Alex Hunt:
Welcome back to The Texas Family Lawyer Podcast. Today I am joined by attorney David Adams. Welcome back, David.
David Adams:
Thank you.
Alex Hunt:
All right, so today we're going to do something a little bit different. We usually will handle a particular topic in Texas family law, but we've gotten a number of questions from listeners or viewers that don't really fit into a particular topic area and they're not quite large enough to be an entire podcast. So we have compiled all of them into seven burning questions that our clients or our viewers or our listeners have. And we're just going to run down the list, and we're going to jump right into it. So number one, is it illegal to spy on your spouse in Texas? What do you say, David?
David Adams:
Is it illegal to spy on your spouse? Well, like a lot of things in the law, it probably depends on how we define spy. Texas is somewhat famously a one-party consent recording state, which means that you're allowed to record either audio or visual recordings of parties to a conversation as long as one of the parties to that conversation consents. So if you're recording a conversation between you and your spouse and you consent to that recording, that's okay. What you can't do is potentially record a conversation between two other people when you are not a party to that conversation. Now I know there have been some legislative changes in the last couple of years around tracking devices.
Alex Hunt:
Well, before you get to that, let me ask you about the conversations, because a common situation that sometimes we'll deal with is a recording device is placed with the child. And then the child goes to the other spouse or the other parent's home and they'll say, "Well, the child is an extension of me, and so it's as if I were there." Would you recommend doing that?
David Adams:
My advice to clients would be don't do that. And the reason I would say that is because I think that's a bit of a gray area in the law, and I think the particular judge that you end up in front of could probably go either way on that one, because it is true that as a parent to a child you're allowed to consent essentially for that child to do a variety of different things. So could a judge look at that situation and say, "The other parent is an extension of the child, and so they're consenting to the conversation and even though they weren't there, it's okay?" That's possible, but I would definitely not encourage clients to do that.
Alex Hunt:
All right, so let's shift to tracking devices.
David Adams:
Especially today, air tags and different devices are everywhere. A lot of people use that kind of stuff. A lot of people sometimes have tracking devices, they don't really think about it, like Life360 applications on their phones. There is new law within the last couple of years essentially saying that you're not allowed to track other people without their consent. So one of the things that will popularly come up in a divorce is before you file for divorce, one spouse might think the other spouse is cheating. They want to confirm or deny that, and so they might put an air tag on a spouse's vehicle to see where they're going. My understanding, and again this is a criminal statute, I'm not a criminal lawyer, but my understanding of the criminal statute around this is that that kind of behavior without the other spouse's consent is potentially criminal and illegal.
Alex Hunt:
And that's the caveat to all of this is that if you've got consent, say you've got two spouses, for example, my wife and I, we both have Apple devices, and so we have our Find My, so that way we can see where we are. If you've got consent, that's totally fine. This is simply when there is no consent, and usually when you're in the middle of a divorce or your marriage is breaking down, there's typically not consent anymore. And I wouldn't rely on your spouse affirmatively telling you in writing or verbally, "I no longer consent to this anymore." There should be an implied understanding that if you have gone from a happy couple where there was consent to a divorcing couple, that the consent's probably not there anymore, and so to err on the side of caution.
And there is a difference between the Life360 app and things like placing a magnetic tracking device on the bottom of a vehicle or something like that. That is a more egregious display of spying on your spouse that I think the judge is going to treat more harshly. And like you said, these are criminal statutes, they're not in the family code, but there are both state and federal criminal laws that are at play here. So before you think about doing something like this, please run it by your lawyer so that way you don't run afoul of any federal or state law.
David Adams:
And I would also say if you are somebody out there who is contemplating divorce or might think divorce is on the horizon and you have done this already, my advice to you would be don't tell your spouse that, at least not yet. I'll have a situation where a client might come to me and say, "I have all this information that I've recorded," or "I've tracked my spouse, I confronted them, didn't believe them and so here I am." Well, now your spouse knows that you might potentially have done something criminal, and if you do file for divorce, now they can use that as leverage against you to say, "Hey, if you come after me for whatever in this divorce, I'm going to pursue criminal charges against you for what you already told me that you did." So I would definitely say if you've done that already, to the extent that you can, as you said, have that conversation with your lawyer before you ever have that conversation or let your other spouse know that you might have done something like that.
