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Thomas James Daley
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Thomas Daley’s Answers

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  • Will the judge do something about her telling my daughter stuff? Do I have chance for primary custody?

    I am currently going through custody modification. I was asking for extended weekend's with my daughter who is 5 but the mother won't agree unless I pay medicaid instead of private insurance. We got into an argument and her boyfriend threatened me...

    Thomas’s Answer

    I'm sorry that the mother is placing your child in the middle of your conflict.

    If private health insurance is available to you at reasonable cost (less than 9% of your gross income), then your child has to be on private insurance. The theory is that the Texas tax payers should not have to pay for insurance for someone who has access to private insurance. At trial, I could point out how the mother is using possession time with your child as leverage to get out of paying out of pocket medical expenses for the child. (That's the only reason I could imagine why someone prefers Medicaid.)

    If your child sees a counselor and has told the counselor that her mom talks badly about you, you can use the counselor as a witness at trial. If mom has even a bad attorney, it will be almost impossible for you to tell the judge what YOU have heard the child say...it's hearsay. There is an exception for counselors.

    To modify the order, you have to allege that there has been a material and substantial change of circumstances involving you, the mom, or your child since the judge signed the current order. You also have to allege that the modification you are requesting is in the child's best interest. If you child is over 12 years old, you can also allege that she will tell the judge that she wants to live primarily with you.

    A material and substantial change in circumstances can be a slippery thing to try to prove. Generally, it means that there has been a significant change that could not have been foreseen at the time the current order was signed. Perhaps facts surrounding your child's school performance would prove that fact. If mother was not working and on government assistance at the time the current order was signed, then her continuing to refuse to work and continuing to stay on government assistance is not a change in circumstances.

    Once you prove that there has been a material and substantial change in circumstances, you have to prove that the change you are seeking is in the child's best interest. Best interest is another evasive concept. The courts in Texas have adopted some factors called the Holley factors that provide some guidance. A simple but effective way to think about "best interest" in the context of a modification is to focus on proving how the modification you are requesting will result in positive change for your child.

    Many times, people try to fight custody battles using the doctrine of comparative slime and by that I mean that they try to prove to the judge what a horrible person the other parent is and what a great person they are. That's just not legally interesting, by itself. You have to show how the change you are requesting will make your child's life better from the time she gets up in the morning until she goes to bed in the evening. Walk the judge through it hour by hour, so to speak.

    If you can prove a material and substantial change in circumstances and that the requested modification will result in positive change for the child, you have the basis for winning a modification case.

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  • Can a dad get primary custody?

    We have joint custody. Mother refuses to work and wants to remain in govt. Assistance. I provide child support and want to provide medical insurance, but she refuses to use it. She just had another child and I feel my daughter needs attention sinc...

    Thomas’s Answer

    Yes, a father can get primary managing conservatorship of his child.

    You already have an order in place, so you would need to modify that order. To modify the order, you have to file a Petition to Modify the Parent-Child Relationship and allege that there has been a material and substantial change of circumstances involving you, the mom, or your child since the judge signed the current order. You also have to allege that the modification you are requesting is in the child's best interest. If you child is over 12 years old, you can also allege that she will tell the judge that she wants to live primarily with you.

    A material and substantial change in circumstances can be a slippery thing to try to prove. Generally, it means that there has been a significant change that could not have been foreseen at the time the current order was signed. Perhaps facts surrounding your child's school performance would prove that fact. If mother was not working and on government assistance at the time the current order was signed, then her continuing to refuse to work and continuing to stay on government assistance is not a change in circumstances.

    Once you prove that there has been a material and substantial change in circumstances, you have to prove that the change you are seeking is in the child's best interest. Best interest is another evasive concept. The courts in Texas have adopted some factors called the Holley factors that provide some guidance. A simple but effective way to think about "best interest" in the context of a modification is to focus on proving how the modification you are requesting will result in positive change for your child.

    If you can prove a material and substantial change in circumstances and that the requested modification will result in positive change for the child, you have the basis for winning a modification case.

    Good luck!!

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  • Can you still marry someone while they are in jail ?

    My friend has a fiancé that she was with for 2 years they planned on marrying. Unfortunately he's been in county jail.

