The Moon Law Firm YouTube Channel is Up!

I've started a YouTube Channel specifically for the purposes of answering your legal questions. All you have to do is send in your question to my email address at JMoon@MoonLawFirm.com. If it's one of the questions to be chosen, I will answer it in next week's episode and offer you a free one hour office consultation. 

As always, these videos are intended to be for general information and education. They are NOT a replacement or a substitute for licensed legal counsel. If you have a case pending, you need a lawyer dedicated to the specific facts and applicable law of your case. If you are in urgent need of representation, please feel free to contact us at 713-999-9398 or JMoon@MoonLawFirm.com. Thanks and enjoy!

Contempt In A Family Law Case

This week I’m continuing a series of posts regarding the potential remedies one might have if they find themselves in a situation where the other parent of their child refuses to abide by a current court order. This week’s post will be on enforcement by contempt. (As usual, this post is not intended to be a substitute for legal advice. Your situation is unique and requires individualized legal advice. Please contact an attorney to discuss your case. This article is intended to be general information on the subject.)

It’s a phrase that’s familiar to anyone who has ever watched any type of courtroom drama, “I hold you in contempt!” In the broadest sense contempt simply means that you are not following the direction or order of the court. What does this phrase really mean in the context of a family law case?

A court may enforce by contempt a final order for possession of and access to a child. Tex. Fam. Code Ann. § 157.001(a), (b). The court has the authority to hold a person in contempt for failing to abide by the current orders in a family law case.  In order for a court to hold an individual in contempt, a motion for enforcement must be filed in the court of continuing, exclusive jurisdiction. Tex. Fam. Code Ann. § 157.001(d). The court of continuing, exclusive jurisdiction is usually the court that rendered and entered the order you are trying to enforce. 

Like most enforcement situations, my advice is to first check the underlying order to determine the exact nature of the violation and the provision of the order being violated. The underlying order sought to be enforced by contempt must set out the details of each obligation in clear, specific and unambiguous terms, and the order must not rest upon implication or conjecture or be uncertain or susceptible to different meanings. Ex parte Slavin, 412 S.W.2d 43 (Tex. 1967). If the order is vague or ambiguous, the order may be clarified so as to be enforceable by contempt, Tex. Fam. Code Ann. § 157.421. The request for clarification may be made before a motion for contempt is filed, in conjunction with a motion for contempt, or after the denial of contempt. Tex. Fam. Code Ann. § 157.424.

Once the motion has been filed, the court must set the date, time, and place of the hearing and order the respondent to personally appear and respond to the motion. Tex. Fam. Code Ann. § 157.061(a). The other parent must also receive adequate notice of the date of the hearing. Tex. Fam. Code Ann. § 157.062(a), (b).

Assuming that you are successful in your request to have a court enforce an order by contempt, the court will issue an enforcement order. An enforcement order must include in ordinary and concise language the provisions of the order for which enforcement was requested, the acts or omissions that are the subject of the order, the manner of the respondent's noncompliance and the relief granted by the court. Tex. Fam. Code Ann. § 157.166(a).

The court may also impose incarceration or a fine for criminal contempt. If the order imposes such a penalty, an enforcement order must contain findings identifying the provisions of the order for which enforcement was requested and the date of each occasion when the respondent's failure to comply with the order was found to constitute criminal contempt. Tex. Fam. Code Ann. § 157.166(b). If the enforcement order imposes incarceration for civil contempt, the order must state the specific conditions on which the respondent may be released from confinement. Tex. Fam. Code Ann. § 157.166(c).

Contempt is a powerful tool at the disposal of anyone who is the victim of another party who is not following the orders of the court. In the context of a family law case, contempt is the likely remedy for all manner of violations of the court’s order. If you have any questions or comments regarding contempt or family law case, please feel free to contact us. 

Habeas Corpus Child Custody - Get Your Child Back

Family Law deals with a great number of difficult situations. Ending a marriage or a relationship where a child has been born can be of the most difficult. One of the main issues individuals will face is sharing their child with the other parent. Obviously, it is legally required and in the best interest of both parents and the children involved for everyone to abide by the current court order. However, what do you do if the other parent refuses to return your child? This article discusses one option of enforcement if the child has not been returned to the parent: Habeas Corpus.

1. Consult your Orders

The first step is to consult the most recent orders from the court on your case. The court orders establish the rights and duties of both parents regarding the child or children. The main determination to make is what time and date are you supposed to have your child according to the court order? If the order requires the return of the child on a specific time and date and the other parent does not comply, that parent is in violation of the court’s orders.