Alex Hunt:
And the bottom line is when in doubt don't do it. And when you do come to a lawyer, we have professionals, private investigators that we work with, that if you need to figure something out, you need to find something out, you need to follow somebody, don't do it yourself. There's a process for this, come and talk to us, and we'll walk you through it.
David Adams:
Absolutely.
Alex Hunt:
Next question, out-of-state travel, if you have joint custody, do I need my co-parent's permission to travel out of state?
David Adams:
Unless there's something special in your decree, I have very infrequently seen custody orders or decrees of divorce where there's a provision that says that you've got to notify the other parent in order to travel out of state. Now most decrees will say that you have to notify the other parent if you're going to travel out of the country. That's a very common provision, and often to travel out of the country, the federal government requires you, in order to get on a plane or sometimes even on a cruise ship, to have special forms with the other parent's consent, whether it's in your decree or not. But essentially you want to look at your decree. If there's not something specific in the order that says that you've got to do that. Now if it says, "If you travel out of the state, you've got to let the other parent know," then well that's exactly what you got to do. But that's not a standard provision.
Alex Hunt:
And bottom line, always look at your decree. Your decree always governs. We're just talking about standard provisions. And always talk to your lawyer, and they'll make sure that they can sit you straight and let you know.
David Adams:
Absolutely. There are a lot of times injunctions that get filed at the beginning of the case that some counties, I can think of a local county here, Fort Bend County, where there's a provision in there that says that you're not allowed to change the child's primary residence outside the state of Texas while the lawsuit is pending, which is not the same thing as taking your kid on a Spring Break vacation.
Alex Hunt:
Going to Disney World is different from taking your child to Florida to move there, and that's different than going to Disney World Paris. All of those things are going to have different provisions associated with them. All right, next question, what is an amicus attorney?
David Adams:
So an amicus attorney is an attorney that is essentially appointed by the court to represent the best interest of the child. There are some other types of attorneys such as an ad litem who literally represent the child in these situations, but that's not what an attorney actually does. They truly are there to represent quote-unquote the best interest of the child. I think a lot of judges look at amicus attorneys like they are somewhat an extension of the court, a more neutral third party who can go in and, again, try to ascertain the best interest of the child as opposed to the lawyers who are already on a case who are going to be inherently biased towards their clients.
One thing I think people don't understand about the amicus attorney which is true is that an amicus attorney though is just an attorney. And so the only things that they can in practice do that's really going to change the outcome of a case if your case ends up in trial is they're going to have the ability to call witnesses. They're going to have the ability to examine those witnesses on the stand. They're going to have the ability to offer evidence. They're going to have the ability to make a closing argument. But that's it. They don't get to write a report like in, say, a custody evaluation. They don't get to meet privately with the judge, or at least they shouldn't, and have a conversation about that, "Here's what I think." They're just another lawyer that's there hopefully to represent the best interest of the child.
Alex Hunt:
And that closing argument, that's going to really be the only time that an amicus attorney, if you've got a trial, is going to be able to give an indication of what they feel, whether the child should be placed with one parent or the other or there should be some sort of special provisions. Otherwise, the way that they can convey their message during testimony is just through asking questions. And so maybe the jury or the judge can get an idea of where they're coming from and what their thought process is, depending on the types of questions they're asking, whether they're more friendly to a witness or they're more acrimonious towards them. But an amicus attorney will have the ability to go and visit with the child, but it isn't like they can visit with the child and then report back to the judge.
David Adams:
That's exactly right.
Alex Hunt:
"This is what I talked to the kid about. This is what the kids need." So I think that's a common misconception that a lot of our clients have. The other thing, we talk about this quite frequently when we're staffing cases, is bringing on an amicus attorney can be risky. It lessens and mitigates the risk when you know who the amicus attorney is going to be, but if you're just going to the court and saying, "We need an amicus attorney, we can't agree on who it's going to be," you don't know who that person's going to be. You don't know their skill set. You don't know how much time they can commit to the case. You don't know if they're going to be any good or not. You don't know if they've got a certain bias. And so you're taking on a big risk because you're letting go as the trial attorney of a little bit of control of the case. You're interjecting a third attorney that might have a different feeling, and you might end up at trial on two against one, your spouse and the amicus attorney versus you.
