November 4, 2025 • 35 mins
Ever wondered where the legal line sits between “documenting” and “spying”? Hunt Law Firm attorneys, Alex Hunt and David C. Adams, tackle seven hot‑button family law questions YOU asked and give clear, usable answers you can act on today. From one‑party consent recordings to the criminal risks of AirTags and tracking apps, we explain when evidence helps your case—and when it can blow it up.
We walk through travel rules for co‑parents, including why most decrees treat out‑of‑state trips differently from international travel and relocation, plus the small communication habits that lower conflict and build credibility. You’ll learn what an amicus attorney really does, how their role differs from a custody evaluator, and why naming the right person can shift mediation and the ultimate outcome.
Money and mobility get real, too. If your ex keeps the car but your name stays on the loan, we share decree language that protects your credit with refinance deadlines and sale procedures. We unpack geographic restrictions—what “county and contiguous counties” actually means, why “lift language” matters if someone moves, and how boundaries impact real‑world involvement with your kids. We also break down drug testing: how courts view marijuana versus hard drugs, the consequences of refusals, and tools like Soberlink that can get you back to normal possession schedules.
To round it out, we demystify subpoenas: subpoena duces tecum, business records affidavits, depositions, timelines, and how to respond without landing in contempt. It’s a fast, practical tour of the pitfalls we see every week—and the strategies that keep you safe, credible, and focused on your children.
If this helped, follow the show, share it with a friend who needs it, and leave a quick review so more Texas families can find clear answers.
Got a question we should cover next? Send it our way!
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
SPEAKER_01 (00:08):
Welcome back to the Texas Family Lawyer Podcast.
Today I am joined by attorneyDavid Adams.
Welcome back, David.
Thank you.
All right.
So today we're going to dosomething a little bit
different.
We usually will uh handle aparticular topic in Texas family
law, but we've gotten a numberof questions from listeners or
viewers that don't really fitinto a particular topic area and
(00:32):
they're not quite large enoughto be an entire podcast.
So we have compiled all of theminto seven burning questions
that our clients uh or ourviewers or our listeners have.
And we're just going to run downthe list and we're going to jump
right into it.
Um, so number one, is it illegalto spy on your spouse in Texas?
What do you say, David?
SPEAKER_00 (00:53):
Is it illegal to spy on your spouse?
Well, like a lot of things inthe law, it probably depends on
how we define spy.
Um, there are, you know, Texasis um somewhat famously a
one-party consent recordingstate, which means that you're
allowed to record either audioor visual recordings um of
(01:17):
parties to a conversation aslong as one of the parties to
that conversation consents.
So if you're recording aconversation between you and
your spouse and you consent tothat recording, that's okay.
What you can't do is potentiallyrecord a conversation between
two other people when you're nota party to that conversation.
(01:39):
Now, there I know there havebeen some legislative changes in
the last couple of years aroundtracking devices.
SPEAKER_01 (01:45):
Well, before you get to that, let me ask you about
the the conversations, because acommon situation that sometimes
we'll deal with is um arecording device is placed with
the child, and then the childgoes to the other spouse or the
other parents' home, and they'llsay, Well, the child is an
(02:06):
extension of me, and so it's asif I were there.
Would you recommend doing that?
SPEAKER_00 (02:12):
My advice to clients would be don't do that.
And the reason I would say thatis because I think that's a bit
of a gray area in the law, and Ithink the particular judge that
you end up front in in front ofcould probably go either way on
that one because it is true thatum as a as a parent to a child,
you're allowed to consentessentially for that child to do
(02:32):
a variety of different things.
So could a judge look at thatsituation and say, you know, the
other parent is an extension ofthe child, and so they're
consenting to the conversation,and even though they weren't
there, it's okay.
That's possible.
Okay.
Um, but I would definitely notencourage clients to do that.
All right.
So let's shift to trackingdevices.
Yeah, you know, especiallytoday, um, you know, air tags
(02:56):
and different devices areeverywhere.
A lot of people use that kind ofstuff.
Um, a lot of uh people sometimeshave tracking devices, they
don't really think about it,like Life 360 applications or
phones.
Um there is new uh law withinthe last couple of years talking
essentially saying that you'renot allowed to track other
(03:17):
people without their consent.
So one of the things that willpopularly come up in a divorce
is you know, before you file fordivorce, one spouse might think
the other spouse is cheating.
They want to confirm or denythat, and so they might put an
air tag on a spouse's vehicle,see where they're going.
Um, my understanding, and again,this is a criminal statute.
(03:38):
I'm not a criminal lawyer, butmy understanding of the criminal
statute around this is that thatkind of behavior without the
other spouse's consent ispotentially criminal and
illegal.
SPEAKER_01 (03:49):
Yeah, and that's the caveat to all of this is that if
you've got consent, you know,say you've got two spouses, for
example, my wife and I, we bothhave Apple devices, and so we
have our fine mice so that waywe can, you know, see where we
are.
Um if you've got consent, that'stotally fine.
This is simply when there is noconsent, and usually when you're
(04:10):
in the middle of a divorce oryour your marriage is breaking
down, there's typically notconsent anymore.
And um, I wouldn't rely on yourspouse affirmatively telling you
in writing or verbally, youknow, I no longer consent to
this anymore.
There should be an impliedunderstanding that if you're if
you have gone from a happycouple where there was consent
(04:33):
to a divorcing couple, that theconsent's probably not there
anymore.
And so to err on the side ofcaution.
Um, and there is a differencebetween like the live 360 apps
and um things like placing amagnetic tracking device on the
bottom of a vehicle or somethinglike that.
That is kind of a more egregiousuh display of spying on your
(04:58):
spouse that I think the judge isgoing to treat more harshly.
Um, and you know, like you said,these are criminal statutes,
they're not in the family code,but there are both state and
federal criminal laws that areat play here.
So before you think about doingsomething like this, please run
it by your lawyer so that wayyou don't run afoul of any
(05:21):
federal or state law.
SPEAKER_00 (05:22):
And I would also say if you are somebody out there
who is contemplating divorce ormight think divorce is on the
horizon and you have done thisalready, my advice to you would
be don't tell your spouse that,right?
At least, at least not yet,right?
I mean, I'll have a situationwhere a client might come to me
and say, I have all thisinformation I recorded or I've
(05:44):
tracked my spouse, I confrontedthem, you know, didn't believe
them, and so here I am.
Well, now your spouse knows thatyou 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'mgonna pursue criminal charges
against you for what you alreadytold me that you did.
(06:06):
So I would definitely say ifyou've done that already, to the
extent that you can, as yousaid, have that conversation
with your lawyer before you everhave that conversation or let
your other spouse know that youmight have done something like
that.
SPEAKER_01 (06:18):
Yeah.
And and the bottom line is whenin doubt, don't do it.
Um, and when you do come to alawyer, we have professionals,
private investigators that wework with that if you need to
figure something out, you needto find something out, you need
to follow somebody, don't do ityourself.
There's a process for this.
Come and talk to us and we'llwalk you through it.
Absolutely.
Next question uh out of statetravel, if you have joint
(06:41):
custody, do I need my co-parentspermission to travel out of
state?
SPEAKER_00 (06:47):
Unless there's something special in your
decree, I often I've I have veryinfrequently seen custody orders
or decrees of divorce wherethere's a provision that says
that you've got to notify theother parent in order to travel
out of state.
Now, most decrees will say thatyou have to notify the other
parent if you're gonna travelout of the country, right?
(07:08):
That's that's a very commonprovision.
And often to travel out of thecountry, the uh federal
government requires you, inorder to get on a plane or
sometimes even a cruise ship, tohave special forms with the
other parent's consent, whetherit's in your decree or not.
Um, but you want to essentiallyyou want to look at your decree.
If there's not somethingspecific in the order that says
(07:28):
that you've got to do that, nowif it says if you travel out of
the state, you've got to let theother parent know, then well,
that's exactly what you got todo.
