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June 19th |WHEN GRANDPARENTS’ AND PARENTS’ RIGHTS CLASH
If you’re a grandparent who feels the need to step in to protect your grandchild, or you’re a parent who feels your child’s grandparents are interfering with your role as a parent, lend an ear to Michael Herndon, who has a lot of years under his belt practicing family law in cases of grandparent rights. Mike joins Rick to outline the criteria grandparents must meet to seek custody or be granted visitation or possession of their grandchild. Mike, a father and grandfather himself, also discusses how grandparents can sabotage the relationship between parents and their children, the dynamics of co-parenting, co-grand-parenting relationships, what options are available to grandparents of children whose parents are not married, and then switches the topic to break some myths about community property.[smart_track_player url=”//securemedia.iheart.com/media/station_content/676/2016/06/mp3/default/divorce_talk_radio_0_1466432067.mp3″ title=”WHEN GRANDPARENTS‘ AND PARENTS‘ RIGHTS CLASH” artist=”Rick M Goldberg | June 19th 2016″ image=”https://www.rickmgoldberg.com/wp-content/uploads/2016/09/player_picture_rick.png” color=”#454545″ social=”true” social_twitter=”true” social_facebook=”true” social_gplus=”true” view=”mobile” social_email=”true” ]
Rick: Good morning everyone and happy Father’s Day to you. Thank you for tuning in and listening to Divorce Talk Radio with Rick Goldberg. I am Rick Goldberg. And today’s show, I want to acknowledge and sponsored by the law firm of Laura Dale & Associates. I know you have many choices of shows to listen to this Sunday morning and I’m grateful that you choose KPRC 950 on the AM dial this morning.
I’m going to be your host for the next hour and we’re going to talk about all things divorce and we’re going to narrow into one kind of fascinating topic area. So if you’re going through a divorce, if you’ve been through a divorce, or you’re thinking about divorce, call our phone number here at the station, 713-212-5950. With me this morning is Michael Garfield, my sidekick and partner in crime on this show for the first couple of months. Michael, how was your week this week?
Michael Garfield: It was very nice. And first of all, it’s great to be a partner in crime especially if there’s a lawyer here in studio which I’ll introduce. Happy Father’s Day and dare I say, Happy Grandfather’s Day to you? You don’t look old enough to have a grandkid, sir.
Rick: I do. I do. I have a beautiful little 18-month-old granddaughter named Owen who is the light of my life and I tell you, if you have a grandchild, it is such a unique and special feeling. It’s just different than having your own child.
Michael Garfield: I got a while to go for that at least I hope so. And listen, congratulations. We have two months into this radio show. You’re doing such a wonderful job. And I do want to remind everybody. You don’t need just to sit here in the Houston DMA. Anywhere you go around the world, Rick Goldberg, you are famous. You are heard worldwide. Make sure everybody downloads that iHeartRadio app and wherever they go even on a Sunday morning no matter what time zone, they can listen to you. It’s free stuff. And again Rick, 713-212-5950.
Good topic today, speaking of fathers and grandfathers.
Rick: It is a good topic. And as I mentioned earlier, today’s show is sponsored by the law firm of Laura Dale & Associates. Laura and her team of ten or so lawyers, they work on some of the most contentious and complex types of family law here in the city. And they have an unchallenged specialization and international issues.
Today however, we’re going to be talking about grandparent’s rights. What it takes to get custody of your grandkids and the hoops that you have to jump through to make it happen. With me in the studio I’m really excited is a friend and a really fine attorney with Laura Dale, Mike Herndon. He is going to be joining me. And Mike is a very skilled family law lawyer, a lot of years of experience and he specializes in cases involving grandparent’s rights. Mike, welcome to the show.
Michael Herndon: Hi, Rick. Thanks for having me.
Rick: Really glad to have you in the show this morning. Tell our listeners a little bit about your practice and how it pertains to grandparent’s rights.
Michael Herndon: Well, grandparent’s rights is one of these things that has always kind of been in the background in family law and has really recently kind of come to the forefront. It’s because us, baby boomers, are now like you and I, as a matter of fact, I just had a grandchild too.
Rick: Hey, congratulations.
Michael Herndon: Thank you. And strangely enough, my grandson’s name is Owen.
Michael Herndon: So yeah, we have that in common as well.
