Skip to main content
Dana Joseph Stewart

Dana Stewart’s Answers

63 total



    Dana’s Answer

    I agreed with the previous answer - setting the matter for trial usually puts pressure on the other side. Also, one thing to keep in mind, if the parties reached an agreement/settlment, through mediation for example, then you can file a Motion to Enter. This bascially means that the parties settled, but one side has not yet signed the order that was drafted from the settlement..

    See question 
  • If a 9 year old child is deeply depressed and has a strong fascination with guns, is that a reason to call CPS?

    the mother is possibly abusive and on drugs.

    Dana’s Answer

    I am not sure how much CPS is going to be able to help. In Texas, where I practice law, CPS will investigate claims of abuse/neglect however, unless the situation is obviously bad, not much will happen. Some people are very good at hiding skeletons in the closet. CPS can make someone take a drug test. But, in Texas, they use a cottonswab in the person's mouth and the reliability of the tests are not great.

    My advice would be to get the child to a counselor. Hopefully the counselor will be able to make the child feel comfortable and eventually, the child will open up regarding issues with the mother. The counselor, at a minimum, will help the child sort through some things. And, there is a chance that things the mother is doing will be exposed during the counseling sessions. I have had cases just like this and the counselor ended up being a crucial witness in court. It is always nice to have a neutral third party as a witness since they appear more credible to a judge than someone who is related to the parties.

    However, if you feel the situation is so bad that you cannot wait for the child to go through some counseling, then you might want to consider filing emergency motion/temporary restraining order to get possession of the child/keep the child away from the mom. I would consult with an attorney in your jurisdiction to see what the best options are. Best of luck!

    See question 
  • Can i get the child support lowered?

    If i get my daughter everyday from 3-6 and her mother picks her up when she gets off at 6 and we rotate weekends. Example, i would get her on a friday and sunday over night and mother gets her saturday and the next weekend we would switch i would ...

    Dana’s Answer

    Please keep in mind that I am licensed attorney in Texas. That being said, I will try to at least give you some advice.

    In Texas, the courts can take several factors into consideration when setting a child support amount. One of those factors is that amount of time the obligor (the person paying child support) spends with the child. For example, I have had cases where the parties had a 50/50 possession schedule and therefore, no one paid child support. However, I have also had cases where there was a 50/50 possession schedule and one party still paid child support - but it was a reduced amount compared to the state guidelines.

    All family law cases are very fact specific, so it's difficult to give you a prediction without knowing more of the facts. My advice is to contact an attorney licensed in your jurisdiction to see what options you have. Best of luck!

    See question 
  • Can my ex keep my new girlfriend away from our children?

    My ex wife left me over a year ago and now that i have moved on with my life she refusses to let our children around my new girlfriend. My girlfriend and i have been together for 4 months and she was allowed around them when we werent dateing but ...

    Dana’s Answer

    Before I address your question, please note that I practice family law in Texas. I am not familar with the laws of your state. That being said, I hope I can at least give you a little help.

    Sometimes in a divorce decree, there is language that states a party cannot have an unrelated person of the opposite sex spend the night when the children are in that party's possession. So obviously, if your decree has language along those lines, then you need to follow the court order.

    How is your ex dictating what you do with your children during your possession periods?
    Generally speaking, during your times of possession, you are the parent that makes the decisions (assuming your decree does not state otherwise). Therefore, you should be allowed to bring your children around your girlfriend.

    However, if your girlfriend could expose your children to something that would negatively impact them, your ex could have grounds to ask to court to not allow her around your children.

    So, as you can tell, there are a lot of details that are needed before this question can be answered. I suggest that you contact an attorney in your area. Best of luck.

    See question 
  • What can i do with my mom who once refuse to give me my kids back she has no custody she has made a story about her

    having a cps a teacher i know how cps works and their serious about things.they never contacted me at all. today she decided to go drop off my boys, but since i wasnt home she call the cops. what can i do?

    Dana’s Answer

    I cannot tell from your question if you have a court order regarding custody. If you do, and your mother refuses to give you your childing during one of your periods of possession, you should call the police and show them your court order.

    See question 
  • I get every other weekend but because i am religious could i get the kids every sunday for church.

    i would like to take my kids to church every sunday. the ex wife is not religious but i am and i would like for my children to follow my faith.