But that's not a standardprovision.
SPEAKER_01 (07:39):
And and bottom line, always look at your decree.
Your decree always governs.
We're just talking aboutstandard provisions and uh
always talk to your lawyer andand they'll make sure that they
can sit straight and let youknow.
SPEAKER_00 (07:52):
Absolutely.
There, you know, there are a lotof times injunctions that get
filed at the beginning of thecase that some counties, I can
think of uh a local county here,Fort Penn County, where there's
a provision in there that saysthat you're not allowed to
change the child's primaryresidence outside the state of
Texas while the lawsuit ispending, which is not the same
thing as taking your kid on aspring break vacation.
SPEAKER_01 (08:13):
Yeah.
Going to Disney World isdifferent from taking uh your
child to Florida to move there.
Right.
And that's different than goingto uh Disney World Paris.
Right.
All of those things are going tohave different provisions
associated with them.
All right.
Next question.
Um what is an amicus attorney?
SPEAKER_00 (08:33):
So an amicus attorney is an attorney that is
uh essentially appointed by thecourt to represent the best
interest of the child.
Um there are some other types ofattorneys, such as an ad
lightum, who literally representthe child in these situations.
(08:53):
But that's not what an amicusattorney actually does.
Uh they they they truly arethere to represent quote unquote
the best interest of the child.
I think a lot of judges look atamicus attorneys like they are
somewhat an extension of thecourt, a kind of more neutral
third party who can go in andand again try to ascertain the
(09:15):
best interest of the child asopposed to the lawyers who are
already on a case who are goingto be inherently biased towards
their clients.
Um one thing I think peopledon't understand about the
amicus attorney, which is true,is that an amicus attorney,
though, is just an attorney.
And so, you know, the only rolethat they only only things that
they can in practice do that'sreally gonna change the outcome
(09:36):
of a case if your case ends upin trial is they're gonna have
the ability to call witnesses,they're gonna have the ability
to examine those witnesses onthe stand, they're gonna have
the ability to offer evidence,they're gonna have the ability
to make a closing argument.
Um, but that's it, right?
You know, they don't they don'tget to write a report like in
say a custody evaluation.
They don't net they don't get tomeet privately with the judge,
(09:56):
or at least they shouldn't, andhave a conversation about that.
You know, here's what I think.
Um, they're just another lawyerthat's there, hopefully to
represent the best interest ofthe child.
SPEAKER_01 (10:05):
Yeah, and that closing argument, that's going
to really be the only time thatan amicus attorney, if you've
got a trial, is going to be ableto um give an indication of what
they feel whether the childshould be placed with one parent
or the other, or there should besome sort of special provisions.
Otherwise, the way that theyconvey their message during
(10:26):
testimony is just through askingquestions.
And so maybe the jury or thejudge can get an idea of kind of
where they're coming from andwhat their thought process is
depending on the types ofquestions they're asking, um,
whether they're more friendly toa witness or uh they're more
acrimonious towards them.
But um, an amicus attorney willhave some uh, you know, the
(10:50):
ability to go and visit with thechild, but it isn't like they
can visit with the child andthen report back to the judge.
That's exactly this is what Italk to the kid about, this is
what the kids need, you know.
Um, so I think that's a commonmisconception that a lot of uh
our our clients have.
The other thing is, you know, wetalk about this quite frequently
(11:11):
when we're staffing cases, isbringing on an amicus attorney
can be risky.
Um it it lessens and mitigatesthe risk when you know who the
amicus attorney is going to be.
But if you're just going to thecourt and saying, we need an
amicus attorney, we can't agreeon who it's going to be.
You don't know who that person'sgonna be.
You don't know their skill set,you don't know um how much time
(11:34):
they can commit to the case, youdon't know if they're gonna be
any good or not.
Um, you don't know if they'vegot a certain bias.
And so you're taking on a bigrisk because you're letting go
as the trial attorney of alittle bit of control of the
case.
You're interjecting uh a thirdattorney that might have a
(11:55):
different feeling, and you mightend up at trial on two against
one, your spouse and the amicusattorney versus you.
But like all risk, you might endup on the side of the amicus
attorney and then you're twoagainst one and the other side.
Um, and you might also have anamicus attorney that kind of
plays it a little bit more downthe middle.
(12:16):
Some of the benefits of anamicus attorney are that it it
allows the child to feel likethey have some sort of voice in
the process because they're ableto talk to somebody who should
be on their side, um, eventhough they are tasked with
representing the best interestsof the child.
They should be listening to thechild and voicing their
concerns.
Um, and a lot of times an amicusattorney is tasked by the court
(12:40):
with not just recommendingwhat's best for the child, but
trying to reach an out-of-courtagreement.
SPEAKER_00 (12:47):
I was just about to say, I I think one of the
biggest hope, hopefully, rolesthey'll play is in settlement.
I I think it's I think it'susually pretty helpful in at
mediation for final orders orleading up to mediation for
final orders for the amicus tobe able to sit down and tell one
of the parties, look, here'shere's which way I'm leaning and
put some pressure on them tounderstand to the point that you
(13:07):
made earlier that look, if weshow up at trial, this is
essentially going to be a twoagainst one.
I'm more on mom's side, or I'mmore on dad's side, or here's
what I think is in the bestinterest of your child.
And uh that can be that can bepowerful.
Right.
SPEAKER_01 (13:22):
All right, very good.
Uh, next question is uh yourspouse 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 nameoff?
Um, talk a little bit about thisin the context of a house.
Typically, if we have a housethat's in both of the parties'
(13:43):
names and um just one or both ofthe parties have their name on
the mortgage, say the wife iskeeping the house, the mortgage,
the husband has his name on it.
Um, there are certain documentsthat we can file in the real
property records to make itclear that the wife is assuming
that uh mortgage and she has anobligation to pay.
(14:05):
And if she doesn't, then thehusband can go and foreclose on
the house and sell the house andum protect his property uh
interest, protect his credit ifshe's not paying the mortgage.
Those protections don't existwith regard to vehicles.
And so my advice is always ifyou are concerned that the
(14:26):
person who is keeping thevehicle is not going to pay the
loan that's in your name, you'vegot it get some sort of
agreement that they're gonnaeither sell that vehicle or
they've got to refinance it andget your name off of it because
you just don't have the sameprotections.
And if they don't pay it, you'rekind of out of luck.
The other thing to consider,too, is that if you are going to
(14:49):
make a big purchase later or youneed to buy a house and you need
to get a mortgage, um,debt-to-income ratio is
something that loan companiesand mortgage companies will
consider, even though yourex-spouse has that vehicle and
they're paying the note on it,still on your credit because
it's in your name.
(15:10):
And so it's going to counttowards your debt to income
ratio.
It could mean that you're not,if you're kind of on the cusp of
that debt to income ratio for amortgage 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 thatmortgage.
SPEAKER_00 (15:25):
That's I agree 100% with everything you just said.
My advice would be because ofall of that, if you find
yourself in this situation, youwant to make a provision, which
you can put in your final decreerelated to this to make it clear
that your other spouse has acertain amount of time to
refinance the auto loan.
And if they don't, I would saythe average one would probably
(15:48):
90 days.
Um, if they can't do that, thenthe vehicle's got to be sold.
And so that way, at leastthere's a fixed amount of time
that's hopefully shorter betweenwhen you're gonna get divorced
and when they've got torefinance that or that'll be out
of your name.
So to your point, if you want togo get another loan, you'll have
that ability.
SPEAKER_01 (16:04):
Yeah, and a lot of times people will have a page or
two of instructions on how avehicle is going to be sold, and
we'll hear from either ourclient or the other side of why
is this so complicated?
Um, it's because we deal in thisworld where of worst-case
scenarios.
And so if somebody um doesn'trefinance, then we need to have
(16:28):
a provision for that.
