Where there is a "Will" there's a way:  Deciding when to write a Will.

2017


Individuals will frequently hire our firm to assist with a medical power of attorney or medical directive right before they are to have a surgery or medical procedure.  As we discuss the best and worst case scenarios of what could happen in the procedure, the discussion of a drafting a Will inevitably arises.  Many people tell me, “I don’t like thinking about death….so I’ll just let my family fight out what to do.”  However, as we start to visit regarding their eventual goals for their family, they learn that a Will can provide protection and a peaceful passing for them and their family.  Wills are not just about “who gets what”.  Wills are tools to express how and where you would like to be buried.  Wills can set aside resources to pay for the burial so that your last wishes are actually realized.  Wills can also be used to express your wishes regarding young children.  If something happens to you, who do you want to act as the guardian of any gifts to your minor children.  A properly executed Will can save your family from the additional grief of “guessing” what you wanted to happen.  The process of writing a will isn’t just about the process of dying, it’s about planning for a peaceful planning so that your loved ones can move forward.

Target Off Your Back
October 2017


The first of this month premiered the release of Target on My Back, Erleigh Wiley’s perspective and thoughts surrounding the Eric Williams' murders in 2013.  My apologies to Erleigh as I haven’t read the book yet…but the book’s release did inspire me to look at the community of Kaufman since those events took place in Kaufman.  In 2013, the Kaufman community was literally plagued by a mad man.  It became the focus of a media frenzy.  Our lives became a source of someone else’s entertainment.  Yet, this community survived.  The same week that Erliegh’s book was being released, a group of agencies, community leaders, and volunteers met for the fifth annual Mental Health Expo.  It was held in the cafeteria of the local junior high in the City of Kaufman.  City Councilman, Charles Gillenwater, lead the group in a prayer as the event kicked off.  Judge Dennis Jones went from table to table collecting info to be used in one of his local court programs.  Family members visited with volunteers about options for loved ones who were struggling with mental illness.  Dozens of volunteers manned tables to help distribute information and educate the public about the resources available in Kaufman area.  Booths and tables addressed the needs of anyone struggling to overcome a mental health issue, whether the result of drug use, domestic abuse, aging, or other medical diagnosis.  It was nothing short of beautiful.  These were some of the same people that knew Eric Williams and had been affected in their own way by the murders.  Most of these people lived in the Kaufman Community in 2013.  However, instead of cowering in fear over someone who may or may not have a mental health issue, they have chosen to be part of the solution.  Their solution:  to raise awareness, provide more resources, and to increase the coordination of efforts for anyone in need. 

This blog is not about the book, but it is about how people feel.  Life is often overwhelming.  If you’re in a domestic violence situation, everyday feels like you are living with a target on your back.  If you have a mental illness related to aging, drug use, or some other condition, it can feel like you are the target of other people’s ignorance or lack of compassion for your situation.  When you feel targeted, it’s easy to get stuck in the past.  My message to you is:  Instead of feeling like the target, begin targeting the resources in your community.  Even the smallest of communities have something to offer…it’s just a matter of finding those resources.  In the Kaufman and Henderson area alone, at least 20 groups and agencies participated in this 2017 Mental Health Expo.  We have many of them are featured on our resource page which we invite you to use.  Even though legal issues and mental health issues overlap, the root cause between the two often ends up being the mental health concerns.  Kaufman is more than a sleepy little community.  It is a community rich with agencies and people with the heart to help you turn the page.  Their sole goal is to arm you with the resources and tools to write that new chapter in your own book that you can eventually title: “Target Off My Back”.


**For those interested in learning more about community resources, we also encourage you to attend the Sharing Community Resources Coalition meeting, held the fourth Thursday of every month from 10:00 to 11:30 at the Kaufman County Library.


Knowledge is Power! 


Disclaimer:  The information in this website is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this site should be construed as legal advice from this law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.