    Dana’s Answer

    I am licensed in Texas, so this answer is based on the laws here. I am just trying to give you some information that will hopefully point you in the right direction.

    In Texas, each conservator usually has the right to direct the moral and religious training of the child(ren) during the conservator's possession period. The conservators are also allowed to change their possession schedule without getting the court involved.

    In your case, if your ex wife will agree to give the children to you every Sunday for church, then you don't need to get the court involved. You and your ex can handle it informally. But just keep in mind, that if you do not formally make the changes, then legally, your wife only has to give the children to you per the order in place (thus every other weekend). So if she decided one weekend that she didn't want you to have the children on a Sunday when it was her possession period, there would be nothing you could do about it (until you get the court to formally change the possessory periods).

    I hope this helps. Consult this matter with an attorney licensed in New York. Best of luck.

    See question 
  • Is there a violation of visitation rights?

    During visitation weekends at his father's, are there restrictions as to another person watching my child?

    Dana’s Answer

    Before you read my answer to your question, please keep in mind that I am licensed in Texas, not Wisconsin. However, I would imagine the laws governing this are similar to the laws here. Either way though, consult with an attorney in your area.

    In Texas, unless a judge decides differently, each conservator may designate any competent adult to pick up and return the child. Taking that concept a little further, a conservator can usually leave the child with a babysitter (assuming that the babysitter is competent for the job).

    However, if you have a court order in place, you need to read it very carefully. Your order may have language dealing with the "right of first refusal." Here is an examply of what that is...let's say it's the father's possessory period, but he can't be with the child(ren) because he has to work. If there is language in the order dealing with the right of first refusal, then before the father can find someone to watch the child(ren), he must give the mother the chance to take possession of the child(ren) during the time the father cannot exercise his possession.

    There may also be other restrictions to your particular case, so please consult with an attorney licensed in Wisconsin. Best of luck.

    See question 
  • I have sole custody of my son in NY state.His father lives in fl and wants to take me to court for visitation.can he file there?

    was never married to my sons father and he shows limited interest in keeping contact with son(doesn't call or return calls). I informed my ex that all visits will stop because he continues to speak negatively to my son about me and my family. my s...

    Dana’s Answer

    I am a licensed Texas attorney and I am not familiar with New York and Florida laws. That being said, I think I can still shed a little light on this for you. The court that previously handled your custody suit should retain jurisdiction over the case. So, more than likely, your son's father will have to file his case in that same court.

    In a situation where no court has previously intervened in a custody case, in Texas, then the proper venue to bring a custody suit would be the county where the resides. Although there is not a time requirement that must be met to establish a child's residency in a county, the statutes read that there must be some sense of permanency within a county to become a resident.

    As the laws from state to state can and do vary, your best bet is to search for an attorney in your area that practices family law. Also, try to find one that offers a free consultation. Best of luck.

    See question 
  • How can I go about getting legal primary custody of my daughter from her father? we have joint custody w him as the primary

    I have been divorced for 6 years. When I got divorced I was 22 and had nothing, just wanted out! I had no job, money nothing, so we decided to share custody of our daughter, at the time 4. Since that time I have put myself through school, have ha...

    Dana’s Answer

    In order to obtain what you desire, you will need to file a motion to modify your divorce decree. You can become the primary conservator, but not without getting the court involved. From what you have said, you may have a legitimate claim to substantiate your desire to become the primary conservator. Speak with an attorney in your area so that you can discuss the situation in detail. Best of luck.

    See question 
  • In NY how can I avoid my son's father from gaining Joint Legal Custody?Any way to avoid him being recognized legally as the dad?

    Hello, I am the unwed mom of a 4.5 month old baby boy whose father I did not name on the birth certificate for various reasons (we are not in a relationship, he is emotionally unstable, etc.). The father is now taking me to court to 1) establish ...

    Dana’s Answer

    Assuming he is the father, once paternity is established, your son's father is going to have legal rights and duties to your son (such as the right of possession and the duty of support) - regardless of his lack of citizenship. Under Texas law, most parents are granted joint custody. In your case, with the father being involved in the son's life, then there is a good chance that the two of you will be awared joint custody. In order to preclude someone for obtaining custody rights, the court must find that the parent is "unfit" (such as a drug addict, abusive, etc).

    Since I am not licensed in NY, I advise you to speak with an attorney in your area. Best of luck.

    See question