And if then they are supposed tosell the vehicle, but they don't
go and sell the vehicle, we needto have a provision for what
happens then.
Does the vehicle revert back tothe other spouse?
And so what we try to do isclose as many loopholes as
possible.
We can't close every possibleloophole.
There are going to becontingencies that will come up
(16:49):
that we can't deal with, but wetry to close as many as we
possibly can.
SPEAKER_00 (16:52):
That's right.
And you know from from yourpractice that when you when you
have the worst case scenario andyou end up in court on what's
called an enforcement, whereyou're trying to have a judge
force somebody to do somethingthat they didn't do that was in
the decree.
If that decree is not very, veryspecific, the judge is going to
look at you essentially and say,I can't help you.
(17:12):
Right.
And there's nothing worse thanhaving a taking a client to
court who's frustrated becausetheir ex-spouse hasn't followed
what essentially they agreed to,and because it just wasn't
drafted clearly or specificallyenough, you can't help them.
SPEAKER_01 (17:26):
Yeah, and that that's why our decrees and our
final orders at uh at our firmat least are 40, 50 pages, is
because we're trying to closeevery loophole.
All right.
Next question, uh, David, whatis a geographic restriction with
regard to uh child custody?
SPEAKER_00 (17:42):
So the geographic restriction in regards to child
custody normally refers to thegeographic area that the person
who gets to designate theprimary residence of the
children, the children have tolive inside that area.
Um the way you could think aboutthis is it doesn't always, I
think some people do get thisconfused, it doesn't necessarily
mean that the other parent orthe parent, the what many people
(18:05):
will call the primary parent, itdoesn't mean that they have to
live inside the restriction.
So for instance, if you wantedto send your kids to boarding
school and not live primarilywith them, you could do that as
long as the boarding school thatyou sent them to was within the
geographic restriction.
So as long as the children liveinside that restriction, um
(18:26):
you're meeting that provision inthe decree.
Typically, the geographicrestriction is the county or the
county and the surroundingcounties where the divorce or
the child custody suit tookplace.
That's the most commongeographic restriction, but it
could be anything.
SPEAKER_01 (18:42):
So let me give let me give an example for uh our
listeners.
So if you live in um Katy, sayyou live in Fort Bend County in
Katy, then the typical provisionwould be you can live in Fort
Bend County or countiescontiguous to Fort Bend County.
Contiguous is a word that wedon't hear a lot, but uh what it
(19:03):
means is touching Fort BendCounty.
And so that would include HarrisCounty and Waller County and
Wharton County and BrisoriaCounty.
And I'm sure I'm missing one,but any cut county that's
touching Fort Bend County, youcan live in there.
And um that can be anextraordinarily large area,
especially where we live, wherefrom one end of Fort Bend County
(19:26):
to um one end of Harris Countycan be like an hour and a half,
two hours drive.
So uh it is a very large area.
Um, it's the size of some smallstates.
Um, so it doesn't necessarily itdoes restrict that primary
parent, um, but it's a prettybig area.
(19:46):
The other thing I wanted totouch on was um will include
what's called lift languagesometimes.
And that's where, say, you'reliving in Fort Bend County and
um the other parent is living inFort Bend County.
Um, but if the non-primaryparent, the non-custodial
(20:07):
parent, moves out of Fort BendCounty and moves out of the
area, then you can move out ofFort Bend County too.
That is a fairly standardprovision.
Uh, I think some family lawyerswould debate whether it's come
the default language.
SPEAKER_00 (20:22):
I I was uh I I can tell you from experience, I've
I've gone I've had to go tocourt on this issue before, and
I my interpretation of what'scalled the Texas Family Law
Practice Manual and somedecisions that I've gotten in
court before, that is notautomatically included unless
you say specifically in youragreement or in your mediated
(20:43):
settlement agreement, we want toinclude lift language.
Yeah.
So I'd agree with that.
Yeah, and I so I would say,especially if you're the parent
who's gonna get to establish theprimary residence, you want that
lift language.
Because without that liftlanguage, what that means is
that you know the other parentcould move to the other side of
the country and for whateverreason or the other side of the
world, right?
(21:03):
And they might, you know, maybejust to stick it to you, they
might want to say, no, you can'tmove, and if you try to, I'm
gonna drag you back to court toforce you to stay there.
Um, so it if you're the primaryparent, you definitely want your
lift land.
SPEAKER_01 (21:16):
And just to bookend this the answer to this
question, the reason why thisgeographic restriction is in
place is because the Texaslegislature, the House and the
Senate, they write the laws,they write the Texas Family
Code, and that's what we use towrite our divorce decrees, and
it's what judges use tointerpret the divorce decrees.
They have made it very clear inthe Texas Family Code that it is
(21:39):
the public policy of the stateof Texas that parents should
live as close together aspossible for the best interest
of their kids.
And the reason why I believethey think that is that you're
going to have a betterrelationship with your child if
you are within close proximity.
You can go to baseball games anduh dance recitals and you can
(22:00):
see them every other weekend orevery Thursday during the school
year.
You can have a closerrelationship if you're closer
together.
SPEAKER_00 (22:07):
Absolutely.
And I would tell you this Ipersonally counsel my clients.
If if we're on a case and itlooks like they're gonna end up
being the non-primary parent,the smaller we can get that
geographic restriction, to me,that's that's to me, that's
probably one of the biggest winswe could get if you're the
non-primary parent, is to shrinkthat area as small as possible.
(22:28):
If you want to be reallyinvolved with your kids, because
it's hard to go to baseballgames or it's hard to go to pick
a kid up from dance practice, oreven to pick kids up after
school if you live 45 minutesaway.
SPEAKER_01 (22:38):
Right.
Absolutely.
All right.
Next question is how does drugtesting impact family law cases?
And this is a rather generalquestion, depending on what type
of family law case it is.
Um, it could be a CPS case,child protective services case.
For the purposes of thisquestion, um, we'll we'll keep
it more general and we'll talkabout child custody cases and um
(23:02):
and divorce cases, but it canhave a pretty serious impact on
a case.
Um, you know, if there is aconcern that there is some sort
of substance abuse, um, whetherit be cocaine or marijuana or
methamphetamine or some sort ofuh synthetic drug, um, the
(23:22):
judges are going to be veryconcerned about that.
And they're going to want toknow about it.
And they're most likely going towant that's going to impact
their decision making in termsof who has primary custody of
the child and what yourpossession times look like.
I will say that it has been myexperience that courts will
(23:44):
treat uh marijuana differentlythan other drugs.
So if you are testing positivefor a low level of marijuana, um
the court may say that, note it,and move on.
I've had courts that have donethat.
There are still courts that takethat very seriously and tell
folks you need to stop it.
(24:05):
Uh I I don't care if you feellike you need this, you're using
this medicinally, um, and uhit's still illegal.
You're you're still this isstill an illegal activity, and I
don't like it.
It really just depends on thecourt.
And if you're in the Houstonarea, you've got 10 courts and
20 plus judges in Harris County,and you've got three courts in
(24:26):
Fort Bend County.
So there's a lot of differencesin how the courts are going to
interpret this.
Um, if you are testing positivefor harder drugs like cocaine or
methanephetamine, or even somelike high levels of the more uh
uh synthetic drugs, um, thejudges are going to be a lot
(24:46):
more concerned about that.
And the way it might impact yourcase is you might lose primary
conservatorship.
Um and the court might say, Ineed to make sure that the kids
are going to be okay whenthey're with you.
And so I'm going to ordersupervised visitation, which is
(25:07):
one of your family members oryour friends is with you at all
times when you're with yourkids, or you're going to some
sort of visitation center, whichwe have in the greater Houston
area, where there's it's afacility.
Um, so not an ideal situation,but 100% they can impact family
law cases.
And and so um just be very waryof that.