Rick: What’s he named after? Owen Daniels the former tight end of Texas?
Michael Herndon: I’d have to ask Ally. I have no real idea why.
Rick: Because I know for a fact that mine was not.
Michael Herndon: Well, it was enough for his middle name has both grandfathers’ name are Michael.
Michael Garfield: Which is a great name, I must say.
Michael Herndon: There we go. And the only thing was when Ally told me what his name was going to be, I thought about his initials and I went, “OMG!” because his last name is Galvin.
Rick: Oh my gosh!
Michael Garfield: OMG.
Michael Herndon: Exactly. And Ally goes, “Oh no! We got to change this.” And I said, “No, you want to leave it just the way it is.”
Rick: Nice. That’s sweet. Well Mike, how did you find yourself gravitating into grandparent’s rights?
Michael Herndon: Well, it’s – strangely enough, I – before, I’ve been with Laura for about almost four years now and I worked with Earle Lilly for about four years prior to that. And Earle told me that in the six years that I was with him, I’ve handled more grandparent cases than he has in almost 30 years in practice. And they just – I don’t know why they gravitated to me but they did. All of them are interesting. There’s kind of a typical type of fact pattern though that you see.
Rick: Tell me – tell our listeners about a typical grandparent case and maybe even break it down as far as if someone is just tuning in right now and they’re hearing that we’re talking about grandparent’s rights. How does a grandparent even have the right to file suit in a divorce case or in a custody type of a case?
Michael Herndon: Well, you got basically two types of grandparent cases. One, a grandparent can actually seek custody of the child. And the other one, a grandparent could ask for access to the child or some of visitation or possession. The first issue is like you said, standing. They have to show the court that they have standing to either intervene in a case or to actually file an original case.
Rick: And how do they prove that they have standing? Tell us what standing is in this type of case?
Michael Herndon: Well, standing can basically come about in three ways. They could have uninterrupted sole possession and I’ll use the word “custody” of the child for six uninterrupted months. They can have by agreement of both parents or they have to show that the child’s current environment is dangerous to the child’s physical health or could hinder the child’s emotional development.
Rick: So uninterrupted sole possession, agreement by both parties, or that they’re in a currently dangerous environment. Is that right?
Michael Herndon: That’s it. That’s it.
Rick: Now, do they have to have all three or any of the three?
Michael Herndon: Any of the three.
Rick: OK. So it’s an or situation.
Michael Herndon: Correct.
Rick: One of the other. What happens – it kind of occurred to me, what happens in a situation where maybe the parent and the grandparent – I’ll take that back. The parent and the grandchild have been living with the grandparent for six or so months.
Michael Herndon: Well, that’s not – it comes up quite often and it’s not really a – that doesn’t count as uninterrupted sole possession.
Rick: Because it’s not sole possession.
Michael Herndon: Correct.
Rick: I got you.
Michael Herndon: Exactly.
Rick: OK. So one of those three have to happen. You have to have one of those criteria in order even basically knock on the door.
Michael Herndon: In order to go after custody, correct.
Michael Herndon: Or to be a joint conservator as the term used under Texas law.
Rick: OK. So then what? You’ve established that maybe now you can go after conservatorship. Then what happens?
Michael Herndon: Well, the normal type of case – there’s nothing normal about grandparent cases but a typical grandparent case is grandparents will come in and talk to me and they almost always describe a dangerous situation that the child is in.
Rick: OK. What are some examples and some of the dangerous situations that you’ve encountered with some of your clients?
Michael Herndon: Well, I’ve had one case for example where the grandparents were very well-to-do, was an executive with a very well-known company here in town. Their daughter, the mother of the child, had drug issues. She was fighting drug addiction. And the father who had just been released from your years in TDC and really didn’t have a relationship with the child at all.
Michael Herndon: So putting the child with either parent individually would be dangerous to the child’s physical health or emotional development.
Rick: So, how did that case shake out?
Michael Herndon: Well, dad wanted – dad tried to get custody. The court usually appoints an Amicus attorney in a case like this that will talk to both parents and grandparents, take a look at the environment and will usually side with one of the parties. In this particular case, it was clear that the grandparents were absolutely the best option for this child.
Rick: When the grandparents bring a case like that in your experience, is it an uphill battle for them in court or is it just another battle that the court sees?