What happens if there is no court order governing right to possession of child? This would occur if there has been no prior litigation adjudicating the rights and duties of the parents regarding the child. If the right to possession of a child is not governed by an order, the court in a habeas corpus proceeding involving the right of possession of the child:

(1)   must compel return of the child to the parent if the right of possession is between a parent and a nonparent and a suit affecting the parent-child relationship has not been filed; or

(2)   may either compel return of the child or issue temporary orders if a suit affecting the parent-child relationship is pending and the parties have received notice of a hearing on temporary orders set for the same time as the habeas corpus proceeding.

Tex. Fam. Code Ann. § 157.376(a); Rodriguez v. McFall, 658 S.W.2d 150 (Tex. 1983) (mother entitled to return of child from paternal grandparents); Whatley v. Bacon, 649 S.W.2d 297 (Tex. 1983) (surviving father entitled to habeas against maternal grandparents).

If the order provides that you have a right of possession, the first step should be to contact the other parent to try to resolve the issue without litigation. It’s always best if the parents can work together outside of the judicial system. This will avoid unnecessary costs as well as time away from family and work.

2. Consult your attorney

Let’s assume that you have consulted the orders and determined that you have the right of possession and the other parent has not returned the child. The next call you should make should be to your attorney. Your attorney can advise you what your next steps are and what pleadings to file in order to have your child returned to you. Keep in mind that this article is intended to provide general advice and that there might be (and probably is) facts specific to your situation that would require a different tactic than what is mentioned in this article. Always consult with a legal professional before going to court.

I always recommend that individuals contact an attorney as soon as possible because letting too much time expire might cause difficulties in asserting your rights. If the parent without the child has by consent or acquiescence relinquished actual possession and control of the child for six months or more preceding the date of the filing of the petition for the writ, the court may either compel or refuse to order return of the child. Tex. Fam. Code Ann. § 153.373(a). The court may disregard brief periods of possession and control by the relator during the six-month period. Tex. Fam. Code Ann. § 153.373(b).

As always, it is very important that you consult an attorney as soon as possible so that they can guide you and inform you of your rights and obligations.

3. Habeas Corpus

A writ of habeas corpus under Chapter 157 of the Texas Family Code is used by the parent with a legal right to possession of a child in an effort to regain possession from a person wrongfully retaining the child. The sole issue in almost all habeas corpus proceedings is whether the person who is claiming the right to the possession of the child is currently entitled to possession of a child by virtue of a valid court order. This is the reason you will want to consult your most recent orders to determine who has the right of possession.

The parent entitled to possession may file a petition for a writ of habeas corpus in either the court of continuing, exclusive jurisdiction (the court that issued the most recent orders in most cases) or in a court with jurisdiction to issue a writ of habeas corpus in the county in which the child is found. Tex. Fam. Code Ann. § 157.371(a). Ex parte Jabara, 556 S.W.2d 592 (Tex. Civ. App.—Dallas 1977, no writ).

Although a habeas corpus proceeding is not a Suit Affecting the Parent Child Relationship (known as a SAPCR), the court may refer to the provisions in the Family Code under Title 5 for definitions and procedures as appropriate. Tex. Fam. Code Ann. §§ 101.001 et seq., 157.371(b).

Subject to the Uniform Child Custody Jurisdiction and Enforcement Act and the Parental Kidnaping Prevention Act, 28 U.S.C.A. § 1738A, if the right to possession of a child is governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child must compel return of the child to the parent with the right to possession only if the court finds that parent is entitled to possession under the order. Tex. Fam. Code Ann. § 157.372(a); Strobel v. Thurman, 565 S.W.2d 238 (Tex. 1978) (the granting of a writ of habeas corpus “should be automatic, immediate, and ministerial … upon proof of the bare legal right to possession.”); In re Lau, 89 S.W.3d 757 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (habeas must be granted in absence of written finding of serious immediate question regarding child's welfare).

In a suit in which the court does not compel return of the child, the court may issue temporary orders if a SAPCR is pending and the parties have received notice of a hearing on temporary orders set for the same time as the habeas corpus proceeding. Tex. Fam. Code Ann. § 157.373(c). Notwithstanding any other provision of law, the court may render an appropriate temporary order if there is a serious immediate question concerning the welfare of the child. Tex. Fam. Code Ann. § 157.374; In re Lau, 89 S.W.3d 757 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (habeas corpus petition must be granted in absence of written finding of serious immediate question concerning child's welfare).