SPEAKER_00 (25:28):
Agree with everything that you said.
I would say that a general ruleof thumb is that the larger the
population of your county is,probably the greater chance that
the judge in your case isprobably a little bit more
liberal when it comes tomarijuana use.
And I would say that justgenerally speaking, the smaller
the population in the countythat your case is in, probably
(25:50):
the more likely that they mightbe conservative on that issue is
is just a good general rule ofthumb on that.
Um, but I would say, look, itdepends on the facts of your
case, just like alcohol islegal, right?
If if if two parties come tocourt and one party says that
I'm afraid to leave the kidsalone with the other parent
because they're passed out drunkevery night at 7 p.m., right.
(26:11):
Um, even though it's legal, likethat's an issue.
I would say the same thing withmarijuana.
It probably is a little bit moreof a liberal approach to testing
positive for marijuana.
But if the allegation is thatyou smoke marijuana every day
and you got in a car wreck threeweeks ago because you weren't
paying attention, because youwere high or you were smoking,
(26:32):
or you like to smoke at homewhen the children are there,
those can, you know, those areall going to be pretty serious
issues, I think, for any judgewhen they hear about that kind
of stuff.
SPEAKER_01 (26:42):
Yeah.
And even in CPS cases, I mean,your view might be well, I'm not
smoking marijuana, I'm not doingcocaine when my kids are around.
And so there's never been anydanger to them.
Um, but especially morerecently, the courts have found
that just the very fact thatyou're testing positive for
(27:03):
these harder drugs is anindication that abuse is
present.
They don't have to necessarilylink that your drug use is
happening when you're around thekids.
And so just be aware of that.
You mentioned alcohol uh use orpossible abuse, and uh that can
be an issue too.
And there's ways that the courtwill order folks to monitor
(27:25):
that.
Um, there's something calledsober link that we've had um
clients and opposing parties beordered to use, which is an app
on your phone.
It takes a picture and it useswhatever the algorithm is to
make sure, kind of like a faceID.
Yep, it it makes sure thatyou're the one that's actually
uh blowing into the devicethat's connected to your phone,
(27:47):
and it will give you alertswhenever it wants you to um to
blow into the device, and thenthat information can be
transmitted to the opposingparty or to the lawyers or to
the court, and um, it's a way tomonitor.
So um all of that uh to be saidthe court can order you to do a
(28:10):
drug test.
You don't have to do a drugtest.
The court can't like strap youdown and make you do the drug
test, but it can impact yourcase.
Um, and it will be a presumptivepositive if you don't do it.
SPEAKER_00 (28:23):
I was just about to say, yeah, right.
SPEAKER_01 (28:24):
They're not gonna strap you down, but they're
gonna assume that the worst ifyou don't take it.
And uh it so it's a civil case,they can't make you do it, but
they will assume the worst andum expect an order to come out
of that court, a valid order,which they can do accordingly,
as though you were positive.
So, so so just uh keep that inmind.
SPEAKER_00 (28:45):
One last thing on that um that I've I've had come
up lately has been uhprescription drugs, right?
I think a lot of people thinkthat if they're taking their
prescribed medications and theytest positive for those, then
they don't have to worry at all.
And people ought to understandthat with the new technology
that we have today, hairfollicle tests, nail tests that
(29:06):
they can do, they can figure outwhat the level of those drugs is
in your system.
And a doctor who's schooled inthat area can look at that level
and tell if that level is waymore than the amount that you
should take based on yourprescription.
Right.
So if you're abusing yourproperly prescribed medications
and you think that that's notgonna come up, it can, and you
(29:28):
ought to be real careful withthat.
SPEAKER_01 (29:30):
Yeah.
And and the drug testing hasgotten so good, and there's
there's providers that thecourts use in our area um that
are so knowledgeable and andskilled at doing what they do.
But, you know, I've had opposingparties um that, and I've just
seen on other cases, you know,they'll show up, they're order
(29:52):
to do a hair follicle test, andtheir entire head is shaved.
They will go anywhere in yourbody and they will find the hair
if they can find it.
And if there's no hair that'savailable, they will then cut
your nails and they will uh do adrug test that way.
And if they can't do that, um,then they can, you know, ask the
court to do a blood draw.
(30:12):
So there's there's really nocheat in the system.
Um, if you drink a whole bunchof water to try to dilute your
system, you're gonna get adiluted sample and they're gonna
say, gotta do it again.
You're gonna have to keep goingback.
So there's they they've gottenso good at this, you just uh
important to know.
All right.
The last question uh that wehave for today is what are the
(30:32):
different types of subpoenasused in a family lawsuit?
SPEAKER_00 (30:36):
Uh generally speaking, there's a subpoena,
what's called a subpoena deucesticum, which is a subpoena that
you can issue to other anywitness 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, uh,
(30:59):
to the hearing.
There are some uh all the othertypes of subpoenas that aren't
deuces teacums are essentially asubpoena that commands somebody
to either appear, often at yourlaw office or at a location, to
either give testimony on therecord, a deposition, often an
oral deposition, um that can beby written question or it can
literally be live, like aregular deposition, um, or just
(31:22):
to produce documents or items ata location.
So if we're in a case and wedon't really want the Chase
Bank, we need Chase Bank recordsand we need them to make sure
that they're accurate.
We don't really want Chase Bankto show up at our trial to
testify that here's the bankrecords and they're accurate.
Um, what we want them to do isjust to certify that they're
(31:42):
accurate and provide the recordsto us and to our law office.
So we might issue a subpoena toappear at our law office by a
date certain to provide thoserecords.
SPEAKER_01 (31:52):
Okay.
And the worst thing that you cando is if you receive a subpoena,
is to do absolutely nothing atall.
Because there are consequencesif you don't file a subpoena,
even if it's just signed by thelawyer, or if it's signed by the
court, if it's signed by thejudge, doesn't matter.
If you just ignore a subpoenaand you don't show up, uh the
judge could order you held incontempt, or the judge could
(32:14):
order you to be arrested and bebrought to court.
You do not want that.
Willingly come to court, explainwhat your objection is.
You can even make that objectionon the day that the subpoena is
due when you're in court, butum, don't just ignore it.
Um that's a recipe for adisaster.
And and if you do have a concernwith it, we've got folks all the
(32:35):
time that they say, Hey, I can'tproduce these documents within
the next week.
Can you give me two weeks?
And most of the time, unlessthere's some type of hearing or
reason that we need it soonerthan that, if we will say yes.
Because if we want to get thoserecords and we want them to be
complete and accurate, and if wecan give an extension, we're
(32:56):
gonna give it.
So, so just talk to the lawyer.
Most of the time, the lawyersare going to be uh reasonable
with regard to that.
At least if you call our office,we will be.
If we if we need the recordssooner than that, we'll explain
it to you.
But don't it don't ignore it andand try to talk to folks and get
it worked out ahead of time.
The other thing is sometimes ifwe order you to produce some
(33:18):
sort of records of a certaintype and time and place, and you
say, Hey, I can't make it atthat time and place, we'll say,
Well, when can you get me therecords and can you sign this
form called a business recordsaffidavit?
If you sign off on that, wedon't need you to show up
anywhere.
We don't need you to show up incourt, we don't need to show up
in our office.
You can just sign that form andand get us the records that way.
So work with us um and and don'tjust ignore a subpoena.
SPEAKER_00 (33:41):
Absolutely.
95% of the time when I issuesubpoenas, I'm I'm looking for
records and I just need theentity that makes the record to
certify that they're accuratethrough the business records
affidavit.
Yeah.
So and and usually we'reflexible on that time frame.
So to you're you're exactlyright about reach out to whoever
issued the subpoena and they'llusually work with you.
SPEAKER_01 (34:00):
All right.
Well, David, thanks for joiningme on our uh first ever episode
where we just took kind of thesegrab bag burning questions and
we answered them.