Michael Herndon: No. I think the courts – it’s like I tell all my clients whether it’s a divorce or anything with the child is that the courts really don’t care much about you. The courts care about the children. So their primary concern is making sure that these kids are in a safe environment.
Rick: It’s funny you say that because I find myself when I’m working with clients and I had a client I was working with this morning who – or not this morning but last week, who is going to trial tomorrow. Continually trying to get them to understand that it’s not about them and it’s about what’s in the best interest of their child, what’s going to be – what’s going to make your child grow and prosper enough.
You’re listening to Divorce Talk Radio this morning. My name is Rick Goldberg. In the booth with me today is Attorney Mike Herndon. Stick around after this break, we’ll be right back and we’ll pick up more on grandparent’s rights.
Rick: Hello everybody and Happy Father’s Day on a beautiful Sunday morning. Welcome back to Divorce Talk Radio with Rick Goldberg. With me today is attorney Michael Herndon. Michael is with the law firm of Laura Dale & Associates. Also in the booth is my buddy, Michael Garfield.
I’ve got to tell you before we jump back into talking about grandfather’s rights and some things like this, grandparent’s rights, if I knew how amazing having a grandchild was, I probably would have figured out how to work the system where I could have a grandchild first.
Michael Garfield: Can you rent one?
Rick: I don’t think you could rent to own a grandchild. Mike, you said you have a grandchild now, right?
Michael Herndon: I do.
Rick: How old?
Michael Herndon: He’s six months.
Rick: What is like the sort of the coolest headline so far of your experience with him?
Michael Herndon: Well, I think it’s just listening to him laugh and watching him smile and then like you guys were saying, the best thing is, is handing them back which is nice. I know my daughter is doing a fantastic job of raising him. It’s a great experience.
Rick: Do you ever find yourself like wanting to offer a little tidbit of advice here and there and then having to hold yourself back?
Michael Herndon: Not at this stage, no. But as stepfather, I sometimes have to bite my tongue.
Rick: Yeah. I got to tell you. It’s so impressive. My daughter and her – and my son-in-law, they do such a great job raising Owen, my little granddaughter. And it’s incredible, it’s not like she had any training for how to be a mom and how to – like have this open loving heart and then all of a sudden a baby emerges and she is just like the most loving mother and nurturing that I’ve ever experienced. It’s just incredible. I mean her mother is a lot like that and I know that that trickles down. But it’s just incredible how, especially moms, just once they give birth to a child, they just have that natural instinct to want to do it.
Michael Herndon: I’ve seen the exact same experience with my daughter, Ally and her husband, Matt. They’ve just done an amazing job.
Rick: And I guess on the other hand conversely, not all kids know how to do it and they find themselves struggling with being a mom or being a dad, maybe trying to fill a void that’s left in them and turning to drugs or turning to alcohol and addictions. And thus, we find ourselves in situations where many people do and a lot of our listeners might where they feel as a grandparent, they’ve got to go in and do something that’s going to be in the best interest of that child.
Tell our listeners, Mike, I know we’ve got an email question that came in and before we go to that, tell our listeners, if they hire you for a case, what are they going to get for you? In addition to your skill in the law, what else do you kind of bring to the table that is unique in the practice of law?
Michael Herndon: I think probably the thing that sets me a little bit apart from a lot of people is that I didn’t go to law school until I was in my 50s and I have a broad background in business and I’ve raised two wonderful girls and I just had a little – a lot of life experience I guess.
Rick: Now, what compelled you to get back into law school so early in life?
Michael Herndon: Well, it was basically boredom. I sold a company and had a choice between either going back at work for somebody else or starting another one and I was in the travel business. And after 9/11, neither of those options looked good. So just to fight boredom, I set out, applied to the law school in town and sure enough.
Rick: So, you went full time during the day or at night?
Michael Herndon: No, I went full time during the day and finished in two and a half years and passed the bar the first time out and have worked for some incredibly talented family law attorneys.
Rick: And rumor has it, you married yourself a family law attorney.
Michael Herndon: I did. One of the – she is my best friend and my mentor and really one of the smartest people I’ve known in my life. She is fantastic.
Rick: That’s great. What’s her name?
Michael Herndon: Deb.