Expunctions and Non-Disclosures:  Legislative Changes for Dealing with an Ugly Past
September 2017


Expunction and non-disclosure orders are ways for individuals accused or charged with certain crimes to move forward without being saddled with their past criminal history.  They do so by sealing certain records from the public’s view.  Though our firm offers free expunction evaluations, if a person is not eligible for an expunction or non-disclosure order, we always suggest that they seek a re-review of their history every couple of years.  The reason we make this suggestion is because the law is subject to change with every legislative cycle.  This 2017 Legislative Session was no exception.  Historically, the expunction and non-disclosure statutes have been very limited. Only certain offenses were eligible for expunctions or non-disclosure.   After September 1, 2017, more individuals will be eligible for non-disclosures or expunctions than ever allowed in Texas' legislative history.  Here is a summary of some of those changes:

1.  Certain non-violent misdemeanor convictions can now be subject to a non-disclosure order.

2.  Individuals with lower level DWI convictions can now seek a non-disclosure order.

3.  Veterans participating in pretrial diversion programs can also seek non-disclosure orders. 

4.  Many fine-only offenses are now eligible for expunctions. 

If you spoke to an attorney prior to 2017 and they advised you that your case or facts of your history were not eligible for an expunction or non-disclosure order, then consider a second, updated opinion as most of these changes were made retroactive.  This means the new changes in these laws will apply to events that occurred prior to September 1, 2017. 


If you need this type of relief, don't delay in seeking the expunction or non-disclosure.  As the legislature can "giveth", it can also "taketh."  Meaning, that these expanded opportunities are only authorized until such time as the Legislature changes it's mind.  This is a window of opportunity for individuals who have been saddled with a false history or certain embarrassing incidents from their youth.    

Grand-parent custody:  Supreme Court of Texas ruling affects grand-parent rights

November 2018


Most people are familiar with the concept of "Grand-parent rights" and the limited options that grand-parents have to file a motion requesting access to their grand-children.  Several years ago, the Supreme Court of the United States limited those rights even further with the Troxel case, which (in a nut shell) said that parents should be the guiding force behind what happens to their children.  But what happens when a parent has delegated all or part of their parental duties to a grand-parent?  


The Supreme Court of Texas, factoring in the guidance of Troxel, answered this question for us in a recent opinion In the Interest of H.W. (Tex. 2018).  In this case, the parents had delegated many of the duties of being a parent to the grand-parents.  The children lived with the grandparents over six months and during that time acted like a parent by setting basic rules, helping with medical treatment, and assisting with educational decisions.  Both parents argued that the grand-parents did not have the right to sue for custody because both parents had continued to be involved with the children.  Neither parent had "just left or abandoned" the children.  Each parent saw the children on a regular basis and had each provided support for their children.  The Supreme Court of Texas ruled against the parents and found that the grand-parents did have the right to sue for custody of the children.  In reaching their decision, the justices noted that if the grand-parent is acting like a parent, then they should have the right to step into the shoes of the parent.  The overall moral of the story is that a parent still has an absolute right to raise their child, but if they delegate the duty of parenting, then they may also end up delegating some of their rights as a parent as well.  



CPS:  With Friends like this……Who needs enemies?
2016


There is a children’s movie called “Bugs Life” that features a dysfunctional ant named “Flick” who is constantly causing problems for the colony, despite his best intentions.  Early in the movie, one ant tells Flick, “Help…. Don’t help.”  When I think of CPS, that statement constantly comes to mind:  more families would probably be helped if CPS didn’t help.  The organization that most people know as “CPS” is now actually the Department of Family and Protective Services.  A few years ago, they changed the name which I suspect was to make it a bit more “family friendly” sounding.  Despite the name change, they have still struggled with public perception issues as an organization that consistently fails in its general objectives to protect children and reunify families.

Historically, concerns raised by attorneys and litigants about the conduct of CPS workers or their policies were overshadowed or dismissed by the general belief held by judges that CPS workers were honest, competent, or sufficiently staffed/equipped to respond to the needs of children affected by CPS investigations.  Below this blog is a copy an opinion by Janis Graham Jack, Senior United States District Judge, published on December 17, 2015.  Throughout her 255 page opinion, she documents the historical and current state of the Texas CPS system.  Through this opinion, the judiciary formally recognized that the CPS system in Texas is broken.  Her findings included:

            “Texas’s foster care system is broken and it has been that way for decades.”

“….foster children often age out of care more damaged than when they entered.”