Uh, if anybody else has otherfrequently asked questions, you
can go to our website.
We've got a resources tab.
If you click on the resourcestab at the top or you click on
the blog at the top, we've got anumber of articles with all
(34:21):
types of information on familylaw and estate planning and
probate.
Uh, so go to our website atfamily lawyerkatie.com.
Uh if you'd like to do aconsultation or ask some
additional questions about yoursituation to either me or David,
you can call us at 832-315-5494.
(34:42):
Uh, David leads our office atHunt Law Firm in League City.
I'm the managing attorney basedout of the Katy office, um, but
I also do consultations inSugarland and Cyprus.
Uh, call us up and we'll uh beable to help you out.
My name is Alex Hunt for DavidAdams.
Uh thanks for joining us, anduntil next time, we'll see you
(35:02):
then.
Welcome back to the Texas Family Lawyer Podcast.
Today I am joined by attorneyDavid Adams.
Welcome back, David.
Thank you.
All right.
So today we're going to dosomething a little bit
different.
We usually will uh handle aparticular topic in Texas family
law, but we've gotten a numberof questions from listeners or
viewers that don't really fitinto a particular topic area and
(00:32):
they're not quite large enoughto be an entire podcast.
So we have compiled all of theminto seven burning questions
that our clients uh or ourviewers or our listeners have.
And we're just going to run downthe list and we're going to jump
right into it.
Um, so number one, is it illegalto spy on your spouse in Texas?
What do you say, David?
SPEAKER_00 (00:53):
Is it illegal to spy on your spouse?
Well, like a lot of things inthe law, it probably depends on
how we define spy.
Um, there are, you know, Texasis um somewhat famously a
one-party consent recordingstate, which means that you're
allowed to record either audioor visual recordings um of
(01:17):
parties to a conversation aslong as one of the parties to
that conversation consents.
So if you're recording aconversation between you and
your spouse and you consent tothat recording, that's okay.
What you can't do is potentiallyrecord a conversation between
two other people when you're nota party to that conversation.
(01:39):
Now, there I know there havebeen some legislative changes in
the last couple of years aroundtracking devices.
SPEAKER_01 (01:45):
Well, before you get to that, let me ask you about
the the conversations, because acommon situation that sometimes
we'll deal with is um arecording device is placed with
the child, and then the childgoes to the other spouse or the
other parents' home, and they'llsay, Well, the child is an
(02:06):
extension of me, and so it's asif I were there.
Would you recommend doing that?
SPEAKER_00 (02:12):
My advice to clients would be don't do that.
And the reason I would say thatis because I think that's a bit
of a gray area in the law, and Ithink the particular judge that
you end up front in in front ofcould probably go either way on
that one because it is true thatum as a as a parent to a child,
you're allowed to consentessentially for that child to do
(02:32):
a variety of different things.
So could a judge look at thatsituation and say, you know, the
other parent is an extension ofthe child, and so they're
consenting to the conversation,and even though they weren't
there, it's okay.
That's possible.
Okay.
Um, but I would definitely notencourage clients to do that.
All right.
So let's shift to trackingdevices.
Yeah, you know, especiallytoday, um, you know, air tags
(02:56):
and different devices areeverywhere.
A lot of people use that kind ofstuff.
Um, a lot of uh people sometimeshave tracking devices, they
don't really think about it,like Life 360 applications or
phones.
Um there is new uh law withinthe last couple of years talking
essentially saying that you'renot allowed to track other
(03:17):
people without their consent.
So one of the things that willpopularly come up in a divorce
is you know, before you file fordivorce, one spouse might think
the other spouse is cheating.
They want to confirm or denythat, and so they might put an
air tag on a spouse's vehicle,see where they're going.
Um, my understanding, and again,this is a criminal statute.
(03:38):
I'm not a criminal lawyer, butmy understanding of the criminal
statute around this is that thatkind of behavior without the
other spouse's consent ispotentially criminal and
illegal.
SPEAKER_01 (03:49):
Yeah, and that's the caveat to all of this is that if
you've got consent, you know,say you've got two spouses, for
example, my wife and I, we bothhave Apple devices, and so we
have our fine mice so that waywe can, you know, see where we
are.
Um if you've got consent, that'stotally fine.
This is simply when there is noconsent, and usually when you're
(04:10):
in the middle of a divorce oryour your marriage is breaking
down, there's typically notconsent anymore.
And um, I wouldn't rely on yourspouse affirmatively telling you
in writing or verbally, youknow, I no longer consent to
this anymore.
There should be an impliedunderstanding that if you're if
you have gone from a happycouple where there was consent
(04:33):
to a divorcing couple, that theconsent's probably not there
anymore.
And so to err on the side ofcaution.
Um, and there is a differencebetween like the live 360 apps
and um things like placing amagnetic tracking device on the
bottom of a vehicle or somethinglike that.
That is kind of a more egregiousuh display of spying on your
(04:58):
spouse that I think the judge isgoing to treat more harshly.
Um, and you know, like you said,these are criminal statutes,
they're not in the family code,but there are both state and
federal criminal laws that areat play here.
So before you think about doingsomething like this, please run
it by your lawyer so that wayyou don't run afoul of any
(05:21):
federal or state law.
SPEAKER_00 (05:22):
And I would also say if you are somebody out there
who is contemplating divorce ormight think divorce is on the
horizon and you have done thisalready, my advice to you would
be don't tell your spouse that,right?
At least, at least not yet,right?
I mean, I'll have a situationwhere a client might come to me
and say, I have all thisinformation I recorded or I've
(05:44):
tracked my spouse, I confrontedthem, you know, didn't believe
them, and so here I am.
Well, now your spouse knows thatyou 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'mgonna pursue criminal charges
against you for what you alreadytold me that you did.
(06:06):
So I would definitely say ifyou've done that already, to the
extent that you can, as yousaid, have that conversation
with your lawyer before you everhave that conversation or let
your other spouse know that youmight have done something like
that.
SPEAKER_01 (06:18):
Yeah.
And and the bottom line is whenin doubt, don't do it.
Um, and when you do come to alawyer, we have professionals,
private investigators that wework with that if you need to
figure something out, you needto find something out, you need
to follow somebody, don't do ityourself.
There's a process for this.
Come and talk to us and we'llwalk you through it.
Absolutely.
Next question uh out of statetravel, if you have joint
(06:41):
custody, do I need my co-parentspermission to travel out of
state?
SPEAKER_00 (06:47):
Unless there's something special in your
decree, I often I've I have veryinfrequently seen custody orders
or decrees of divorce wherethere's a provision that says
that you've got to notify theother parent in order to travel
out of state.
Now, most decrees will say thatyou have to notify the other
parent if you're gonna travelout of the country, right?
(07:08):
That's that's a very commonprovision.
And often to travel out of thecountry, the uh federal
government requires you, inorder to get on a plane or
sometimes even a cruise ship, tohave special forms with the
other parent's consent, whetherit's in your decree or not.
Um, but you want to essentiallyyou want to look at your decree.
If there's not somethingspecific in the order that says
(07:28):
that you've got to do that, nowif it says if you travel out of
the state, you've got to let theother parent know, then well,
that's exactly what you got todo.
But that's not a standardprovision.
SPEAKER_01 (07:39):
And and bottom line, always look at your decree.
Your decree always governs.
We're just talking aboutstandard provisions and uh
always talk to your lawyer andand they'll make sure that they
can sit straight and let youknow.
SPEAKER_00 (07:52):
Absolutely.
There, you know, there are a lotof times injunctions that get
filed at the beginning of thecase that some counties, I can
think of uh a local county here,Fort Penn County, where there's
a provision in there that saysthat you're not allowed to
change the child's primaryresidence outside the state of
Texas while the lawsuit ispending, which is not the same
thing as taking your kid on aspring break vacation.
SPEAKER_01 (08:13):
Yeah.