Rick: Deb. Sweet. Well, I haven’t met Deb yet. Are you open to taking a question? We got an email from one of our listeners who wanted to ask you something. Michael, can you …
Michael Garfield: Put you on the spot over here, is that OK, Mike?
Michael Herndon: Sure.
Michael Garfield: OK. All right. Here we go. This is what live radio is all about. All right. This is from Agnes. Agnes is in Deer Park. And she says …
Rick: That sounds like a grandmother name.
Michael Garfield: I guess – do kids name their kids Agnes now, people? That’s a pretty name. You just don’t hear it a lot today.
Rick: I love the name and I don’t think I would name …
Michael Garfield: Agnes, I just think of Bewitched. Remember the show, Bewitched?
Michael Garfield: Agnes Moorehead was the …
Rick: Yeah, Agnes. It’s a pretty hip name.
Michael Garfield: I like it. Agnes.
Rick: They will make a comeback because of this show.
Michael Garfield: Exactly.
Rick: Will they come back?
Michael Garfield: Agnes, thank you very much for typing in. OK. Anyway, here it goes. “Hey, guys. Rick, love your show. Good job. I got a question. I’m a grandparent and I’m really not happy with how my son and his wife are raising the kids. What can I do?” which is actually interesting because you guys were just kind of talking about this. That’s a good question, Agnes. Mike?
Michael Herndon: Well, it’s a good question and it’s – I rarely had grandparents come in with that kind of scenario. It’s usually much more serious. And Agnes, without me being able to ask her in detail has no standing to do anything through the courts. I mean the presumption is that a fit parent is always going to act in the child’s best interest. So you can have disagreements with how your children are raising your grandchild but that’s not going to get you into court or have a court make an order to where you’re conservatory in the case.
Rick: Because I know one part of the law, Mike, is that even if you don’t like it as a grandparent, your child can really alienate you from your grandkids if they think that’s what’s in the best interest for their grandkids.
Michael Herndon: That’s relatively true. The federal government rarely gets involved in these family issues but there was a famous case back I think around 2000, early 2000, called Troxel where a Washington state statute said that any person at any time could file for possession and access to a child if the court found it to be in the child’s best interest.
Rick: So that was a federal statute?
Michael Herndon: No. It was a Washington state statute.
Rick: A Washington state statute.
Michael Herndon: That basically ended up in front of the US Supreme Court. And the whole idea here was that the parental presumption that a fit parent acts in the child’s best interest should tramp anything that the state has to say. Pretty important case.
Rick: So, how does that play out now?
Michael Herndon: Well, the way it plays out in Texas law is that Texas statutes in terms of grandparent access and conservatorship are relatively detailed in what you have under the circumstances in what you have to show. It’s not a best interest hurdle. Best interest hurdle is pretty subjective and it’s easy to get over. It’s what I call an endangerment hurdle. You have to show the court that the child in its current circumstances is dangerous to the child’s physical health or hinders the child’s emotional development.
Rick: And what do you run into most, Mike, in those situations? Do you run into like drug and alcohol addiction issues, maybe parents that are in jail? What seems to rise to the top as to how parents can endanger their children?
Michael Herndon: I can give you an example of one case I had. A lot of these cases are kids having kids. So a 22 …
Rick: Younger kids having kids.
Michael Herndon: Exactly.
Michael Herndon: A 22-year-old today isn’t quite like a 22-year-old was back in the ‘60s or ‘70s when I was in my ‘20s. So this particular example, the mom was in front of a judge and mom is on government housing, a lot of government support, welfare, and the court asked, “You can’t support yourself, how are you going to support this 18-month-old child?”
And she looked at the judge and said, “Well, if I have my kid, I get more welfare.” And the judge looked at me like, “I can’t believe this kid just said this to me.” And he did. He told her to turn around and to make eye contact with everybody in the court and then when she did, she turned back around and looked at the judge and the judge says, “Now, explain to me why all these people and myself and Mr. Herndon here should have to pay for your child?”
Rick: And what happened? Just a deer and headlights?
Michael Herndon: Yeah. She just said – it went right over her head. She had no idea what he was talking about and my client, the grandmother, got custody of the child.