      That “the DFPS’s disregard of investigations, child-on-child abuse, enforcement, and appropriate staffing levels show that DFPS substantially departs from professional judgment toward RCCL operations.”

            “It also appears that a corollary of inappropriate placement is overmedication.”

These are frightening findings for a system that the legislator initially intended to protect children.  Despite concerns about the system, many parents in custody disputes attempt to use CPS as a tool to get a “leg up” in their custody dispute.  Before calling CPS, any parent that cares about the safety and well-being of their children should consider whether or not their child is truly at risk of harm.  We have met more than one parent that called CPS to report abuse by the other parent, only to find themselves being investigated by CPS and their children subject to removal into a tragically damaged foster care system.   If you suspect that your child has been injured by the other parent, the first phone call should be to a doctor to determine if the injuries are serious.  If the doctor determines that the injuries are concerning, the doctor has a mandatory duty to report the event to CPS and/or law enforcement.  From there, you will have at least one professional, i.e. the doctor, that is willing and able to look at your situation professionally and objectively… even if CPS neglects to enter the picture.

Maybe one day, CPS will be like Flick in the little “Bugs Life” movie and get it together.  Justice Janis Jack has appointed a Special Master to make recommendations to improve the CPS system in Texas.  But until then, help yourself by cautiously calling CPS for help - unless it is really required or needed.  Calling CPS to simply inflame a custody fight is never a clever move considering the substantial risk to your children.  This opinion by Justice Janis Jack punctuates the risk to your children.  If you are concerned about your children, but it doesn’t rise to the level of a CPS investigation, you still have options to safely protect your children.  These options could include protective orders, restraining orders, random drug testing through the divorce court, and court ordered family counseling.  More and more jurisdictions are offering programs for families that are struggling through the process of finalizing custody disputes outside of the CPS system.  Visit with an attorney in your jurisdiction to learn what options are available in your jurisdiction and within the Family Code to help your children without subjecting them to foster care abuse.

ATTORNEYS AT LAW AND MEDIATION CENTER

Financial and Other Resources for Families Affected by COVID-19
March 2020


We know that many clients are being affected by the COVID-19.  Many are being affected by involuntary layoffs or shortages of supplies at the local grocery store.  Below are a list of entities and organizations that are offering assistance for financial and other relief for families who are affected by this crisis.  We will work to update this list as more resources become available.  Our hearts and prayers are with any family that is affected. 


Click the blue button link to direct you to the resource site: 

The Cops Took My Stuff!!

2016


You were at home and minding your own business… when the police come with a search warrant for you home.  During the search, the police start hauling out anything of value including televisions, cash, and the first motorcycle you purchased in high school.  A couple of days later, you are served with paperwork telling you that your property was seized by the State as alleged proceeds of drug dealing.  The paperwork also tells you that you have 20 days to answer… so you call the officer and ask him/her if you have to do anything.  They tell you that you don’t have to do anything…. But conveniently forget to tell you that if you do nothing, then you will lose all of your property by default.

What you have actually been served with is a notice of seizure.  The State is required to give you this notice if they intend to keep your stuff.  The rules of civil procedure apply to these types of seizure.  This means that if you do not file an answer by the end of 20 days, then a default judgment can be entered against you without any other hearings or notice.  A default judgment is what the name implies—a judgment that happens because you failed to file an answer. 

Even though seizures are civil matters, you should visit with a criminal attorney before filing an answer to decide if you should file one or not.  Once you file an answer, then the State could file additional motions against you.  A criminal attorney can help you decide whether or not filing an answer will save your stuff or expose you to further criminal liability.

*This is not a substitute for legal advice.  Any person accused of a crime should consult with an attorney for more information specific to their case.