Going to Disney World isdifferent from taking uh your
child to Florida to move there.
Right.
And that's different than goingto uh Disney World Paris.
Right.
All of those things are going tohave different provisions
associated with them.
All right.
Next question.
Um what is an amicus attorney?
SPEAKER_00 (08:33):
So an amicus attorney is an attorney that is
uh essentially appointed by thecourt to represent the best
interest of the child.
Um there are some other types ofattorneys, such as an ad
lightum, who literally representthe child in these situations.
(08:53):
But that's not what an amicusattorney actually does.
Uh they they they truly arethere to represent quote unquote
the best interest of the child.
I think a lot of judges look atamicus attorneys like they are
somewhat an extension of thecourt, a kind of more neutral
third party who can go in andand again try to ascertain the
(09:15):
best interest of the child asopposed to the lawyers who are
already on a case who are goingto be inherently biased towards
their clients.
Um one thing I think peopledon't understand about the
amicus attorney, which is true,is that an amicus attorney,
though, is just an attorney.
And so, you know, the only rolethat they only only things that
they can in practice do that'sreally gonna change the outcome
(09:36):
of a case if your case ends upin trial is they're gonna have
the ability to call witnesses,they're gonna have the ability
to examine those witnesses onthe stand, they're gonna have
the ability to offer evidence,they're gonna have the ability
to make a closing argument.
Um, but that's it, right?
You know, they don't they don'tget to write a report like in
say a custody evaluation.
They don't net they don't get tomeet privately with the judge,
(09:56):
or at least they shouldn't, andhave a conversation about that.
You know, here's what I think.
Um, they're just another lawyerthat's there, hopefully to
represent the best interest ofthe child.
SPEAKER_01 (10:05):
Yeah, and that closing argument, that's going
to really be the only time thatan amicus attorney, if you've
got a trial, is going to be ableto um give an indication of what
they feel whether the childshould be placed with one parent
or the other, or there should besome sort of special provisions.
Otherwise, the way that theyconvey their message during
(10:26):
testimony is just through askingquestions.
And so maybe the jury or thejudge can get an idea of kind of
where they're coming from andwhat their thought process is
depending on the types ofquestions they're asking, um,
whether they're more friendly toa witness or uh they're more
acrimonious towards them.
But um, an amicus attorney willhave some uh, you know, the
(10:50):
ability to go and visit with thechild, but it isn't like they
can visit with the child andthen report back to the judge.
That's exactly this is what Italk to the kid about, this is
what the kids need, you know.
Um, so I think that's a commonmisconception that a lot of uh
our our clients have.
The other thing is, you know, wetalk about this quite frequently
(11:11):
when we're staffing cases, isbringing on an amicus attorney
can be risky.
Um it it lessens and mitigatesthe risk when you know who the
amicus attorney is going to be.
But if you're just going to thecourt and saying, we need an
amicus attorney, we can't agreeon who it's going to be.
You don't know who that person'sgonna be.
You don't know their skill set,you don't know um how much time
(11:34):
they can commit to the case, youdon't know if they're gonna be
any good or not.
Um, you don't know if they'vegot a certain bias.
And so you're taking on a bigrisk because you're letting go
as the trial attorney of alittle bit of control of the
case.
You're interjecting uh a thirdattorney that might have a
(11:55):
different feeling, and you mightend up at trial on two against
one, your spouse and the amicusattorney versus you.
But like all risk, you might endup on the side of the amicus
attorney and then you're twoagainst one and the other side.
Um, and you might also have anamicus attorney that kind of
plays it a little bit more downthe middle.
(12:16):
Some of the benefits of anamicus attorney are that it it
allows the child to feel likethey have some sort of voice in
the process because they're ableto talk to somebody who should
be on their side, um, eventhough they are tasked with
representing the best interestsof the child.
They should be listening to thechild and voicing their
concerns.
Um, and a lot of times an amicusattorney is tasked by the court
(12:40):
with not just recommendingwhat's best for the child, but
trying to reach an out-of-courtagreement.
SPEAKER_00 (12:47):
I was just about to say, I I think one of the
biggest hope, hopefully, rolesthey'll play is in settlement.
I I think it's I think it'susually pretty helpful in at
mediation for final orders orleading up to mediation for
final orders for the amicus tobe able to sit down and tell one
of the parties, look, here'shere's which way I'm leaning and
put some pressure on them tounderstand to the point that you
(13:07):
made earlier that look, if weshow up at trial, this is
essentially going to be a twoagainst one.
I'm more on mom's side, or I'mmore on dad's side, or here's
what I think is in the bestinterest of your child.
And uh that can be that can bepowerful.
Right.
SPEAKER_01 (13:22):
All right, very good.
Uh, next question is uh yourspouse 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 nameoff?
Um, talk a little bit about thisin the context of a house.
Typically, if we have a housethat's in both of the parties'
(13:43):
names and um just one or both ofthe parties have their name on
the mortgage, say the wife iskeeping the house, the mortgage,
the husband has his name on it.
Um, there are certain documentsthat we can file in the real
property records to make itclear that the wife is assuming
that uh mortgage and she has anobligation to pay.
(14:05):
And if she doesn't, then thehusband can go and foreclose on
the house and sell the house andum protect his property uh
interest, protect his credit ifshe's not paying the mortgage.
Those protections don't existwith regard to vehicles.
And so my advice is always ifyou are concerned that the
(14:26):
person who is keeping thevehicle is not going to pay the
loan that's in your name, you'vegot it get some sort of
agreement that they're gonnaeither sell that vehicle or
they've got to refinance it andget your name off of it because
you just don't have the sameprotections.
And if they don't pay it, you'rekind of out of luck.
The other thing to consider,too, is that if you are going to
(14:49):
make a big purchase later or youneed to buy a house and you need
to get a mortgage, um,debt-to-income ratio is
something that loan companiesand mortgage companies will
consider, even though yourex-spouse has that vehicle and
they're paying the note on it,still on your credit because
it's in your name.
(15:10):
And so it's going to counttowards your debt to income
ratio.
It could mean that you're not,if you're kind of on the cusp of
that debt to income ratio for amortgage 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 thatmortgage.
SPEAKER_00 (15:25):
That's I agree 100% with everything you just said.
My advice would be because ofall of that, if you find
yourself in this situation, youwant to make a provision, which
you can put in your final decreerelated to this to make it clear
that your other spouse has acertain amount of time to
refinance the auto loan.
And if they don't, I would saythe average one would probably
(15:48):
90 days.
Um, if they can't do that, thenthe vehicle's got to be sold.
And so that way, at leastthere's a fixed amount of time
that's hopefully shorter betweenwhen you're gonna get divorced
and when they've got torefinance that or that'll be out
of your name.
So to your point, if you want togo get another loan, you'll have
that ability.
SPEAKER_01 (16:04):
Yeah, and a lot of times people will have a page or
two of instructions on how avehicle is going to be sold, and
we'll hear from either ourclient or the other side of why
is this so complicated?
Um, it's because we deal in thisworld where of worst-case
scenarios.
And so if somebody um doesn'trefinance, then we need to have
(16:28):
a provision for that.
And if then they are supposed tosell the vehicle, but they don't
go and sell the vehicle, we needto have a provision for what
happens then.
Does the vehicle revert back tothe other spouse?
And so what we try to do isclose as many loopholes as
possible.
We can't close every possibleloophole.
There are going to becontingencies that will come up
(16:49):
that we can't deal with, but wetry to close as many as we
possibly can.
SPEAKER_00 (16:52):
That's right.
And you know from from yourpractice that when you when you
have the worst case scenario andyou end up in court on what's
called an enforcement, whereyou're trying to have a judge
force somebody to do somethingthat they didn't do that was in
the decree.
If that decree is not very, veryspecific, the judge is going to
look at you essentially and say,I can't help you.
(17:12):
Right.
