all litigants Are people
Family law litigants come from all walks of life and a wide variety of issues bring them into the courtroom. Some struggle with anger or mental health issues, and while some have a depth of resources to draw upon, others struggle to pay their bills. What they all have in common is a shared humanity that the court should recognize.
Who you hire, your political connections, affluence, gender, gender identification, race, or sexual orientation should have no bearing on the outcome of your case or how quickly it is heard.
My Ideas for the 245th
LGBTQ families are no different than heterosexual families; they value and deserve equal and compassionate treatment under the law by our courts. It is critical that family court judges appreciate this simple fact, and that they are familiar with the many issues that LBGTQ families face in the Texas family courts. In 2015 the Supreme Court of the United States decided in Obergefell v. Hodges that the Defense of Marriage Act statutes were unconstitutional by discriminating based on sexual orientation. While this was a welcome and widely celebrated decision, it raises a number of questions that will now need to be decided by family courts.
Some questions, such as whether there can be two mothers or two fathers listed on a birth certificate, how surrogacy is treated and the presumption of who is a biological mother, will require judges who will apply the letter and spirit of the Obergefell v. Hodges decision to arrive at fair and constitutional outcomes. Other questions that arise from these changes in how our legal system treats LGBTQ couples will be so-called "questions of first impression," with our family courts creating new legal precedent to decide these matters.
For example, some cases will raise questions about whether people would still be married who received a same-sex marriage in another state, or would have been common-law married in Texas (under Obergefell) but were unable to receive a divorce while Texas refused to recognize the validity of their marriage. Couples falling into these categories may have separated or even remarried prior to the Obergefell v. Hodges decision. For couples such as these, courts will have to decide what rights, if any, would have accrued under their prior marriage, and whether the subsequent marriage might now have an impediment to being valid. These are important questions with far reaching impact for LBGTQ families and will potentially create legal precedent that will be followed by other courts.
Increasingly alarming is the continued move of state legislative bodies towards laws that allow for discrimination against LGBTQ families seeking to adopt. The arguments proffered by the supporters of these types of legislation are full of junk science and personal bias. As a parent and a family attorney with experience representing children in the Child Protective Services system, I am intimately familiar with the importance of all children having a loving home with parents who care for them and place their interests first, no matter those parents' sexual orientation or gender identity.
Unfortunately, arriving at fair and constitutional outcomes will be difficult for judges who are not aware of these issues, or who due to personal bias or political pragmatism do not or cannot recognize the rights of LGBTQ families in the same way as they recognize the rights of heterosexual families.
It is with much dismay that I learned five out of nine Republican incumbents for the family benches donated $5,000 to $10,000 in February to the Conservative Republicans of Texas, a political action committee (PAC) that is listed as an anti-LGBT hate group by the Southern Poverty Law Center. This group is headed by two powerful "king makers", whose mailers are regarded as necessary to survive the Republican primary. One of these king makers has been recorded saying the "homosexual political movement can easily recruit children into their evil, wicked activities." He was also recorded saying before the Obergefell decision, "if they were going to come out ruling that marriage between two individuals is legal, let's do everything we can to stop it just like we stopped abortion."
All nine Republican incumbents have been endorsed by this anti-LGBT hate group for this election. Even if each judge who donated to, or was endorsed by, this hate group does not personally share in its mission of denying equal treatment under the law to the LGBTQ community, the power of this group (or the individuals who run it) over the Republican primary process raises legitimate concerns about whether these judges would feel pressured to not hear or grant a same-sex adoption, or recognize the existence of a same-sex common law marriage, to avoid having a primary opponent run against them in the next electoral cycle by this group.
It is critically important that we have judges who will consider the facts in these cases impartially, constitutionally, and with a deep appreciation of the universal humanity, and rights, of all families who come before the court.
Discrimination of any kind has absolutely no place in the judiciary, and the judiciary should not be financing groups that engage in legislative efforts to enact discriminatory policies.
Mental health issues pervade family law cases in numerous ways. Some of the most common examples seen are in considerations about whether a parent is unfit to care for their children due to a psychiatric disorder, or whether a spouse is disabled and should receive spousal maintenance due to mental illness. Even in cases in which these issues are not a factor, it is common (and understandable) for people to struggle with the emotions stirred up by the dissolution of a relationship.
I was impacted by the loss of a client earlier in my career to suicide. This event permanently changed how I work with my clients, especially those who are struggling. I am fortunate to have the input of my spouse, a psychiatrist, in considering their well being and next steps for their cases.
It is important to have a basic understanding of mental health, the distinctions between various mental health providers, and the evidence supporting various recommendations; it is critically important to have that understanding when hearing testimony in which one party is requesting something from the court due to his or her, or the other party's, psychiatric diagnosis. For example, if a parent has been diagnosed with Bipolar Disorder and has had a history of instability, but more recently has been under the care of a psychiatrist and on an effective medication regimen, should the existence of their disorder be a factor in considering who should be the primary caretaker? Would considering that diagnosis be punitive to the litigant for taking charge of their mental health, seeing a mental health provider and receiving a diagnosis, and effectively treating the condition? Would negative consideration of such diagnoses cause litigants to avoid seeking needed medical treatment?
Family law, as a profession, can be better educated about these topics. If elected, I would invite local mental health professionals to come speak at brown bag luncheons in the court to educate court staff, judges, and attorneys about the various mental health issues we see in our daily practice. This would enable us as a profession to provide better service, and more just rulings, for the people of Harris county.
We need to further limit the amounts that can be contributed by attorneys practicing before our courts. No one should leave a courtroom with the intention of pulling up a finance report for to see if political contributions possibly played a role in the outcome of the case.