​​COVID-19:  How does it affect your case or pending litigation?  Do I still get to visit my child after "shelter orders" are issued?
March 2020


(COPIES OF REGIONAL EMERGENCY FAMILY LAW ORDERS ARE BELOW THIS ARTICLE- Click Blue button to view order in your county of residence or litigation)


If you live in the surrounding area, then more than likely, your city or county has already put a "shelter law" or ordinance into effect.   These rules require or encourage people to remain in their homes except for essential functions.  Because of these new rules and the concerns related to the COVID-19 virus, we have had many individuals calling with concerns about how to handle visitations and how will their cases move forward.  This is a general outline to assist you with those questions.  Below this article are some of the actual orders which have been entered by the courts in this region to help calm down issues related to the COVID-19 virus.  Here are some common questions and answers that individuals have had regarding the legal system in light of COVID-19 rules:


Question 1: My case is scheduled for a hearing in the next two or three weeks.What will happen to my hearing date? Each court in each jurisdiction is working to reschedule non-emergency hearings. This is a temporary rescheduling until the courts can set out guidelines which comply with "shelter rules" and CDC recommendations. Local judges are working to implement new systems in the next couple of weeks to keep cases moving forward. Cases which require larger numbers of witnesses may be slightly delayed by logistical or technical issues. However, the goal of all courts is to finds ways to keep cases moving. It is simply a work in progress at this point.


Question 2: My child is still home from school, do I have to take my child back to the other parent? Yes. All of the judges in this region have issued emergency "standing orders" which instruct parents to follow their current visitation schedules as originally published by the schools. For example, if your return time would normally be to the school on Monday mornings, then you need to return your child to the other parent at that time to the other parent, but not to the school.

Question 3: What if the other parent is engaging in risky behavior and I'm afraid that my child is going to be exposed to the virus? The judges have asked attorneys to instruct their clients to follow visitation schedules as set out in their orders. A concern of exposure will be insufficient to withhold. However, many judges have advised that if there has been a heightened risk or an actual exposure, then they will attempt to deal with those cases on a "case by case" situation. Let us know if you have an increased concern of exposure, as opposed to a general concern, so that we can help you assess what options may be available.

Question 4: What if I have been exposed to the virus and I'm showing symptoms? Many judges have encouraged parents to use good co-parenting and communicate with the other parent about these issues. They understand that you want to see and be active in your child's life, but if you have been exposed, you may want to self-limit your access to Facetime or telephonic access for the safety of your child. Bottom line, they are asking all parents to use good judgment.  Some counties, like Dallas County, have issued orders which require parents to communicate regarding any such exposure to the COVID-19 virus.


Question 5: Can I still talk to my attorney? Yes. We are still meeting with clients. However, we have been scheduling more phone conferences so as to reduce foot traffic in our office, thereby limiting the risk of exposure to our clients. Sometimes, a face to face meeting is required, but we are offering other options like calls and emails to reduce exposure. The bottom line is that we are still accessible, even if you are homebound by a shelter run in your city.

Question 6: Are you still open? Yes. All of the shelter rules which have been put in place permit legal services to continue. However, the judges in each county have asked attorneys to reduce foot traffic and utilize telephonic and electronic means for communications.  You can still have access to legal services while balancing the need to reduce exposure risks between other clients.


ORDERS ISSUED BY REGIONAL COURTS:




​​Trudging without a Will:  2017 Legislative Changes to Probate Requirements
September 2017


We encourage our clients to write a Will so that their wishes are honored and their passing will be less stressful on family members.  However, despite their best intentions, many people just never get around to the task.  Probate can impose a financial burden on many small estates.  To relieve this pressure, the Legislature invented Small Estate Affidavits to help resolve certain small estates without the necessity of the full probate process.  Historically, these estates were capped at $50,000.00. After the 2017 Legislative session, this capped was raised to $75,000.00.  This means that more families may be able to avoid the expense of probate with Small Estate Affidavits.  To insure that the affidavits are properly executed, we recommend at least having your affidavits reviewed by an attorney to insure their compliance with these new changes in the law.

Cheney, Fernandez & Associates, P.C.

Other COVID-19 Orders 

March 2020


You may have another case pending in a different type of court, like a personal injury suit or bankruptcy court.  As we receive notice of those orders or other local orders from cities or counties, we will work to post those below for your convenience.


