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RayAnswers, Lawyer
Category: Family Law
Satisfied Customers: 38855
Experience:  30 years as a family law lawyer .
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My divorce was final in Texas back in April of 16. My ex

Customer Question

My divorce was final in Texas back in April of 16. My ex then started dating an attourny that was not involved with the original divorce. He filed on her behalf to modify the original. I am not sure how to possibly defend myself when my ex is in the bedroom with her attorney? Is there any ethics rule that prevents one-party financially outweighing the other party? Need some clarification on how I need to go about defending myself ? The original decree States shared custody 50/50, and now she's going for full custody with child support? y
JA: Because family law varies from place to place, can you tell me what state this is in?
Customer: Texas
JA: Have you talked to a lawyer yet?
Customer: Yes. But he stated that we should not pursue and that this is not his area of expertise? He has not turned in paperwork correctly, which in turn put me in violation. I filed court-ordered documentation myself. This is a small North Texas County in which My Ex's attorney is very experienced in this field
JA: Anything else you want the lawyer to know before I connect you?
Customer: Other day and they left my kids with a sitter. Where are original decree States a morality clause where no one of the opposite sex Canby present after the hours of 10 p.m. and before the hours of 6 a.m. . Is she not in violation by leaving the country for a week? There are three kids involved ages 15,11, & 4? If my attorney is not experienced or intimidated by the other attorney do you have any advice on how to bring in another representative? Still would not be able to compete financially with her lawyer/lover
Submitted: 2 months ago.
Category: Family Law
Expert:  RayAnswers replied 2 months ago.

Hi and welcome to JA. Ray here to help you today.Please bear with me a few moments while I review your question and respond.

Expert:  RayAnswers replied 2 months ago.

You would need to look at the divorce decree to see if she has violated it with travel.If you can show that she is violating the morality clause this is a good point to raise in the custody modification.I would sure consider a new lawyer for you.You have some good facts to dispute this and argue no change in circumstances.And I would raise the issues with her dating her lawyer.Your lawyer can call the lawyer as a witness here if this goes to trial and at least make him testify about whether he spent the night, slept with her, etc.And you are also able to file a complaint with the bar on the lawyer.

Expert:  RayAnswers replied 2 months ago.

You can file a grievance here

https://www.texasbar.com/AM/Template.cfm?Section=File_a_Grievance&Template=/CM/HTMLDisplay.cfm&ContentID=29656

I appreciate the chance to help you tonight and wish you the best here.

If you can positive rate it is much appreciated.Thanks again.

Expert:  RayAnswers replied 2 months ago.

Texas law on modification

FAMILY CODE

TITLE 5. THE PARENT-CHILD RELATIONSHIP AND THE SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP

SUBTITLE B. SUITS AFFECTING THE PARENT-CHILD RELATIONSHIP

CHAPTER 156. MODIFICATION

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 156.001. ORDERS SUBJECT TO MODIFICATION. A court with continuing, exclusive jurisdiction may modify an order that provides for the conservatorship, support, or possession of and access to a child.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.

Sec. 156.002. WHO CAN FILE. (a) A party affected by an order may file a suit for modification in the court with continuing, exclusive jurisdiction.

(b) A person or entity who, at the time of filing, has standing to sue under Chapter 102 may file a suit for modification in the court with continuing, exclusive jurisdiction.

(c) The sibling of a child who is separated from the child because of the actions of the Department of Family and Protective Services may file a suit for modification requesting access to the child in the court with continuing, exclusive jurisdiction.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 1113 (H.B. 1012), Sec. 26, eff. September 1, 2009.

Sec. 156.003. NOTICE. A party whose rights and duties may be affected by a suit for modification is entitled to receive notice by service of citation.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1999, 76th Leg., ch. 178, Sec. 9, eff. Aug. 30, 1999.

Sec. 156.004. PROCEDURE. The Texas Rules of Civil Procedure applicable to the filing of an original lawsuit apply to a suit for modification under this chapter.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.

Sec. 156.005. FRIVOLOUS FILING OF SUIT FOR MODIFICATION. If the court finds that a suit for modification is filed frivolously or is designed to harass a party, the court shall tax attorney's fees as costs against the offending party.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.