    Thomas’s Answer

    Texas requires that both parties be present at a formal marriage ceremony. However, a 2014 news report stated that TDC was going to permit prisoners to marry during a visit so long as certain conditions were met. I've included a link below. I can't vouch for the accuracy of the TDC report because the issue has never come up in my practice. Good luck!!

    http://gritsforbreakfast.blogspot.com/2014/11/tdcj-plans-to-let-inmate-marriages.html

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  • Should I still take my ex to court?

    I was with my exgirlfriend for 7 years on and off. and while we were together I was the stay at home parent to my daughter. fast forward to 2012 we broke up and she took me to court for child support. now at that time I was living with my mother,...

    Thomas’s Answer

    Yes. Go forward with the contempt hearing. If you let this one slide, you'll be kicking yourself in 2 years when she finds another reason to withhold visitation. You should also seek an order modifying the parent-child relationship so that you are primary and she pays child support to you. Based on your facts, I am not positive you can win that argument, but with her withholding visits, you do have a colorable argument.

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  • Will my husband have to pay spousal maintenance?

    My husband has decided to file for divorce after being married 3yrs. He refuses to go to marital counseling. Other than the car we purchased together and some furniture, we do don't have any other assets. There is also not custody agreement that w...

    Thomas’s Answer

    You are not entitled to court-ordered spousal maintenance. He could agree to contractual maintenance, but you would need to secure payment through an owelty lien or something like that because it would not be enforceable by contempt.

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  • What constitutes "harassment" in a civil matter? How do I make my ex stop attacking me using the court system?

    My ex girlfriend and I share a child. She is constantly starting drama and taking me to court for random things, in fact she filed for a divorce based on "common law" and we were never married!! She rarely allows me visitation and if she does let ...

    Thomas’s Answer

    Her petition to modify is a perfect avenue for you to address this. File a counterpetition to modify and ask to become primary. Organize your arguments according to the Holly case. Get court-admissible copies of police incident reports, CPS investigation outcomes, etc. You might really reverse your fortunes on this case.

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  • Can my Div. Decree be reviewed & this omission corrected? Should I just sign? What are my rights with omissions in final docs?

    Received my Divorce Decree then QUDRO a year later Dec 2015. Student Loans in amount of $100k omitted from docs although they were qualified as marital debt throughout divorce proceedings. Only my signature is on these loans as wife had bad credi...

    Thomas’s Answer

    If you had a trial on this matter OR there is a signed Mediated Settlement Agreement that purports to cover all issues, then it probably is "set in stone", so to speak. If the divorce decree is being drafted based on a Rule 11 agreement or other informal settlement, then it is probably not "set in stone." It just depends on how you got where you are.

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  • Will I go to jail if I leave and go to my friends house can you please help me?

    I am 17 and my parents told me that I can leave then when told my dad he said that he will report me as a runaway can they do that if he told me to leave will i go to jail if i leave and go to my friends house can you please help me?

    Thomas’s Answer

    If there is a court order (say from a divorce or child support case) that says where you are supposed to be, you can't leave until you are 18, unless you have your parents' permission.

    If there is no court order in place, then you fall under the juvenile justice system and under that system, as long as your parents know where you are, law enforcement is not permitted to forcibly return you to your parents once you turn 17.

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  • How long do I have to wait on the NCP during pick up?

    The NCP in my family is constantly late to pick up. We usually ask them when they want to pick up the kiddos on their Friday's (CO says 6) to attempt to be flexible, but lately they're waiting to respond until we're already halfway to the meeting ...

    Thomas’s Answer

    I would wait 20 minutes and then call it a miss. If you don't have other plans and NCP then wants to come to your place to pick the children up, that would be fine. If you have problems like this, make sure you take a witness with you to the exchange and keep a log of the dates and times. What you don't want is for NCP to prevail on an enforcement motion saying that you are denying him/her court-ordered visitation. It doesn't sound likely, given your facts, but keep records and you'll be ready.

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  • Can I take our 4 children and moveto a different state?

    Cps was called by ex-wife with false allegations we've done the investigation, received the findings. they recommend fbss no court order we declined.

    Thomas’s Answer

    If you went through a custody battle, there is a court order regarding the child and that order probably, but not necessarily, defines where the child must live by placing a geographic restriction on the primary residence of the child. If that's the case, then you probably cannot move to another state with the child for whom the order applies.

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