My Niece is accusing me of rape!!
2016


You notice that everyone in the family is suddenly avoiding you… and then you receive a call from a detective wanted to go over some allegations.  During the call you learn that your niece is claiming that you sexually assaulted her two years ago.  After the call, the think to yourself, “this can’t be right… the only evidence is her statement.”  You hope that once the detective realizes that his only evidence is your niece’s statement…. that the charges will just go away.  When your name appears in the next month’s list of indictments in the newspaper, you suddenly realize that the charges not going away...and instead, are proceeding forward in the worst way possible. 

This is a common situation for many people accused of any type of sexual offense.  Even though many juries prefer some type of DNA or forensic evidence, the law does not require the State to produce this type of evidence in order to convict you.  If the child testifies and the jury believes the child “beyond a reasonable doubt” then a defendant can be convicted of sexual offense.  If the jury does not believe the child and the only evidence is the child’s testimony, then a jury cannot convict the defendant.  A variety of minor details can sway a jury.  Before talking to an officer or detective, a person accused of any sexual offense should visit with a criminal defense attorney to understand and factors that could influence their case. 

*This is not a substitute for legal advice.  Any person accused of a crime should consult with an attorney for more information specific to their case.

The Wild Side of Custody Disputes:  What we can learn from Jumanji: Welcome to the Jungle
April
2020





My inbox has been peppered with COVID-19 emails for three weeks strait now.  I appreciate the information, but there reaches a point where you have to be thinking, “Can there be one just one article out there that is not about COVID-19?”  So, I thought what better way to break things up than with a “wild” approach to family law, namely, the cross-application of family law to the film Jumanji:  Welcome to the Jungle.   For those that have not seen “Jumanji:  Welcome to the Jungle”, I won’t include more spoiler alerts that necessary.  However, this article will make far more sense if you watch the movie first. 

“Jumanji:  Welcome to the Jungle” is a reboot of the Jumanji movie which starred Robin Williams.  The new version has five main leads:  Dwayne “the Rock” Johnson, Kevin Hart, Jack Black, Karen Gillan, Madison Iseman, and Nick Jonas. The adventure begins when each actor choses a role to play in the Jumanji video game.  Once in the game, they learn that each character has certain strengths and weaknesses.

At this juncture, you have to be wondering, “It’s a movie…set in the jungle….about a video game….so how can this even remotely apply to family law?  What have you been doing while following shelter rules…..and will you share.”  Most critics or movie goers looked at the movie and commented on the actors, the music, the special effects….all the usual movie stuff.  Interestingly, this movie actually has some really great life lessons worth sharing. 

1. Don’t focus on the title….focus on being the best you.   At the beginning of the Jumanji game, each character chooses a role that they believe will be appealing to who they are or they want to be.  Madison Iseman chooses to be “Shelly Oberon”, the “curvy genius”, imagining that the character is a glamorous one.  Once in the game, she learns that “Shelly” is a slightly pump middle aged man.  She struggles letting go of her former identity (i.e. the school babe), and learns that she needs to be more than her former self to help her team succeed.  Gradually, each player learns that the game doesn’t define their choices or limitations….but instead, that they have the power to make decisions and sacrifices for their team.  Most people that become involved in a custody lawsuit (whether through a divorce or paternity suit), walk in with an idea of the title (or character) they want:  “I want to be primary….I want to make all of the decisions….I want to be the one that……”  The family law litigants that are able to work through the process peacefully, are the ones that use terms like, “My family needs me to…..We need to work together to…..We should come up with a plan to…..”  If you have ever come into a consultation with me, I have probably told you, “don’t get hung up on the title, focus on being the best parent you can be.”  At the end of the day, the terms “Sole managing conservator” and “Joint managing conservator” are just titles.  After the titles usually follow some basic guideline rights and duties that each parent is expected to follow.  But what you do with those rights, duties, rules, or limitations, is what is far more important that the title.  It’s not enough to be the “cool character” and have the title “sole managing conservator.” A title or the name of a character won’t make you the “best” parent. A court order won’t make you better or worse.  It’s your choices that will make you a good parent, or a great parent.  You have the power to guide, teach, and inspire your child.   How you use that power is up to you.