Sec. 156.006. TEMPORARY ORDERS. (a) Except as provided by Subsection (b), the court may render a temporary order in a suit for modification.

(b) While a suit for modification is pending, the court may not render a temporary order that has the effect of changing the designation of the person who has the exclusive right to designate the primary residence of the child under the final order unless the temporary order is in the best interest of the child and:

(1) the order is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development;

(2) the person designated in the final order has voluntarily relinquished the primary care and possession of the child for more than six months; or

(3) the child is 12 years of age or older and has expressed to the court in chambers as provided by Section 153.009 the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child.

(b-1) A person who files a motion for a temporary order authorized by Subsection (b)(1) shall execute and attach to the motion an affidavit on the person's personal knowledge or the person's belief based on representations made to the person by a person with personal knowledge that contains facts that support the allegation that the child's present circumstances would significantly impair the child's physical health or emotional development. The court shall deny the relief sought and decline to schedule a hearing on the motion unless the court determines, on the basis of the affidavit, that facts adequate to support the allegation are stated in the affidavit. If the court determines that the facts stated are adequate to support the allegation, the court shall set a time and place for the hearing.

(c) Subsection (b)(2) does not apply to a conservator who has the exclusive right to designate the primary residence of the child and who has temporarily relinquished the primary care and possession of the child to another person during the conservator's military deployment, military mobilization, or temporary military duty, as those terms are defined by Section 153.701.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1999, 76th Leg., ch. 1390, Sec. 15, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1289, Sec. 3, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1036, Sec. 18, eff. Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch. 916 (H.B. 260), Sec. 17, eff. June 18, 2005.

Acts 2009, 81st Leg., R.S., Ch. 727 (S.B. 279), Sec. 2, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch. 1113 (H.B. 1012), Sec. 27, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch. 1118 (H.B. 1151), Sec. 2, eff. September 1, 2009.

Acts 2015, 84th Leg., R.S., Ch. 397 (H.B. 1500), Sec. 1, eff. September 1, 2015.

SUBCHAPTER B. MODIFICATION OF CONSERVATORSHIP, POSSESSION AND ACCESS, OR DETERMINATION OF RESIDENCE

Sec. 156.101. GROUNDS FOR MODIFICATION OF ORDER ESTABLISHING CONSERVATORSHIP OR POSSESSION AND ACCESS. (a) The court may modify an order that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child if modification would be in the best interest of the child and:

(1) the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the earlier of:

(A) the date of the rendition of the order; or

(B) the date of the signing of a mediated or collaborative law settlement agreement on which the order is based;

(2) the child is at least 12 years of age and has expressed to the court in chambers as provided by Section 153.009 the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child; or

(3) the conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months.

(b) Subsection (a)(3) does not apply to a conservator who has the exclusive right to designate the primary residence of the child and who has temporarily relinquished the primary care and possession of the child to another person during the conservator's military deployment, military mobilization, or temporary military duty, as those terms are defined by Section 153.701.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 47, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 1390, Sec. 16, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1289, Sec. 5, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1036, Sec. 19, eff. Sept. 1, 2003.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 727 (S.B. 279), Sec. 3, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch. 1113 (H.B. 1012), Sec. 28, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch. 1118 (H.B. 1151), Sec. 3, eff. September 1, 2009.

Sec. 156.102. MODIFICATION OF EXCLUSIVE RIGHT TO DETERMINE PRIMARY RESIDENCE OF CHILD WITHIN ONE YEAR OF ORDER. (a) If a suit seeking to modify the designation of the person having the exclusive right to designate the primary residence of a child is filed not later than one year after the earlier of the date of the rendition of the order or the date of the signing of a mediated or collaborative law settlement agreement on which the order is based, the person filing the suit shall execute and attach an affidavit as provided by Subsection (b).

(b) The affidavit must contain, along with supporting facts, at least one of the following allegations:

(1) that the child's present environment may endanger the child's physical health or significantly impair the child's emotional development;

(2) that the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interest of the child; or

(3) that the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least six months and the modification is in the best interest of the child.

