San Antonio Lawyer Blog

Interstate child custody cases usually happen when the parents of a child live in different states. The question is how do courts resolve disputes over which parent the child will live with and how and when visitation with the other parent will take place. Most states have adopted uniform laws to help sort out these disputes. Texas has adopted the UCCJEA - the Uniform Child Custody Jurisdiction and Enforcement Act found in Family Code sec.152.001.

The Act provides that Texas courts have initial jurisdiction to determine a child's custody if:
(1) Texas is the "home" state of the child when the child custody case is filed or has been within six months before the action is filed and at least one parent continues to live in Texas.
(2) Another court does not already have jurisdiction (jurisdiction is the legal right to make orders concerning the custody dispute), or had declined to exercise it's jurisdiction and
(a) there is a significant connection to Texas between the child and at least one parent; and, (b) there is substantial evidence in Texas concerning those factors which bear upon the custody determination such as, the child's care, training, protection and personal relationships.

If a court in another state has already made a determination regarding custody which complies with the above portion of the Texas law then the court of that state would have exclusive and continuing jurisdiction and Texas would decline to make orders regarding the child.

In the event its hard to figure out which state should be making and enforcing orders about the custody of a child whose parents are in different states the Texas UCCJEA provides authorization for the courts to communicate with each other in an effort to determine which court should have the power to make, modify and enforce the child custody orders.

As an example, let's say your child is taken out of Texas without your consent by the other parent who claims he or she has the "right" to do that by virtue of the fact that they are the parent of the child. What do you do? Well fortunately under the UCCJEA even though the child has been taken to another state, Texas courts still have jurisdiction to make the initial child custody orders because Texas is still the "home" state of the child because the home state is the state where the child lived within six months before the commencement of any child custody proceeding and you as the other parent still live in the state. A Texas court can grant you custody and then compel the other parent to bring the child back to the state of Texas.

Or, perhaps you've moved to Texas with a child or children and there are no prior orders regarding the children. If there is another parent in another state, that parent can go to a court in his or her state and get order compelling the child or children to return to the "home" state which can make orders regarding the child. If, however, you have been living in Texas for six months and no orders exist in another state, you may go to a Texas court and get a child custody order here.

Continue reading "Interstate Child Custody: How the Texas UCCJEA helps resolve child custody disputes where the child and at least one parent live in different states." »

In the previous four posts I've covered what happens when a child gets arrested for committing a crime in Texas. From pre arrest warning to diversion to deferred prosecution and finally to plea agreement or trial, otherwise known as the adjudication hearing.

So, what happens if your child proceeds to trial and is found to have committed the offense or offenses charged by the prosecution? In Texas Juvenile proceedings are bifurcated into what might be referred to as the guilt phase (adjudication) and the punishment phase (disposition) and despite all the language about in the Code about the multiple purposes of a disposition including the welfare of the child - make no mistake in the real world this is a punishment phase.

The only question to be answered at the disposition hearing is what to do with the child and there is no right to a jury in this phase of the proceedings - unless the child faces a determinate sentence. There are however several important rights that you as a parent or interested party should know about. For instance, at the conclusion of the disposition hearing the parent has the right to speak to the court and give a statement concerning the strengths of the child or the needs of the child and the family and any other information to help the court make the best decision for the family and child. This is important because often the parent has information that would otherwise not be considered by the court resulting in a harsher punishment. it's imperative that you work with your attorney on what to say before the hearing.

The options for the court in making its disposition are probation - this may include removal from the home (Family Code section 54.04). TYC commitment (Family Code section 54.04). Driver's license suspension (Family Code section 54.042) restitution, sex offender registration and SDT testing. Additionally, if you are the parent of the child the court may make orders affecting your conduct enforceable by contempt of court proceedings.

Continue reading "Disposition Hearings in Juvenile Court: Understanding and Navigating the Texas Juvenile Justice System, Part 5" »

This is part four of a series of articles intended to help explain to parents and other interested parties the juvenile justice system in Texas. Most of the minors who come in to the Juvenile court system are charged with relatively minor offenses and are diverted or receive deferred prosecution. However, where the child is 14 years old or above and commits a serious crime he or she may be certified and transferred to Criminal District Court and face the more draconian penalties and lose the statutory protections of the Juvenile court.

Texas Family Code section 55.44 sets out the certification and transfer process:

§ 54.02. Waiver of Jurisdiction
and Discretionary Transfer to
Criminal Court

(a) The juvenile court may waive its
exclusive original jurisdiction and transfer
a child to the appropriate district court or
criminal district court for criminal
proceedings if:
(1) the child is alleged to have
violated a penal law of the grade of felony;
(2) the child was:
(A) 14 years of age or
older at the time he is alleged to have
committed the offense, if the offense is a
capital felony, an aggravated controlled
substance felony, or a felony of the first
degree, and no adjudication hearing has
been conducted concerning that offense;
or
(B) 15 years of age or
older at the time the child is alleged to
have committed the offense, if the offense
is a felony of the second or third degree
or a state jail felony, and no adjudication
hearing has been conducted concerning
that offense; and
(3) after a full investigation and a
hearing, the juvenile court determines that
there is probable cause to believe that the
child before the court committed the
offense alleged and that because of the
seriousness of the offense alleged or the
background of the child the welfare of the
community requires criminal proceedings.

