Dallas Divorce Lawyer & Attorney : Verner & Brumley Law Firm : Serving Dallas, Plano, Fort Worth, Texas

When spouses agree to a divorce, a divorce decree is prepared, and the divorce is "proved up."  Technically, a prove-up is a trial.  One or both of the spouses testifies about the grounds for divorce, custody and visitation for the children and the division of the community estate. 

Prove-ups also are necessary in default cases.  A default case is one where the other spouse is served with citation (or waives service) but does not file pleadings with the court, make any agreements with the filing spouse, or show up for the prove-up. 

In both types of cases, a busy court docket and the lack of any objection to the divorce can result in a curtailed prove-up.  But all divorce decree must be supported by sufficient evidence.  It can be a mistake to shorten a prove-up because then a spouse can appeal on the ground that the evidence is insufficient to support the decree.

We've written about this issue before, in Newsletter entries for January 8 and February 26, 2004.  The El Paso Court of Appeals has highlighted the problem again in the recent case of Giron v. Gonzalez. 

By agreed temporary orders, Ms. Giron had temporary custody of the children.  Mr. Gonzalez paid her child support.  But Ms. Giron failed to appear at the divorce hearing.  Mr. Gonzalez obtained a divorce by default against Ms. Giron, alleging no-fault grounds, adultery and cruelty.  The trial court granted him sole custody of the children and suspended Ms. Giron's visitation with the children.  Finally, the trial court forgave past-due child support owed by Mr. Gonzalez.

On appeal, the El Paso Court found that Mr. Gonzalez did not introduce enough evidence into the record to support any finding but no-fault divorce.  To demonstrate its point, the Court quoted the entire prove-up which is copied in the extended entry.

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On January 5, 2006, President Bush signed the International Marriage Broker Act of 2005 ("IMBRA"), found at Title VIII, Subtitle D of Public Law No. 109-162 which itself reauthorized the Violence Against Women Act. 

IMBRA imposes certain requirements on Internet dating services that primarily focus on matching American men with foreign women.  Before allowing an American to communicate with a foreign woman, an Internet dating service must conduct a criminal background check on the man, a sex-offender check on him and require him to complete a questionnaire detailing his previous arrests, convictions, marriages, divorces, children and all states of residence since he turned eighteen.

As one might imagine, IMBRA has been unpopular with American men who claim that it unfairly presumes they will abuse their future foreign spouses.

Why did Congress pass this law?  A court that ruled on IMBRA's constitutionality explained:

The rates of domestic violence against immigrant women are much higher than those of the U.S. population as a whole and have in common with women brokered through international marriage brokers a number of factors, including the dependency of the immigrant woman on the U.S. citizen for her legal status.  An estimated 70% of abusive U.S. citizen spouses, including those who consummate relationships through [International Marriage Brokers], withhold the filing of the proper paperwork necessary to validate the legal status of their immigrant female partners to cause them to fall out of legal status and to hold the threat of jail or deportation over the woman.  Estimates by the National Institute on Justice are that over 73 percent of domestic violence cases go unreported.

An international marriage broker called European Connections & Tours, Inc., sued to have IMBRA declared unconstitutional.  European Connections contended that IMBRA posed an impermissible prior restraint on European Connections' free speech rights.   A federal district court in Georgia upheld IMBRA's requirements.

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The courts have made it clear that parents have a fundamental right to custody of their children.  For this reason, grandparents sometimes are denied visitation with their grandchildren when their child - the children's mother or father - dies.  But what happens when the parents are divorced and the parent who had custody of the children dies? 

The San Antonio Court of Appeals ruled that the surviving parent has the right to custody of the children when the custodial parent dies - unless it is shown that leaving custody with the surviving parent would cause a serious and immediate question concerning the children's welfare.

This ruling came about when a custodial mother died.  The maternal grandparents took custody of the children while the father, who lived out of state, traveled to Texas.  The maternal grandparents filed suit to obtain legal custody of their grandchildren.  The father filed a petition for writ of habeas corpus to obtain custody of his children.

The habeas corpus statute requires that children be returned to the person who has the right to custody of them unless it can be shown that there is "a serious immediate question concerning the welfare of the child."  The grandparents argued that the children should have remained "with the people who can provide them the most comfort:  their grandparents and their nanny."  But the San Antonio Court ordered the children returned to their father.  It held that "merely removing a child from a familiar environment does not rise to the level of a serious and immediate question concerning a child's welfare in the habeas corpus context."

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Texas' Standard Possession Order sets out when the noncustodial parent has visitation with ("possession of") the children.  By default, the noncustodial parent has visitation with the children on Thursday evenings during the school term between 6:00 p.m. and 8:00 p.m., and on the first, third and (if there is one) fifth weekends throughout the year from 6:00 p.m. Friday to 6:00 p.m. Sunday.

But a noncustodial parent may request alternative times for visitation to occur on Thursdays and on weekends.  According to Texas Family Code section 153.312(a), the noncustodial parent may elect that weekend visitation begin when the child's school is dismissed on Friday.  The noncustodial parent may elect - unless not in the child's best interest - that Thursday visitation begin when school is dismissed and end on Friday when school commences.

What are the results of the alternative visitation times?  Thursdays become overnight visits, and when a Thursday precedes weekend visitation, as a practical matter visitation begins Thursday when school lets out and ends on Sunday at 6:00 p.m.  Thus, a noncustodial parent may have extended weekend visitation.

But this Family Code section, and another one like it - Texas Family Code section 153.317 - require the noncustodial parent to make these elections "before or at the time of" the original court order setting out visitation, or "before or at the time of" any modification order.  A recent Fort Worth Court of Appeals case faced the issue whether a noncustodial parent could ask for these elections by themselves, after a modification order recently had been signed.  The Court held that this parent had lost his opportunity to make these elections because he did not make them before or at the time the court granted the modification order.

Accordingly, a noncustodial parent who wants to elect these alternative visitation times must make these elections "before or at the time of" the divorce, a paternity order or a modification action, or the elections will be considered waived.

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