A Habeas Corpus proceeding is a powerful tool the be used by a parent whose child has been wrongfully kept from them. In another article I will discuss other method of enforcement of court orders. As always, please contact The Moon Law Firm if you have any questions or comments regarding Texas Family Law. I look forward to working with you.

Can Your Facebook Be Used Against You

Most people have done something that they are not too proud of at one time or another. All of us have those moments we would rather forget forever. Now, however, those moments may be immortalized forever in the pages of social networking sites such as Facebook, Instagram, Twitter and others. Usually these indiscretions are laughed about and then removed from the web. However, they take on a different significance when one is in the middle of a lawsuit. What if you are in the process of going through a divorce, lawsuit or criminal suit? Can social media be used in your case?

The answer to this question, like so many other legal questions, is that it depends. While information on social media websites may contain embarrassing, obscene or even incriminating information, the challenge is getting that evidence admitted in a court of law. Assuming the party admits to the posting, photo, etc. the information can be used as an admission of that party under Texas Rule of Evidence 801(e)2. However, this article will primarily deal with the process of authenticating and admitting this information at trial.

If a party denies that the information another party is attempting to use is genuine, that information will need to be authenticated before being admitted. Authenticating evidence is discussed by Texas Rule of evidence 901. Rule 901 states that, “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Texas Rule of evidence 901.

In layman’s terminology, this means that an item of evidence can be authenticated by other information that proves the item is what the person attempting to use it claims it is. For example, an exhibit can be authenticated by testimony of a witness with knowledge of what the exhibit is, comparisons by expert witnesses, distinctive characteristics of the exhibit, or other similar means. Texas Rule of evidence 901(b) 1, 3, and 4. Using this type of evidence against a party is a two step process. The first step is to establish that the printout from the social media website is an authentic representation of that website. The second step is to link the authentic information to the opposing party.

Authenticating information from a social media site means proving that the information in the computer printout is a fair and accurate representation of the information on the website itself. This may be able to be satisfied by the person who printed the social media information testifying that the witness printed the exhibit; the witness is familiar with the computer and printer used to print the exhibit; and the exhibit accurately depicts the web site as it appeared on that day. Texas Rule of Evidence Rule 1001(a), (c) & (d). The witness does not need to be the author of the website, but rather can testify to the fact that the pages printed from the website are accurate. Id.

Once the information has been deemed to be authentic, the party attempting to use the information must establish that the opposing party is the author of that information. One way to link the opposing party to the information may be to establish that the post or print out contains distinctive characteristics that can be linked to the author. Texas Rule of Evidence 901(b)(4).

Some of these “distinctive characteristics” include the return–address line of an email or instant message, the date and time of the correspondence, the subject line, the contents and context, internal characteristics such as known speaking or grammatical usage, nicknames or specialized terms, or any other circumstances, such as conversations or events either before or after the e–mail or instant message that tend to make it more likely that this message came from a certain person. See Shea v. State, 167 S.W.3d 98, 104–105 (Tex. App. – Waco 2005, pet. ref'd).

Similarly, the connection between a particular chat–room posting and a specific person can be established by the following: 1) the screen name can be traced to the identified person, who has previously used this specific screen name in chat–room conversations; 2) the identified person responded to a request for a meeting with the person using a specific screen name, 3) the person using the screen name identified himself as "X" and that self–identification is coupled with other particularized information that applies to X, such as a street address, e–mail address, job, or personal description, 4) the identified person had information given to the chat–room participant using the specific screen name, or 5) search of the identified persona's computer hard drive shows that the user of that computer used the same screen name as the chat–room participant. See United States v. Tank, 200 F.3d 627, 630–31 (9th Cir. 2000).

Just as e–mails, instant messages, and chat room sessions can be linked to particular individuals by witnesses with sufficient circumstantial evidence to make the link, postings on social websites should also be subject to this same method of authentication.

There’s an old saying that “If you don’t want people to know you've done something, don’t do it in the first place.” This old adage remains true in the digital age as well. Be cautious of what you post to your social media pages because that information can be used against you in court. Additionally, information on social networking sites can be useful information in your lawsuit so it pays to have print outs and be able to authenticate those printouts.

Family Law Handbook

Attached to this blog post is a ​basic outline of what to expect during a family lawsuit. It answers most general questions but don't hesitate to ask me a more specific question if you have one. I look forward to hearing from you. 

​Click Here