But like all risk, you might end up on the side of the amicus attorney and then you're two against one and the other side. And you might also have an amicus attorney that plays it a little bit more down the middle. Some of the benefits of an amicus attorney are that it allows the child to feel like they have some sort of voice in the process because they're able to talk to somebody who should be on their side. Even though they are tasked with representing the best interest of the child, they should be listening to the child and voicing their concerns. And a lot of times an amicus attorney is tasked by the court with not just recommending what's best for the child but trying to reach an out-of-court agreement.
David Adams:
I was just about to say, I think one of the biggest hopefully roles they'll play is in settlement. I think it's usually pretty helpful at mediation for final orders or leading up to mediation for final orders for the amicus to be able to sit down and tell one of the parties, "Look, here's which way I'm leaning," and put some pressure on them to understand, to the point that you made earlier that look, if we show up at trial, this is essentially going to be a two-against-one. I'm more on mom's side, or I'm more on dad's side, or here's what I think is in the best interest of your child. And that can be powerful.
Alex Hunt:
Right. All right, very good. Next question is your spouse in a divorce, your ex-spouse is keeping the car, but your name is on the loan for that vehicle, and how do you get their name off? Talk a little bit about this in the context of a house. Typically, if we have a house that's in both of the parties' names and just one or both of the parties have their name on the mortgage, say the wife is keeping the house, the mortgage, the husband has his name on it, there are certain documents that we can file in the real property records to make it clear that the wife is assuming that mortgage. And she has an obligation to pay, and if she doesn't, then the husband, can go and foreclose on the house and sell the house and protect his property interest, protect his credit if she's not paying the mortgage. Those protections don't exist with regard to vehicles.
And so my advice is always if you are concerned that the person who is keeping the vehicle is not going to pay the loan that's in your name, you've got to get some sort of agreement that they're going to either sell that vehicle or they've got to refinance it and get your name off of it, because you just don't have the same protections and if they don't pay it, you're kind of out of luck. The other thing to consider too is that if you are going to make a big purchase later or you need to buy a house and you need to get a mortgage, debt-to-income ratio is something that loan companies and mortgage companies will consider. Even though your ex-spouse has that vehicle and they're paying the note on it, it's still on your credit because it's in your name, and so it's going to count towards your debt-to-income ratio. It could mean that if you're on the cusp of that debt-to-income ratio for a mortgage you're trying to get or a new car you're trying to buy, that could be the reason that you're not able to get that mortgage.
David Adams:
Agree 100% with everything you just said. My advice would be because of all of that, if you find yourself in this situation, you want to make a provision, which you can put in your final decree, related to this to make it clear that your other spouse has a certain amount of time to refinance the auto loan, and if they don't, I would say average one would probably be 90 days. If they can't do that, then the vehicle's got to be sold. And so that way at least there's a fixed amount of time that's hopefully shorter between when you're going to get divorced and when they've got to refinance that or that'll be out of your name. So to your point, if you want to go get another loan, you'll have that ability.
Alex Hunt:
And a lot of times people will have a page or two of instructions on how a vehicle is going to be sold, and we'll hear from either our client or the other side of why is this so complicated. It's because we deal in this world of worst-case scenarios and so if somebody doesn't refinance, then we need to have a provision for that. And if then they are supposed to sell the vehicle but they don't go and sell the vehicle, we need to have a provision for what happens then. Does the vehicle revert back to the other spouse? And so what we try to do is close as many loopholes as possible. We can't close every possible loophole. There are going to be contingencies that will come up that we can't deal with, but we try to close as many as we possibly can.
David Adams:
That's right. And you know from your practice that when you have the worst-case scenario and you end up in court on what's called an enforcement where you're trying to have a judge force somebody to do something that they didn't do that was in the decree, if that decree is not very, very specific, the judge is going to look at you essentially and say, "I can't help you." And there's nothing worse than taking a client to court who's frustrated because their ex-spouse hasn't followed what essentially they agreed to and because it just wasn't drafted clearly or specifically enough, you can't help them.