And there's nothing worse thanhaving a taking a client to
court who's frustrated becausetheir ex-spouse hasn't followed
what essentially they agreed to,and because it just wasn't
drafted clearly or specificallyenough, you can't help them.
SPEAKER_01 (17:26):
Yeah, and that that's why our decrees and our
final orders at uh at our firmat least are 40, 50 pages, is
because we're trying to closeevery loophole.
All right.
Next question, uh, David, whatis a geographic restriction with
regard to uh child custody?
SPEAKER_00 (17:42):
So the geographic restriction in regards to child
custody normally refers to thegeographic area that the person
who gets to designate theprimary residence of the
children, the children have tolive inside that area.
Um the way you could think aboutthis is it doesn't always, I
think some people do get thisconfused, it doesn't necessarily
mean that the other parent orthe parent, the what many people
(18:05):
will call the primary parent, itdoesn't mean that they have to
live inside the restriction.
So for instance, if you wantedto send your kids to boarding
school and not live primarilywith them, you could do that as
long as the boarding school thatyou sent them to was within the
geographic restriction.
So as long as the children liveinside that restriction, um
(18:26):
you're meeting that provision inthe decree.
Typically, the geographicrestriction is the county or the
county and the surroundingcounties where the divorce or
the child custody suit tookplace.
That's the most commongeographic restriction, but it
could be anything.
SPEAKER_01 (18:42):
So let me give let me give an example for uh our
listeners.
So if you live in um Katy, sayyou live in Fort Bend County in
Katy, then the typical provisionwould be you can live in Fort
Bend County or countiescontiguous to Fort Bend County.
Contiguous is a word that wedon't hear a lot, but uh what it
(19:03):
means is touching Fort BendCounty.
And so that would include HarrisCounty and Waller County and
Wharton County and BrisoriaCounty.
And I'm sure I'm missing one,but any cut county that's
touching Fort Bend County, youcan live in there.
And um that can be anextraordinarily large area,
especially where we live, wherefrom one end of Fort Bend County
(19:26):
to um one end of Harris Countycan be like an hour and a half,
two hours drive.
So uh it is a very large area.
Um, it's the size of some smallstates.
Um, so it doesn't necessarily itdoes restrict that primary
parent, um, but it's a prettybig area.
(19:46):
The other thing I wanted totouch on was um will include
what's called lift languagesometimes.
And that's where, say, you'reliving in Fort Bend County and
um the other parent is living inFort Bend County.
Um, but if the non-primaryparent, the non-custodial
(20:07):
parent, moves out of Fort BendCounty and moves out of the
area, then you can move out ofFort Bend County too.
That is a fairly standardprovision.
Uh, I think some family lawyerswould debate whether it's come
the default language.
SPEAKER_00 (20:22):
I I was uh I I can tell you from experience, I've
I've gone I've had to go tocourt on this issue before, and
I my interpretation of what'scalled the Texas Family Law
Practice Manual and somedecisions that I've gotten in
court before, that is notautomatically included unless
you say specifically in youragreement or in your mediated
(20:43):
settlement agreement, we want toinclude lift language.
Yeah.
So I'd agree with that.
Yeah, and I so I would say,especially if you're the parent
who's gonna get to establish theprimary residence, you want that
lift language.
Because without that liftlanguage, what that means is
that you know the other parentcould move to the other side of
the country and for whateverreason or the other side of the
world, right?
(21:03):
And they might, you know, maybejust to stick it to you, they
might want to say, no, you can'tmove, and if you try to, I'm
gonna drag you back to court toforce you to stay there.
Um, so it if you're the primaryparent, you definitely want your
lift land.
SPEAKER_01 (21:16):
And just to bookend this the answer to this
question, the reason why thisgeographic restriction is in
place is because the Texaslegislature, the House and the
Senate, they write the laws,they write the Texas Family
Code, and that's what we use towrite our divorce decrees, and
it's what judges use tointerpret the divorce decrees.
They have made it very clear inthe Texas Family Code that it is
(21:39):
the public policy of the stateof Texas that parents should
live as close together aspossible for the best interest
of their kids.
And the reason why I believethey think that is that you're
going to have a betterrelationship with your child if
you are within close proximity.
You can go to baseball games anduh dance recitals and you can
(22:00):
see them every other weekend orevery Thursday during the school
year.
You can have a closerrelationship if you're closer
together.
SPEAKER_00 (22:07):
Absolutely.
And I would tell you this Ipersonally counsel my clients.
If if we're on a case and itlooks like they're gonna end up
being the non-primary parent,the smaller we can get that
geographic restriction, to me,that's that's to me, that's
probably one of the biggest winswe could get if you're the
non-primary parent, is to shrinkthat area as small as possible.
(22:28):
If you want to be reallyinvolved with your kids, because
it's hard to go to baseballgames or it's hard to go to pick
a kid up from dance practice, oreven to pick kids up after
school if you live 45 minutesaway.
SPEAKER_01 (22:38):
Right.
Absolutely.
All right.
Next question is how does drugtesting impact family law cases?
And this is a rather generalquestion, depending on what type
of family law case it is.
Um, it could be a CPS case,child protective services case.
For the purposes of thisquestion, um, we'll we'll keep
it more general and we'll talkabout child custody cases and um
(23:02):
and divorce cases, but it canhave a pretty serious impact on
a case.
Um, you know, if there is aconcern that there is some sort
of substance abuse, um, whetherit be cocaine or marijuana or
methamphetamine or some sort ofuh synthetic drug, um, the
(23:22):
judges are going to be veryconcerned about that.
And they're going to want toknow about it.
And they're most likely going towant that's going to impact
their decision making in termsof who has primary custody of
the child and what yourpossession times look like.
I will say that it has been myexperience that courts will
(23:44):
treat uh marijuana differentlythan other drugs.
So if you are testing positivefor a low level of marijuana, um
the court may say that, note it,and move on.
I've had courts that have donethat.
There are still courts that takethat very seriously and tell
folks you need to stop it.
(24:05):
Uh I I don't care if you feellike you need this, you're using
this medicinally, um, and uhit's still illegal.
You're you're still this isstill an illegal activity, and I
don't like it.
It really just depends on thecourt.
And if you're in the Houstonarea, you've got 10 courts and
20 plus judges in Harris County,and you've got three courts in
(24:26):
Fort Bend County.
So there's a lot of differencesin how the courts are going to
interpret this.
Um, if you are testing positivefor harder drugs like cocaine or
methanephetamine, or even somelike high levels of the more uh
uh synthetic drugs, um, thejudges are going to be a lot
(24:46):
more concerned about that.
And the way it might impact yourcase is you might lose primary
conservatorship.
Um and the court might say, Ineed to make sure that the kids
are going to be okay whenthey're with you.
And so I'm going to ordersupervised visitation, which is
(25:07):
one of your family members oryour friends is with you at all
times when you're with yourkids, or you're going to some
sort of visitation center, whichwe have in the greater Houston
area, where there's it's afacility.
Um, so not an ideal situation,but 100% they can impact family
law cases.
And and so um just be very waryof that.
SPEAKER_00 (25:28):
Agree with everything that you said.
I would say that a general ruleof thumb is that the larger the
population of your county is,probably the greater chance that
the judge in your case isprobably a little bit more
liberal when it comes tomarijuana use.
And I would say that justgenerally speaking, the smaller
the population in the countythat your case is in, probably
(25:50):
the more likely that they mightbe conservative on that issue is
is just a good general rule ofthumb on that.
Um, but I would say, look, itdepends on the facts of your
case, just like alcohol islegal, right?
If if if two parties come tocourt and one party says that
I'm afraid to leave the kidsalone with the other parent
because they're passed out drunkevery night at 7 p.m., right.
(26:11):
Um, even though it's legal, likethat's an issue.
I would say the same thing withmarijuana.
It probably is a little bit moreof a liberal approach to testing
positive for marijuana.