Rick: Wow! That’s fascinating. Well, you’re listening to Divorce Talk Radio on Father’s Day. And with me is Mike Herndon, attorney with Laura Dale & Associates. We’re talking about all things grandparents, related to grandparent’s rights. Give us a shout at 713-212-5950. We’re halfway through. We’ll be right back after this break.
Rick: Welcome back everyone to Divorce Talk Radio. This is Rick Goldberg. In the studio with me this morning is Michael Garfield of course and attorney with Laura Dale & Associates, Mike Herndon.
I got to tell you. I moved to Texas back in the mid ‘80s. I’m from Southern California. I didn’t really know country music. I wasn’t a big fan of it. But I become a fan of country music and I like that old country music as well as some of this newer country music. I know I bump into people all the time that they’re more purest and they just like that old stuff, Hank Williams, Willie, George Strait. But I like kind of the newer stuff.
Michael Garfield: Kind of the difference back then. You talked about ‘80s. That’s when I kind of got into country music. That’s when it was really called country and western. And now, it’s not country and western. It’s just country. And so, I think we described it as in there’s a lot of different channels, prime country is what they call it, the stuff from the ‘70s and ‘80s. And now, it’s young country, [0:27:47] [Indiscernible] country but it’s good.
Rick: This is your stuff, right?
Michael Garfield: Not so much. I’m an ‘80s guy. But Ramon Robles who is not only a program director but also a producer this morning, he’s so good and obviously, he takes your thing today which is grandparents and he said, “You know what? There are a lot of country songs with the grandparents.” And he’s right on.
Rick: Ramon has got some good instincts, some good gut. I also knew that when I moved here, I made this vow to myself that I would never say the word “fixin’” that I’m fixin’ to go do something, and I probably wouldn’t say “y’ll” and I find that two of my most favorites words in my vocabulary are “what you all doing” because I love saying y’ll and I’m fixin’ to go take care of that.
Someone may say, “Rick, when are you going to handle that?” I say, “I’m fixin’ to do it pretty soon.”
Michael Herndon: But we almost got the California out of you, Rick. So we’re working on you.
Rick: We almost did.
Michael Garfield: And I am a Texan and people know me for 13, 14 years. I never said the word “y’ll”. I do not use that word contraction or fixing and I’m from Texas.
Rick: That’s because you’re a professional radio voice so you have to be able to mold into every single step.
Michael Garfield: I think it’s because my parents are from Belmont and Houston. They have this Texas accent and I didn’t want to pick up the Texan accent because if you’re on the media, the media like I am, I didn’t want to do it.
Rick: Well, that’s the value, Mike, when you’re heard by so many people and you need to appeal to everybody.
Michael Garfield: Right. When you’re heard by millions of people now, Rick Goldberg across the world, so no more fixin’ or y’ll, it’s all Divorce Talk Radio.
Rick: Well, God bless iHeartRadio. And if you haven’t downloaded your iHeartRadio app, go ahead and do that. It allows you to not only listen to this show, which I assume you’re going to try and do any time you can but it allows you to listen to all the iHeartRadio shows all around the country. If you love ‘70s, they got a great station, just plays ‘70s music, ‘80s and of course country music.
In studio with me today is attorney Mike Herndon. Mike is with the law firm of Laura Dale & Associates who is our sponsor of our show today. Laura Dale’s firm does a lot of complex divorce litigation. They focus on international law and divorces with a lot of expats and things like that, which we have a ton of being the oil and gas capital of the world. And Mike who is with us today, his area of specialization although he works in a lot of different complex areas of family law is grandparent’s rights. And Mike, welcome back.
Michael Herndon: Thanks.
Rick: I really enjoy having you on the show this morning. What has been the highlight for you so far this morning working with us?
Michael Herndon: Well, I haven’t had a microphone in my face in probably 30 years so it’s good to know I haven’t lost it.
Rick: It has been that long, 30 years?
Michael Herndon: I think so.
Michael Garfield: Well, you haven’t lost a step. I thought you could say it’s the country music and it’s our company is the best highlight of your Sunday morning.
Michael Herndon: Well, you guys are too young. Country music is a Jerry Jeff Walker and …
Michael Garfield: Oh no, we know Jerry Jeff Walker.
Michael Herndon: You got to get that group all the way back into the ‘70s.
Rick: Mike, how old are you?
Michael Herndon: I’m 62.