Alex Hunt:
And that's why our decrees and our final orders, at our firm at least, are 40, 50 pages is because we're trying to close every loophole. All right, next question, David, what is a geographic restriction with regard to child custody?
David Adams:
So a geographic restriction in regards to child custody normally refers to the geographic area that the person who gets to designate the primary residence of the children, the children have to live inside that area. The way you could think about this is it doesn't always ... I think some people do get this confused. It doesn't necessarily mean that the other parent or what many people call the primary parent, it doesn't mean that they have to live inside the restrictions. So for instance, if you wanted to send your kids to boarding school and not live primarily with them, you could do that as long as the boarding school that you sent them to was within the geographic restriction. So as long as the children live inside that restriction, you're meeting that provision in the decree. Typically, the geographic restriction is the county or the county and the surrounding counties where the divorce or the child custody suit took place. That's the most common geographic restriction, but it could be anything.
Alex Hunt:
So let me give an example for our listeners. So if you live in Katy, say you live in Fort Bend County in Katy, then the typical provision would be you can live in Fort Bend County or counties contiguous to Fort Bend County. Contiguous is a word that we don't hear a lot, but what it means is touching Fort Bend County. And so that would include Harris County and Waller County and Wharton County and Brazoria County, and I'm sure I'm missing one, but any county that's touching Fort Bend County, you can live in there. And that can be an extraordinarily large area, especially where we live, where from one end of Fort Bend County to one end of Harris County can be an hour and a half, two hours drive. So it is a very large area, it's the size of some small states, so it does restrict that primary parent, but it's a pretty big area.
The other thing I wanted to touch on was we'll include what's called lift language sometimes. And that's where, say, you're living in Fort Bend County, and the other parent is living in Fort Bend County, but if the non-primary parent, the non-custodial parent, moves out of Fort Bend County and moves out of the area, then you can move out of Fort Bend County too. That is a fairly standard provision. I think some family lawyers would debate whether it's the default language.
David Adams:
I can tell you from experience I've had to go to court on this issue before, and my interpretation of what's called the Texas Family Law Practice Manual and some decisions that I've gotten in court before, that is not automatically included unless you say specifically in your agreement or in your mediated settlement agreement, "We want to include lift language."
Alex Hunt:
And I'd agree with that.
David Adams:
So I would say, especially if you are the parent who's going to get to establish the primary residence, you want that lift language, because without that lift language, what that means is that the other parent could move to the other side of the country and for whatever reason-
Alex Hunt:
Or the other side of the world.
David Adams:
Right. And they might maybe just to stick it to you, he might want to say, "No, you can't move, and if you try to, I'm going to drag you back to court to force you to stay there." So if you're the primary parent, you definitely want your lift language.
Alex Hunt:
And just to bookend the answer to this question, the reason why this geographic restriction is in place is because the Texas legislature, the House and the Senate, they write the laws, they write the Texas Family Code, and that's what we use to write our divorce decrees, and it's what judges use to interpret the divorce decrees. They have made it very clear in the Texas Family Code that it is the public policy of the state of Texas that parents should live as close together as possible for the best interest of their kids. And the reason why I believe they think that is that you're going to have a better relationship with your child if you are within close proximity. You can go to baseball games and dance recitals, and you can see them every other weekend or every Thursday during the school year. You can have a closer relationship if you're closer together.
David Adams:
Absolutely, and I would tell you this, I personally counsel my clients, if we are on a case and it looks like they're going to end up being the non-primary parent, the smaller we can get that geographic restriction, to me, that's probably one of the biggest wins we could get, if you're the non-primary parent, is to shrink that area as small as possible if you want to be really involved with your kids. Because it's hard to go to baseball games or it's hard to go to pick a kid up from dance practice or even to pick kids up after school if you live 45 minutes away.
Alex Hunt:
Right, absolutely. All right, next question is, how does drug testing impact family law cases? And this is a rather general question, depending on what type of family law case it is. It could be a CPS case, Child Protective Services case. For the purposes of this question, we'll keep it more general and we'll talk about child custody cases and divorce cases, but it can have a pretty serious impact on a case. If there is a concern that there is some sort of substance abuse, whether it be cocaine or marijuana or methamphetamine or some sort of synthetic drug, the judges are going to be very concerned about that, and they're going to want to know about it, and most likely that's going to impact their decision-making in terms of who has primary custody of the child and what your possession times look like.