But if the allegation is thatyou smoke marijuana every day
and you got in a car wreck threeweeks ago because you weren't
paying attention, because youwere high or you were smoking,
(26:32):
or you like to smoke at homewhen the children are there,
those can, you know, those areall going to be pretty serious
issues, I think, for any judgewhen they hear about that kind
of stuff.
SPEAKER_01 (26:42):
Yeah.
And even in CPS cases, I mean,your view might be well, I'm not
smoking marijuana, I'm not doingcocaine when my kids are around.
And so there's never been anydanger to them.
Um, but especially morerecently, the courts have found
that just the very fact thatyou're testing positive for
(27:03):
these harder drugs is anindication that abuse is
present.
They don't have to necessarilylink that your drug use is
happening when you're around thekids.
And so just be aware of that.
You mentioned alcohol uh use orpossible abuse, and uh that can
be an issue too.
And there's ways that the courtwill order folks to monitor
(27:25):
that.
Um, there's something calledsober link that we've had um
clients and opposing parties beordered to use, which is an app
on your phone.
It takes a picture and it useswhatever the algorithm is to
make sure, kind of like a faceID.
Yep, it it makes sure thatyou're the one that's actually
uh blowing into the devicethat's connected to your phone,
(27:47):
and it will give you alertswhenever it wants you to um to
blow into the device, and thenthat information can be
transmitted to the opposingparty or to the lawyers or to
the court, and um, it's a way tomonitor.
So um all of that uh to be saidthe court can order you to do a
(28:10):
drug test.
You don't have to do a drugtest.
The court can't like strap youdown and make you do the drug
test, but it can impact yourcase.
Um, and it will be a presumptivepositive if you don't do it.
SPEAKER_00 (28:23):
I was just about to say, yeah, right.
SPEAKER_01 (28:24):
They're not gonna strap you down, but they're
gonna assume that the worst ifyou don't take it.
And uh it so it's a civil case,they can't make you do it, but
they will assume the worst andum expect an order to come out
of that court, a valid order,which they can do accordingly,
as though you were positive.
So, so so just uh keep that inmind.
SPEAKER_00 (28:45):
One last thing on that um that I've I've had come
up lately has been uhprescription drugs, right?
I think a lot of people thinkthat if they're taking their
prescribed medications and theytest positive for those, then
they don't have to worry at all.
And people ought to understandthat with the new technology
that we have today, hairfollicle tests, nail tests that
(29:06):
they can do, they can figure outwhat the level of those drugs is
in your system.
And a doctor who's schooled inthat area can look at that level
and tell if that level is waymore than the amount that you
should take based on yourprescription.
Right.
So if you're abusing yourproperly prescribed medications
and you think that that's notgonna come up, it can, and you
(29:28):
ought to be real careful withthat.
SPEAKER_01 (29:30):
Yeah.
And and the drug testing hasgotten so good, and there's
there's providers that thecourts use in our area um that
are so knowledgeable and andskilled at doing what they do.
But, you know, I've had opposingparties um that, and I've just
seen on other cases, you know,they'll show up, they're order
(29:52):
to do a hair follicle test, andtheir entire head is shaved.
They will go anywhere in yourbody and they will find the hair
if they can find it.
And if there's no hair that'savailable, they will then cut
your nails and they will uh do adrug test that way.
And if they can't do that, um,then they can, you know, ask the
court to do a blood draw.
(30:12):
So there's there's really nocheat in the system.
Um, if you drink a whole bunchof water to try to dilute your
system, you're gonna get adiluted sample and they're gonna
say, gotta do it again.
You're gonna have to keep goingback.
So there's they they've gottenso good at this, you just uh
important to know.
All right.
The last question uh that wehave for today is what are the
(30:32):
different types of subpoenasused in a family lawsuit?
SPEAKER_00 (30:36):
Uh generally speaking, there's a subpoena,
what's called a subpoena deucesticum, which is a subpoena that
you can issue to other anywitness 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, uh,
(30:59):
to the hearing.
There are some uh all the othertypes of subpoenas that aren't
deuces teacums are essentially asubpoena that commands somebody
to either appear, often at yourlaw office or at a location, to
either give testimony on therecord, a deposition, often an
oral deposition, um that can beby written question or it can
literally be live, like aregular deposition, um, or just
(31:22):
to produce documents or items ata location.
So if we're in a case and wedon't really want the Chase
Bank, we need Chase Bank recordsand we need them to make sure
that they're accurate.
We don't really want Chase Bankto show up at our trial to
testify that here's the bankrecords and they're accurate.
Um, what we want them to do isjust to certify that they're
(31:42):
accurate and provide the recordsto us and to our law office.
So we might issue a subpoena toappear at our law office by a
date certain to provide thoserecords.
SPEAKER_01 (31:52):
Okay.
And the worst thing that you cando is if you receive a subpoena,
is to do absolutely nothing atall.
Because there are consequencesif you don't file a subpoena,
even if it's just signed by thelawyer, or if it's signed by the
court, if it's signed by thejudge, doesn't matter.
If you just ignore a subpoenaand you don't show up, uh the
judge could order you held incontempt, or the judge could
(32:14):
order you to be arrested and bebrought to court.
You do not want that.
Willingly come to court, explainwhat your objection is.
You can even make that objectionon the day that the subpoena is
due when you're in court, butum, don't just ignore it.
Um that's a recipe for adisaster.
And and if you do have a concernwith it, we've got folks all the
(32:35):
time that they say, Hey, I can'tproduce these documents within
the next week.
Can you give me two weeks?
And most of the time, unlessthere's some type of hearing or
reason that we need it soonerthan that, if we will say yes.
Because if we want to get thoserecords and we want them to be
complete and accurate, and if wecan give an extension, we're
(32:56):
gonna give it.
So, so just talk to the lawyer.
Most of the time, the lawyersare going to be uh reasonable
with regard to that.
At least if you call our office,we will be.
If we if we need the recordssooner than that, we'll explain
it to you.
But don't it don't ignore it andand try to talk to folks and get
it worked out ahead of time.
The other thing is sometimes ifwe order you to produce some
(33:18):
sort of records of a certaintype and time and place, and you
say, Hey, I can't make it atthat time and place, we'll say,
Well, when can you get me therecords and can you sign this
form called a business recordsaffidavit?
If you sign off on that, wedon't need you to show up
anywhere.
We don't need you to show up incourt, we don't need to show up
in our office.
You can just sign that form andand get us the records that way.
So work with us um and and don'tjust ignore a subpoena.
SPEAKER_00 (33:41):
Absolutely.
95% of the time when I issuesubpoenas, I'm I'm looking for
records and I just need theentity that makes the record to
certify that they're accuratethrough the business records
affidavit.
Yeah.
So and and usually we'reflexible on that time frame.
So to you're you're exactlyright about reach out to whoever
issued the subpoena and they'llusually work with you.
SPEAKER_01 (34:00):
All right.
Well, David, thanks for joiningme on our uh first ever episode
where we just took kind of thesegrab bag burning questions and
we answered them.
Uh, if anybody else has otherfrequently asked questions, you
can go to our website.
We've got a resources tab.
If you click on the resourcestab at the top or you click on
the blog at the top, we've got anumber of articles with all
(34:21):
types of information on familylaw and estate planning and
probate.
Uh, so go to our website atfamily lawyerkatie.com.
Uh if you'd like to do aconsultation or ask some
additional questions about yoursituation to either me or David,
you can call us at 832-315-5494.
(34:42):
Uh, David leads our office atHunt Law Firm in League City.
I'm the managing attorney basedout of the Katy office, um, but
I also do consultations inSugarland and Cyprus.
Uh, call us up and we'll uh beable to help you out.
My name is Alex Hunt for DavidAdams.
Uh thanks for joining us, anduntil next time, we'll see you
(35:02):
then.
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