Its important to note that there are many cases where a child commits a qualifying offense in a non-mandatory transfer situation where in he or she is not transferred. If your child is accused of a serious offense and is eligible for certification and transfer it is imperative to mount a serious legal defense at the outset of the proceedings and attempt to prevent or defeat the transfer process.

Continue reading "Certification and Transfer Hearings: Understanding and Navigating the Texas Juvenile Justice System, Part 4" »

In previous posts I've discussed the arrest, detention and plea bargain process in a Juvenile law case involving a child who commits an offense in the State of Texas. But what happens if your child does not want to enter into a plea bargain in the case and the prosecutor won't dismiss the case. Well, much like in the adult criminal process there is a trial on the issue of guilt. However in a Juvenile case in Texas the trial on the issue of guilt or innocence is called an adjudication hearing.

The child who does not want to plea bargain in a Juvenile case has important rights guaranteed by both the United States Constitution and Texas statutory and decisional law. Briefly, these rights encompass the right against self -incrimination, the right to an attorney - in fact the right to counsel in a Juvenile case in Texas is deemed so important that it cannot be waived at the adjudication hearing, the right to require the prosecution to proof their case beyond a reasonable doubt and the right to a jury trial.

The right to a jury trial in a Juvenile case is an important right not avail in many states. This is a great advantage and requires that an attorney handling your child's case have jury trial experience. The Juvenile courts apply the same rules of evidence that are used in an adult criminal case which require exclusion of any evidence obtained in violation of the U.S. Constitution or other federal and state laws. This is another reason to be sure to hire an attorney who does both adult and juvenile trial work.

Continue reading "Adjudication Hearings in Juvenile Court: Understanding and Navigating the Texas Juvenile Justice System, Part 3" »

If you're a parent of a child arrested in Texas and find you and your child embroiled in the Texas Juvenile Justice system you can expect a series of hearings depending on the age of your child and the seriousness of the offense. The first appearance is usually where the court ensures the child has an attorney. It is important for you to hire an attorney experienced in Texas Juvenile law as early as possible so you can be represented at this first appearance.

The first appearance is the best appearance for me to talk to prosecutors and probation officers and determine whether there can be an early disposition of your child's case(otherwise known as a plea agreement or plea bargain). The best result or outcome of any case where an offense has been charged whether in adult court or Juvenile court is a dismissal. The first appearance is where the file can be reviewed to assess the strength of the evidence against your child. Also, it's a good time to inform the prosecution of facts and mitigating factors they are not aware of and perhaps gain a dismissal. Short of a dismissal the best outcome in most Juvenile cases is deferred prosecution.

Deferred prosecution is different than deferred adjudication in adult cases. In deferred prosecution the child is put on probation - usually for six months. If your child completes your probation satisfactorily there is no adjudication of guilt - the equivalent of a conviction. Hiring a good lawyer experienced in Juvenile law can help get this disposition and save your child from an adjudication of guilt (or conviction).

If there is no disposition or plea bargain then the case will either proceed to a adjudication or a transfer hearing.

Continue reading "Deferred Prosecution for Juveniles: Understanding and Navigating the Texas Juvenile Justice System, Part 2" »

If you are a parent in Texas and your child has broken the law you should realize that the juvenile justice system in Texas is very different than the adult criminal justice system. Minors from 10 to 17 who break the law can be arrested and subject to the jurisdiction of the juvenile court system...and guess what? So are you as the parent. You can be required to pay the juvenile attorney for your child as well as any services the court orders for the child and court and probation costs!

Generally speaking, kids end up getting into the system for either minor charges such as drinking under age or driving under age or far more serious charges such as vandalism, burglary, robbery or aggravated assault and murder etc...if your child is a first time offender for a minor offense he or she may get off with just a warning or an informal disposition which means the probation department can require the child to do certain things without having to attend court or face a Judge.

If your child commits a more serious offense or is a habitual law breaker then he or she will be arrested and forced into a very serious system that can affect you and your child for years to come. If this happens to you it is very important to contact an attorney very experienced in the intricacies of the juvenile justice system.

If your child is arrested he or she will face the following process:

The first step after arrest is juvenile detention. Detention is basically a temporary holding of your child in a holding facility (kid jail). Your child may be held there until released by the court or until proceedings are concluded. If your child is detained the Texas Family Code section 54.01 (a) provides that he or she is entitled to a hearing within one working day or on the first business day after a weekend arrest. So what's the purpose of the hearing? Well, the Judge decides if detention is necessary to ensure the child's appearance in court or for the safety of the community - generally speaking, the more serious the offense the more likely it is your child will be detained. If your child is detained at the hearing he or she stays in custody and every 10 days thereafter the court will have a new detention hearing to determine whether the detention will continue.

Continue reading "Juvenile Detention: Understanding and Navigating the Texas Juvenile Justice System, Part 1" »