I will say that it has been my experience that courts will treat marijuana differently than other drugs. So if you are testing positive for a low level of marijuana, that court may say that, note it, and move on. I've had courts that have done that. There are still courts that take that very seriously and tell folks, "You need to stop it. I don't care if you feel like you need this, you're using this medicinally, and it's still illegal. This is still an illegal activity, and I don't like it." It really just depends on the court. And if you're in the Houston area, you've got 10 courts and 20-plus judges in Harris County, and you've got three courts in Fort Bend County. So there's a lot of differences in how the courts are going to interpret this.
If you are testing positive for harder drugs like cocaine or methamphetamine or even some high levels of the more synthetic drugs, judges are going to be a lot more concerned about that. And the way it might impact your case is you might lose primary conservatorship, and the court might say, "I need to make sure that the kids are going to be okay when they're with you, and so I'm going to order supervised visitation," which is one of your family members or your friends is with you at all times when you're with your kids, or you're going to some sort of visitation center, which we have in the greater Houston area, where it's a facility. So not an ideal situation, but 100% they can impact family law cases. And so just be very wary of that.
David Adams:
Agree with everything that you said. I would say that a general rule of thumb is that the larger the population of your county is, probably the greater chance that the judge in your case is probably a little bit more liberal when it comes to marijuana use. And I would say that just generally speaking, the smaller the population in the county that your case is in, probably the more likely that they might be conservative on that issue is just a good general rule of thumb on that. But I would say look, it depends on the facts of your case. Just like alcohol is legal, if two parties come to court and one party says that I'm afraid to leave the kids alone with the other parent because they're passed out drunk every night at 7:00 PM, even though it's legal, that's an issue.
I would say the same thing with marijuana. It probably is a little bit more of a liberal approach to testing positive for marijuana, but the allegation is that you smoke marijuana every day and you got in a car wreck three weeks ago because you weren't paying attention because you were high or you were smoking or you like to smoke at home when the children are there. Those are all going to be pretty serious issues, I think, for any judge when they hear about that kind of stuff.
Alex Hunt:
And even in a CPS case, your view might be, well I'm not smoking marijuana, I'm not doing cocaine when my kids are around and so there's never been any danger to them, but especially more recently the courts have found that just the very fact that you're testing positive for these harder drugs is an indication that abuse is present. They don't have to necessarily link that your drug use is happening when you're around the kids. And so just be aware of that. You mentioned alcohol use or possible abuse, and that can be an issue too, and there's ways that the court will order folks to monitor that.
There's something called Soberlink that we've had clients and opposing parties be ordered to use, which is an app on your phone. It takes a picture, and it uses whatever the algorithm is to make sure, like a face ID, it makes sure that you are the one that's actually blowing into the device that's connected to your phone. And it will give you alerts whenever it wants you to blow into the device, and then that information can be transmitted the opposing party or to the lawyers or to the court, and it's a way to monitor. So all of that to be said, the court can order you to do a drug test. You don't have to do a drug test. The court can't strap you down and make you do the drug test, but it can impact your case, and it will be a presumptive positive if you don't do it.
David Adams:
I was just about to say, right, they're not going to strap you down, but they're going to assume the worst if you don't take it.
Alex Hunt:
So it's a civil case, they can't make you do it, but they will assume the worst, and expect an order to come out of that court, a valid order which they can do, accordingly as though you are positive. So just keep that in mind.
David Adams:
One last thing on that that I've had come up lately has been prescription drugs. I think a lot of people think that if they're taking their prescribed medications and they test positive for those, then they don't have to worry at all. And people ought to understand that with the new technology that we have today, hair follicle tests, nail tests that they can do, they can figure out what the level of those drugs is in your system. And a doctor who's schooled in that area can look at that level and tell if that level is way more than the amount that you should take based on your prescription. So if you're abusing your properly prescribed medications and you think that that's not going to come up, it can, and you ought to be real careful with it.