(c) The court shall deny the relief sought and refuse to schedule a hearing for modification under this section unless the court determines, on the basis of the affidavit, that facts adequate to support an allegation listed in Subsection (b) are stated in the affidavit. If the court determines that the facts stated are adequate to support an allegation, the court shall set a time and place for the hearing.

(d) Subsection (b)(3) does not apply to a person who has the exclusive right to designate the primary residence of the child and who has temporarily relinquished the primary care and possession of the child to another person during the conservator's military deployment, military mobilization, or temporary military duty, as those terms are defined by Section 153.701.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 2001, 77th Leg., ch. 1289, Sec. 6, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1036, Sec. 20, eff. Sept. 1, 2003.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 727 (S.B. 279), Sec. 4, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch. 1113 (H.B. 1012), Sec. 29, eff. September 1, 2009.

Sec. 156.103. INCREASED EXPENSES BECAUSE OF CHANGE OF RESIDENCE. (a) If a change of residence results in increased expenses for a party having possession of or access to a child, the court may render appropriate orders to allocate those increased expenses on a fair and equitable basis, taking into account the cause of the increased expenses and the best interest of the child.

(b) The payment of increased expenses by the party whose residence is changed is rebuttably presumed to be in the best interest of the child.

(c) The court may render an order without regard to whether another change in the terms and conditions for the possession of or access to the child is made.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 2001, 77th Leg., ch. 1289, Sec. 7, eff. Sept. 1, 2001.

Sec. 156.104. MODIFICATION OF ORDER ON CONVICTION FOR CHILD ABUSE; PENALTY. (a) Except as provided by Section(###) ###-####/a>, the conviction of a conservator for an offense under Section 21.02, Penal Code, or the conviction of a conservator or an order deferring adjudication with regard to the conservator, for an offense involving the abuse of a child under Section 21.11, 22.011, or 22.021, Penal Code, is a material and substantial change of circumstances sufficient to justify a temporary order and modification of an existing court order or portion of a decree that provides for the appointment of a conservator or that sets the terms and conditions of conservatorship or for the possession of or access to a child.

(b) A person commits an offense if the person files a suit to modify an order or portion of a decree based on the grounds permitted under Subsection (a) and the person knows that the person against whom the motion is filed has not been convicted of an offense, or received deferred adjudication for an offense, under Section 21.02, 21.11, 22.011, or 22.021, Penal Code. An offense under this subsection is a Class B misdemeanor.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 2001, 77th Leg., ch. 1289, Sec. 8, eff. Sept. 1, 2001.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 593 (H.B. 8), Sec. 3.29, eff. September 1, 2007.

Sec.(###) ###-#### MODIFICATION OF ORDER ON CONVICTION FOR FAMILY VIOLENCE. (a) The conviction or an order deferring adjudication of a person who is a possessory conservator or a sole or joint managing conservator for an offense involving family violence is a material and substantial change of circumstances sufficient to justify a temporary order and modification of an existing court order or portion of a decree that provides for the appointment of a conservator or that sets the terms and conditions of conservatorship or for the possession of or access to a child to conform the order to the requirements of Section 153.004(d).

(b) A person commits an offense if the person files a suit to modify an order or portion of a decree based on the grounds permitted under Subsection (a) and the person knows that the person against whom the motion is filed has not been convicted of an offense, or received deferred adjudication for an offense, involving family violence. An offense under this subsection is a Class B misdemeanor.

Added by Acts 2001, 77th Leg., ch. 1289, Sec. 9, eff. Sept. 1, 2001.

Sec. 156.105. MODIFICATION OF ORDER BASED ON MILITARY DUTY. The military duty of a conservator who is ordered to military deployment, military mobilization, or temporary military duty, as those terms are defined by Section 153.701, does not by itself constitute a material and substantial change of circumstances sufficient to justify a modification of an existing court order or portion of a decree that sets the terms and conditions for the possession of or access to a child except that the court may render a temporary order under Subchapter L, Chapter 153.

Added by Acts 2005, 79th Leg., Ch. 916 (H.B. 260), Sec. 18, eff. June 18, 2005.