Rick: Sixty-two, OK. Sixty-two years young. Well, you look good. You’re married but for you listeners out there, Mike is a good-looking, young version of 62 I got to tell you.
Michael Garfield: Let’s put a photo of him on the website. If you’re on the website, you can go not only find our find our phone number here if you want to call in, 713-212-5950 but you can also email the show. And emailing is fine. A lot of people, Rick, you know the radio business so much better, people are shy to call. They do want to text. They want to tweet and they want to email in. I got another email. Do you mind if I read it for you, boys?
Rick: We’ll take it.
Michael Garfield: OK. Robert in Cypress, shout out to Cypress over here. “Hey guys, I listen to the show for the past few weeks. It sounds great. I got a question if you wouldn’t mind taking a stab at it. My daughter has remarried and the new husband has adopted my grandchild and they moved. I used to see my grandson all the time. Now, I never do. Do I have any right and what can I do?”
That’s interesting. I never thought that grandparents would really have such a say so. Mike, what do you think about that?
Michael Herndon: Well, it’s the second prong in grandparent’s rights. One is conservatorship, acting as a safety net in a dangerous situation. The other one is possession and access. And the Texas Family Code has a section that deals strictly with possession of access to a grandchild and it’s pretty detailed.
But to kind of boil it down, it basically says the same thing that you have to have had substantial and significant contact with the grandchild and that you’re not being able to have access to or possession of the grandchild as a visiting grandparent would significantly impair the child’s physical health or emotional well-being. So that is – we’re back to that hurdle again even for possession.
Rick: And how high of a hurdle is that?
Michael Herndon: Well, it’s based – I think the statute reads something to the effect that it has to be high enough to disprove the presumption that the parent is not acting in the child’s best interest. That by denying access to the grandparent, it would impair their emotional well-being. That’s the easiest – that the most subjective one for a court to hear.
So again, if you took that into a court and said, “I had significant access to my grandchild. We had a tremendous relationship.” You have to put on evidence about the relationship. The court would probably appoint an Amicus attorney who could basically report back to the court as to how upsetting this is to the child and that grandparent at that stage would probably granted access and the case would move forward.
Rick: That is interesting. What other kind of cases, Mike, do you come across in your practice?
Michael Herndon: Being an ex-business person, I do a lot of property really detailed property business valuations in particular.
Rick: Well, let’s turn the page. Break some myths for people around what is considered separate property and what’s considered community property and explain. That might be a term that a lot of people may not be a familiar with unless they’ve been through a divorce. For those of us or for those of you all thinking about divorce or fixing to divorce, what is exactly – explain for our listeners the difference from the legal perspective between community property and separate property.
Michael Herndon: All right. Well, under Texas law, everything in a marriage is presumed to be community property. And there are certain ways to rebut that presumption. The ones that handle, I think probably 98% of it is if you owned it prior to marriage, it’s your separate property. If it was gifted to you, it’s your separate property, i.e. your wedding rings and things like that were gifted. So therefore, it’s not included in the community inventory.
The other one is if you inherited it. So if you’re in a long term marriage and the parents of one’s spouse dies and they inherit $2 million, that’s spouse’s separate property.
Rick: OK. So I’ve heard it said by some people, “What’s mine is yours and what’s yours is mine.” No, I’m not getting that quite right. I think it was a way of saying everything belongs to me. How does that expression go?
Michael Herndon: What’s yours is mine and what’s ours is mine. Something along that line.
Rick: That’s right. It might have been Earle Lilly who told me that, a fellow that I used to work with a long time ago. Yeah, a lot of people when they get married, they have this sense that once they get married, everything becomes co-mingled and everything that was my separate property before, now all becomes community. But that’s just not the case, is it?
Michael Herndon: Not here in Texas, no. I have people coming all the time and say, “Well, my name is on the title of the car.” But the question is, was the car purchased during the marriage? If it was purchased during the marriage, it doesn’t make any difference whose names on the title. It’s a piece of community property.
Rick: And what about for a lot of listeners I know who have been with companies for quite a lot of years, what about their retirement accounts? The retirement accounts, money that they have earned through their work in their employer, separate or community?
Michael Herndon: If it’s earned – the amount that went into the retirement account during the marriage is community property.