2.  Limitations are really just opportunities:  Once in the game each character focused on their role, their strengths, and then hyper-focused on their limitations.  Dwayne Johnson struggles to imagine life in the jungle without an inhaler. Jack Black does a wonderful melt down moment after learning that cell phones don’t exist in Jumanji!  The game ads to their limitations by giving most of the characters “weaknesses”. Kevin Hart’s weakness is cake which causes internal combustion.  (Again, you just have to watch it to appreciate the full value of this description).   Karen Gillam’s weakness was venom. Eventually, Karen’s character is able to save Jumanji by exposing herself to venom.  Each character took their “negative” weakness and turned it into an opportunity for something better.  They also learned that they had opportunities for success despite a series of adverse events.  Family law really isn’t much different.   Divorce isn’t fun.  Contested custody suits are no picnic in the park.  Part of a relationship is ending, even after repeated attempts to fix the relationship.  That hurts.  It hurts even worse when you see your child struggling through the process.  Instead of focusing only on the ending of something, focus on “the next level”.   Every challenge in life is about learning to grow as a parent and a person.   

3.  Being single doesn’t mean you have to do it alone. Prior to the kids entering the Jumanji game, they had known each other in school.  They weren’t strangers, but they had chosen to socially distance themselves from one another.  Nick Jonas was stuck in the game for twenty years because he had chosen to work alone.  Gilliam reminds Iseman, “You’re aware there are other people in the world, right?” One by one, each character realizes their success depends on them working together as a team.  In my younger years, the saying was, “It takes a village to raise a child.”  Regardless of your marital status, you still have the ability to develop a team to help you with raising your child.  Whether you like your co-parent or your parents, they are a natural choice to be part of your team.  If you are completely alone, connect with parenting support groups so that you don’t feel isolated.  Amazingly, I have seen parent after parent struggle through contested litigation and parenting “single handedly” thinking they were “saving the day” by stressing themselves and their children to the hilt.  Parenting is hard and no one has ever really expected a parent to do it alone.  Asking for help isn’t a sign of weakness….it’s a sign of caring.

4.   Different isn’t bad….sometimes it’s just different.  The Jumanji group was diverse in skills, personality, and appearances.  Kevin Hart was a strong player in the game, even though he was the slowest and shortest player.  Gillam and Iseman spent a good part of the game despising and playing down the other character.  Johnson tells the team and Hart that “We need each other, whether we like it or not.”  Eventually, they learn that each player brings assets to the game.  They learn that the things that make them different actually make them stronger.   They brought their own knowledge to the game and they shared their knowledge.  Parenting really isn’t that much different.  Your child is half you and half the other parent.  Things will happen that you won’t understand….and those exact same things will make perfect sense to your co-parent because they did the exact same thing as a kid.  The challenge is finding a balance so that you can leverage differences for the benefit of your child.    

5.  Words are weapons.  Early in the movie, the principal quips ‘chose your weapons.’ Throughout the game, the characters use boomerangs and fighting skills as their weapons.  But the most powerful weapons were simple words like, “I’m sorry” and “We work really well together.”  Contested family law litigation is hard.  At times, parents feel like they are being swallowed by a hippopotamus or chased by a Rhino (again…you just have to watch the movie).  They can’t hit the other side, so they use words as weapons to hurt the other side.  Some parents spend years telling their children how bad the other co-parent is (as if the child really needed to know), while others use the time talk to their children about being something more than a “non-play character” in real life.  How parents use work weapons will determine whether their child gets to live a horror story, or block-buster movie.   You get one life and you decide how you are going to spend it with your children.  Choose your weapons wisely.

 At the end of the day, custody disputes can be like walking through the jungle in Jumanji.  There are perils and there are opportunities, but eventually, it will end.   How you play the game will determine what you get out of the game.  If you engage in negative antics with your children, then you run the risk of losing the most valuable prize in the game: your child’s respect.  Some people forget that they may want a relationship with their children after they turn 18 years of age.  Respect isn’t bought with a new phone or a new car.  Respect is earned through many of the simple principles discussed above.  The lessons from Jumanji show us that life is more than just playing the game, it’s about growing with the game so that we can move to the next level.   

For additional pearls of wisdom, watch the movie.  If nothing else, you will get to see Kevin Hart explode and Jack Black give flirting lessons.  Sometimes laughter is the best medicine through tough times.  Enjoy!