Alex Hunt:
And the drug testing has gotten so good, and there's providers that the courts use in our area that are so knowledgeable and skilled at doing what they do, but I've had opposing parties, and I've just seen in other cases they'll show up, they're ordered to do a hair follicle test and their entire head is shaved. They will go anywhere in your body, and they will find hair if they can find it. And if there's no hair that's available, they will then cut your nails, and they will do a drug test that way. And if they can't do that, then they can ask the court to do a blood draw. So there's really no cheating the system. If you drink a whole bunch of water to try to dilute your system, you're going to get a diluted sample, and they're going to say, "Got to do it again." You're going to have to keep going back. So they've gotten so good at this, it's just important to know. All right, the last question that we have for today is, what are the different types of subpoenas used in a family lawsuit?
David Adams:
Generally speaking, there's what's called a subpoena duces tecum, which is a subpoena that you can issue to any witness that you want to appear at a hearing or at a trial, either to testify themselves to an issue or to bring an item, usually documents, with them to the hearing. All the other types of subpoenas that aren't duces tecums are essentially a subpoena that commands somebody to either appear often at your law office or at a location to either give testimony on the record, a deposition, often oral deposition. That can be by written question, or it can literally be live like a regular deposition, or just to produce documents or items at a location.
So if we're in a case and we need Chase Bank records and we need them to make sure that they're accurate, we don't really want Chase Bank to show up at our trial to testify that here's the bank records and they're accurate. What we want them to do is just to certify that they're accurate and provide the records to us and to our law office. So we might issue a subpoena to appear at our law office by a date certain to provide those records.
Alex Hunt:
And the worst thing that you can do if you receive a subpoena is to do absolutely nothing at all because there are consequences. If you don't file a subpoena, even if it's just signed by the lawyer or if it's signed by the court, if it's signed by the judge, it doesn't matter. If you just ignore a subpoena and you don't show up, the judge could order you held in contempt, or the judge could order you to be arrested and be brought to court. You do not want that. Willingly come to court. Explain what your objection is. You can even make that objection on the day that this subpoena is due when you're in court, but don't just ignore it. That's a recipe for disaster.
And if you do have a concern with it, we've get folks all the time that they say, "Hey, I can't produce these documents within the next week, can you give me two weeks?" And most of the time, unless there is some type of hearing or reason that we need it sooner than that, we will say yes. Because if we want to get those records and we want them to be complete and accurate, and if we can give an extension, we're going to give it.
So just talk to the lawyer. Most of the time the lawyers are going to be reasonable with regard to that. At least if you call our office, we will be. If we need the records sooner than that, we'll explain it to you, but don't ignore it, and try to talk to folks and get it worked out ahead of time. The other thing is sometimes if we order you to produce some sort of records at a certain type of time and place and you say, "Hey, I can't make it at that time and place," we'll say, "Well, when can you get me the records, and can you sign this form called it business records affidavit? And if you sign off on that, we don't need you to show up anywhere. We don't need you to show up in court. We don't need you to show up in our office. You can just sign that form and get us the records that way." So work with us and don't just ignore a subpoena.
David Adams:
Absolutely. 95% of the time when I issue subpoenas, I'm looking for records, and I just need the entity that makes the records to certify that they're accurate through the business records affidavit, and usually we're flexible on that timeframe. So you're exactly right about reach out to whoever issued the subpoena, and they'll usually work with you.
Alex Hunt:
All right. Well, David, thanks for joining me on our first ever episode where we just took these grab bag burning questions and we answered them. If anybody else has other frequently asked questions, you can go to our website. We've got a resources tab. If you click on the resources tab at the top or you click on the blog at the top, we've got a number of articles with all types of information on family law and estate planning and probate. So go to our website at familylawyerkaty.com. If you'd like to do a consultation or ask some additional questions about your situation to either me or David, you can call us at (832) 315-5494. David leads our office at Hunt Law Firm in League City. I'm the managing attorney based out of the Katy office. I also do consultations in Sugar Land and Cypress. Call us up and we'll be able to help you out. My name's Alex Hunt. For David Adams, thanks for joining us, and until next time, we'll see you then.