Rick: So a lot of people are going, “Darn! Not good.” What about the gift that my wife might have gotten? Do I have to – she has got to share that with me or is that going to be hers?
Michael Herndon: No. If it’s gifted to her, it’s her separate property. I think the one thing that our listeners would probably be very interested that I see happen a lot is that the husband would have owned a piece of real property and his name was only the deed prior to being married. And being the good guy that he is, after he got married, he put his wife’s name on the deed along with his. That is called a presumption of gift. And now the residence becomes community property.
Rick: It sounds like that’s called not a good idea.
Michael Herndon: You got to be careful.
Rick: Welcome back to or welcome to Divorce Talk Radio. We’ve got one more segment left. We’re going to head into a break right now. I’ve got Mike Herndon with me. See you after this break. Stay tune for our last segment.
Rick: Hello everybody and welcome back to our final segment of Divorce Talk Radio. This is Rick Goldberg. Our show this morning is sponsored by the law offices of Laura Dale & Associates. And we have one of Laura’s fine young attorneys, 62 young, Mike Herndon. Mike, thanks for being on our show this morning.
Michael Herndon: Thanks for having me.
Rick: Was it hard to get out of bed this morning and get over here at 7:30 AM?
Michael Herndon: At my age, it’s always hard to get up.
Michael Garfield: You’re young. What age are you talking about? He’s young lawyer.
Rick: He’s 62.
Michael Garfield: Better you than me.
Rick: You’re the young man I think in this group.
Michael Garfield: I guess by age but I think Mike can take me to boxing ring and a marathon right now. You’re looking great, my friend.
Michael Herndon: I don’t think I could get into a boxing ring at this day.
Michael Garfield: I could run far but maybe not faster. But Michael Garfield over here, just kind of helping out Rick Goldberg in Divorce Talk Radio and making sure everybody knows the phone number. It’s 713-212-5950. We’ll pick you up, try to put you on even though we got I’d say, 7 or 8 minutes.
And also, iHeartRadio, download that app because Rick, they just don’t listen to you here in Houston area, they listen to you all over the world. We got some good emails here too.
Rick: Not only that too but a lot of people are listening to the show on the internet or through the media and podcast section of the KPRC website.
Michael Garfield: KPRCRadio.com.
Rick: So if you miss us this morning on Sunday, you can catch us really any time in the future. All the shows are preserved, not only my show but all the shows that are produced at KPRC. So it’s a great little place and I really enjoy doing the show and have been enjoying it for the last couple of months.
Hey Michael, have you had situations where you’ve had grandparents come to you and they’ve explained their situation and you’ve had to tell them, “You know, you just don’t have a case here.”
Michael Herndon: Yeah. Actually, it happened earlier this month. They just weren’t happy about the whole scenario. But everything that they told me was basically not an endangerment type scenario. And as a matter of fact, I’m representing their daughter now.
Rick: Oh, she’s filing suit against the grandparents?
Michael Herndon: It’s a paternity scenario but it’s an interesting situation.
Rick: So what did they come in with? What sort of I guess facts did they think that they had that they were trying to obtain some rights in this case?
Michael Herndon: Well, I guess mom has two other kids, just had a third and they got – they’re basically supporting her at this stage. And the dad of the third child has filed a petition to adjudicate parentage. And they wanted to know if they could get in the middle of it and I said not without taking an adverse stand against your daughter.
Rick: What is a petition to adjudicate parentage?
Michael Herndon: That’s basically …
Rick: And how do you spell all that?
Michael Herndon: I’m the last person you want to ask to spell anything.
Rick: So petition to adjudicate parentage. Tell our listeners what that is.
Michael Herndon: That is basically when two people have a child and aren’t married, so there’s no presumption or by-law father. And one or both of the people went to the court to determine who are the parents and create a parenting plan which includes rights and duties and child support and possession and access.
Rick: Interesting. Well, how often do you run across a situation where now grandparents have rights? So they’ve came in. They have taken – they have gone into court and now they have rights and maybe they have the possession and the grandchild is living with them. What about the co-parenting, co-grand parenting relationship between them for that child and the other spouse in the picture?
Michael Herndon: Well, it’s good that the Texas Family Code doesn’t deal with parents. You don’t see the word parents in there very often. You see the word conservators. And you could have as many as conservators as you want. So whatever the court feels, however many people need to be involved in the decisions and rights and duties of the child.