I will not accept more than $500, or 1/10th the contribution limit, from any attorney who practices before the court. This limit will continue to apply to any donations made after the election results are announced in November.
If you practice in the 245th and would like to provide more in support than my $500 limit, I would encourage you to write the difference to Harris County Democratic Party to assist in their efforts to get out the vote.
Appointment of a primary parent with the exclusive right to designate the residence of a child, and the award of a Standard Possession Order to the non-custodial parent, is presumed to be in the best interest of the child under the Texas Family Code.
Often in our courts, a Standard Possession Order is the end-all and be-all of possession schedules, even when it isn't the best solution for a family. Some courts resist 50-50 possession schedules agreed upon by the parents and refuse to sign orders incorporating those agreements, forcing the parties to attend mediation (at additional inconvenience and expense) to force the court's hand in signing off on those terms. Other times, the non-custodial parent may have shift work or another type of work schedule that makes a rigid possession schedule inappropriate, especially if the custodial parent will strictly hold the other parent to that possession schedule to deny them time with the child.
The Texas Family Code also states it is presumed to be in the best interest of a child for each parent to have regular access for visitation. Sometimes that takes time, thought, and creativity. Each case should be analyzed on its own facts to determine if the presumption of a Standard Possession Order is best for that family.
Prove-up By Affidavit
Docket call takes 30-45 minutes each day, 5 days per week. That is over 2.5 hours per week, or enough to hear one more emergency hearing, Temporary Orders, or other case. It's also $100-300 or more of an attorney's billable time for a litigant.
My idea for the court is to eliminate docket call and have litigants sign in on the docket as they arrive and provide a time estimate.
The 280th District Court is a family court assigned to give preferential treatment to protective orders, not the exclusive jurisdiction to hear them.
Sections 85.062 and 85.062 of the Texas Family Code give litigants the option of filing their application for a protective order in their divorce or custody case. This makes sense as the issues to be heard in the application are often the same to be heard by the court in the divorce or custody case. There's also an added benefit of being able to avoid the burden of personally serving the respondent (if no ex parte emergency relief is being granted) unlike if the applicant is made to initiate a new suit in a different court.
The court where a divorce or custody case is pending should accept and hear these cases absent the court's docket absolutely not allowing the court to hear that matter within the required 14 days. Litigants should not have to litigate the same set of facts twice in two separate courts and, in cases where alleged abuse is found to have occurred, it is insensitive to the applicant to make him or her have to face and prosecute those facts against the respondent twice (in the protective order hearing in the 280th and again in the divorce or custody case).
Online Case Docketing
Our courts need to enter the 21st Century. Attorneys or pro se litigants should not have to file a motion, contact the court clerk or coordinator for available dates, select a date, then file and serve a notice of hearing for that date. Instead, the court's docket should be available online, with the court's clerks and coordinator controlling which blocks of time on specific days are open for hearing to allow the attorney or litigant to register and reserve the needed block of time on the chosen date with the court; that attorney or litigant can then include in the first filing the notice of hearing and save on the hassle and expense of serving subsequent notice.
This would not only save litigants time or attorney's fees, it would also allow for more efficient management of the court's docket. For instance, if someone had a 20 minute hearing, they could book an open 30 minute window from 1:30 to 2:00 p.m. on a date and include notice for that date and time in their filing. The attorneys (and parties, if testimony will be presented) could then appear at that time to be heard rather than showing up in the morning to sit through docket call, and then pay to wait with their respective attorneys, until they could be heard (which might still not have been until 1:30).
This will give litigants a better idea of whether they can just take a half-day off from work, and save everyone a lot of time and money not waiting through a daily queue. I would lobby the Harris County District Clerk's office to consider and implement this idea, and work with that office to help make it a useful improvement to the legal system in Harris County.
Prove-ups can take 45-75 minutes each day, 5 days per week. That averages 5 hours per week, or enough to hear a final trial for divorce or a custody dispute.
With very limited exception, prove-up of an agreed decree or order is something that can, and should, be handled by affidavit. Allowing a litigant's attorney to e-file as an exhibit to a decree or order an affidavit proving-up the relief requested in the order can save 1-2 hours of billable time, or $400-1,200, for litigants.
Allowing a pro se (unrepresented) litigant to submit an affidavit with his or her proposed order would save that person the anxiety of appearing before the bench unnecessarily, and attorney's fees for represented parties who are waiting to be reached by the court.
If a litigant's order has a problem, they can be informed they need to fix that problem, or appear to discuss, before the court will render on the order. A few bad apples in the bunch shouldn't be justification for making everyone else wait, and pay to wait, while those agreed orders are tendered to the court for signing.
appearances by teleconference
It's 2018. It's time we start taking advantage of technology in our courts to minimize the inconvenience and expense of litigation.
Local Rule 3.4 of the Judicial District Courts of Harris County, Texas, Family Trial Division, reads: "Use of telephone conferences between judges or associate judges and all attorneys in a case is encouraged for non-evidentiary matters. Telephone conferences shall be scheduled through the court coordinator."
This almost never happens. I have had the pleasure of experiencing this once in my career.
There is no reason that non-evidentiary hearings could not occur solely by teleconference. A block of time could be set aside each week on a specific day where these would be set, and a queue could be created where attorneys would join the court by teleconference to present their matter to the court. This would allow attorneys to be productive on other matters back at their offices and save litigants a significant amount of legal fees over the course of their case that, by and large, are spent having the attorney wait in court to present or respond to a brief motion.