texas Attorney General’s office in 2015 to collect more than $150 million in child support payments.

The program, which has been in place for more than a decade, uses a range of legal tools to collect and enforce child support orders. Officials may legally withhold or garnish the wages of a non-custodial parent to pay child support. The county also uses state and federal tax refund intercepts, as well as liens and contempt proceedings. Federal tax intercepts make up about $2 million in annual receipts.

The FOCAS program is not mandatory in Harris County, but parties to a divorce will automatically be included unless they opt out. For custodial parents, there’s a real incentive to participate, as the average monthly support amount collected per case through FOCAS is $766.65, whereas individuals outside the program recover only an average of $530.64. Approximately 85% of parents in the FOCAS program pay their support in full and on time. Only 58% of those outside the program are compliant with court support orders.

Though the program is 12 years old, there are still many older support orders that are not subject to FOCAS. Authorities expect that, over the next few years, the number of non-FOCAS cases in the system will fall dramatically.

Contact Us

At the office of Linda Stewart Law, PLLC, in Baytown, we bring more than 8 years of experience to family law clients in south Texas. To learn how we can help, call our office at 281-420-8020 or contact us online. We offer an initial consultation at a reduced fee of $50. We accept credit cards and will set up a payment plan, if appropriate. Our offices are open Monday through Thursday, from 9 a.m. until 5 p.m., and until noon on Fridays. Evening and weekend appointments can be arranged upon request.

 

Se Habla Espanol | ASL and ESL Services Also Available

 
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