So I’ve seen a lot of cases where grandma and grandpa are the joint managing conservators and mom and dad or what we call possessory conservators that might have access to the child via supervised visitation sometimes or a stepped up program. Usually, the idea is to let the parents fix themselves and then move up to a position where they’re ready to take over and then you file another modification and the court will give the rights back to the parents.
Rick: Let me tell you what I experience every now and again with grandparents. And Mike, I love to hear your comments on this. I work in a lot of large litigation and often at this level because it’s so contentious. There are typically a lot of issues and just a lot of bad blood. It goes to court. So they’re literally in court, one or two-week jury trial fighting over who should be the primary parent of the child.
And what I have seen more times than not and it’s just something that’s really on my radar and I’ve got a really protect for it, I’ve seen more grandparents come in and just completely sabotage their kid’s case. In other words, their child, the parent of their grandkids wants to be real collaborative, wants to show the co-parenting, wants to work with the other. And they unfortunately come in when they testify and it gets the better of them. And they are basically alienating the other child.
And so juries I’ve seen, they are putting the child with the parent where they feel – because they feel like if the grandparents are so involved, it’s not going to be really that good and for the best interest and growth of the child.
Michael Herndon: And again, if grandparents come into a custody case and they are an alienating factor whether it’s a jury or any of the ten incredible family judges that we have here in Harris County, alienation is a bad, bad thing in a custody case. So whether the grandparents are trying to help or they might be hurting by showing that they’re an alienating factor in the case.
Rick: Yeah. We try and keep them out of subpoena range now. It’s kind of what we do.
Michael Herndon: It’s usually a good idea.
Rick: And for you all that are listening and not really quite sure what alienation is, if you find yourself building a wall between one parent and the other or building a wall between your grandchild and one of their parents, you’re alienating. What we need to be thinking about are to how to build bridges and you go over bridges in a lot of different ways, but how do you not build walls and how do you build bridges so that you can create the best living condition for that grandchild or for that child.
Michael Herndon: Absolutely.
Rick: Yeah. Alienation is a really bad word in family court. Unfortunately, alienation is a type of thing where nobody wants to alienate but unfortunately, I think it’s one of those things that are just programmed into you how you might have picked up on it from your parents. You don’t really even know you’re doing it.
But I have found when I work with people, once we could point them out – point them to the fact that they are alienating and getting them more conscious about that, they could be much hipper to the fact that they can let go of that. They don’t have to continue that type of behavior.
Michael Herndon: Well, I think you have to point out the fact that it’s selfish behavior. They’re doing it. They’re doing it because they’re angry at the other spouse. And what’s happening is they’re affecting the child and that’s what bothers family courts.
Rick: Yeah. You could tell them it’s selfish. But I’ll tell you, if you tell somebody they’re being selfish, the first thing they’re going to do is they’re going to dig in and they’re going to push back from you. So, I found you can’t really tell someone they’re being selfish. It’s more like you have to tell them, “Grandparents, you could do this right now. You can practice with your kids. Hey look, I know you’re doing the best you can. I know you’re really trying. Here’s how it makes me feel when you do it this way. And would you consider doing it this other way?”
And if you can communicate your feelings about the issues at hand in that way then you’re being collaborative and you’re being less alienating yourself and at the same token, you’re teaching a new way of having positive communication with your child.
Michael Herndon: Absolutely. If you can get that point across then you’re very good at what you do.
Rick: So everybody, we’re coming to the end of our show. I want to reach out and just thank Mike Herndon, one of the attorneys at the law offices of Laura Dale & Associates for joining our show this morning. Mike, really glad you’re here. It has been really insightful.
Michael Herndon: Thanks. I’ve really enjoyed it.
Rick: And Michael, I want to thank you again for everything that you bring to the show. And I know that you like to say that the show is over, capital O-V-E-R. But I prefer to say that when we’re talking divorce, when you take the L out of lover, then it’s over.
Michael Garfield: It’s over.
Rick: And so that’s our show this morning. Thank you again for joining us here on KPRC 950 for myself, my two Mikes in the studio and Ramon in the booth, my daughter who helps out as one of our co-producers. Thanks again. Have a great Father’s Day and we’ll see you next week.
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