It happens to family lawyers all the time.  A new client comes in to meet with us for an initial consultation and tells us that his or her spouse controlled all of the money and assets.  The new client is panicked, because he or she has no idea what the parties own, what the parties’ liabilities are, or even where the majority of the parties’ accounts are held.

In the normal case, most Texas family lawyers know what to do – we ask the opposing party to fill out a sworn inventory and appraisement of all of the parties’ assets and liabilities.  We serve written discovery requests and, if necessary, we subpoena financial institutions to obtain account statements.

But Texas is consistently one of the fastest growing states in the nation with approximately 140,000 new domestic migrants and 82,000 international migrants moving here each year.[1]  Obtaining financial records is relatively straightforward when you are serving a subpoena on the local bank that holds your client’s accounts, but what happens when you learn that assets are held abroad?  From bank and brokerage accounts to business entities, it is increasingly likely that the family law practitioner will need to obtain discovery internationally.  So what do we do when we learn there are assets held in Mexico or the United Kingdom and the opposing party says they do not have documents regarding those assets in their possession, custody, or control?French bulldog with magnifying glass

The United States and sixty other nations are signatories to the 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, more commonly referred to as the Hague Evidence Convention.[2]  The Convention’s stated purpose is to “improve mutual judicial cooperation in civil or commercial matters”[3] and to “enlarge the devices for the taking of evidence.”[4]  The Convention sets forth a process for obtaining pre-trial discovery from contracting nations – litigants can:  1) request the US Court submit a Letter of Request to obtain evidence located in a contracting state; and 2) use US diplomatic or consular agents located in the contracting state to take depositions (but not obtain documents) in the contracting state.

In the family law context, litigants are most likely to use Letters of Request to secure the production or inspection of documents or to obtain access to real or personal property so the property can be inspected.  In short, a litigant will ask the Court in the US to submit a Letter of Request setting forth the nature of the pending proceeding and describing the evidence requested.  The Letter of Request will then be transmitted to the designated central authority of the contracting state, who will execute the request in accordance with the laws of the contracting state.

The Hague Evidence Convention is not perfect – many signatories to the Convention signed with reservations that limit the types of pre-trial discovery that may be conducted – practitioners should be sure to determine whether the country where evidence is located entered into the Convention with reservations.  Obtaining evidence under the Convention can also be time consuming, and litigants will want to explore all avenues for obtaining the evidence to determine whether it may be secured using the liberal discovery rules of the US judicial system.  However, the Convention provides Texas lawyers with an additional and important tool for conducting discovery in an increasingly international and diverse state.


[1] https://www.census.gov/library/stories/2017/08/texas-population-trends.html.

[2] https://www.hcch.net/en/instruments/conventions/full-text/?cid=82.

[3] https://www.hcch.net/en/instruments/conventions/full-text/?cid=82.

[4] Ph. W. Amram, Explanatory Report on the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, https://assets.hcch.net/upload/expl20e.pdf.

As a family law attorney and mom, I am frequently approached by custodial parents wanting to know what they can do when the non-custodial parent does not exercise parenting time. This issue raises obvious questions such as whether it is fair for the custodial parent to have to pay a babysitter when the other parent is supposed to be caring for the kids; and can (and should) a court force a parent to see the kids when that parent does not want to see them? Let’s be honest. While most parents enjoy as much time as they can get with their kids, even the best mother or father needs a break sometimes.

Courts offer little help answering these questions. Judges are simply not in the business of forcing parents to exercise parenting time and there is no legal mechanism that allows a judge to force a parent to spend time with the kids. This is because parenting time is a right, not a duty, under Texas law.  So what is the custodial parent to do?

The best time to fix the problem is before any final court order gets signed.  If you know exercising possession might be a problem, then consider requesting one of the following provisions in your order:

More Child Support.  A custodial parent who will be caring for the kids the majority of the time can ask that the order award him or her support in excess of Texas’ child support guidelines. The amount of time a custodial parent has the kids is a factor the judge can consider in awarding support in excess of Texas’ child support guidelines.

Penalties.  A custodial parent can ask that the order include the imposition of a daily penalty as “additional child support” if the other parent fails to exercise parenting time. This penalty will not only act as a deterrent but will provide additional money from which to cover child care expenses in the event of a no-show.

Less Possession.  If a custodial parent’s main concern is the inability to make plans for fear those plans will fall through when the other parent fails to exercise parenting time at the last minute, he or she can ask that the order limit the noncustodial parent’s parenting time to reflect only that time that will realistically be used.  A custodial parent can also ask that the order require the non-custodial parent to provide a minimum amount of notice if he or she will not be exercising parenting time.

For those parents who already have a court order, there is always the option to file a suit asking the court to modify that order to include the above provisions. That said, a modification suit likely will open a can of worms when the other parent countersues to ask for his or her own set of changes. A modification suit can also be very costly, usually offsetting any benefit in increasing child support.

Remember – a court order cannot solve every problem a custodial (or noncustodial) parent will face, and sometimes it is not monetarily worth it to fight this battle.  In these cases, a better option is for the parent to try one of the following (practical solutions) when he or she needs a night—or weekend—off:

  1. Ask friends and family (take turns watching each other’s kids).
  2. Seek out babysitters through friends and family or through an online caregiver database.
  3. Sign your kids up for Parents’ Night Out and other activities through their school, church, or local YMCA.
  4. Movie night! Make time for yourself when the kids are otherwise (safely) occupied. I promise they will not complain too much if they have to watch two episodes of Paw Patrol while you take a bubble bath!

. . . and if the babysitter cancels – beg.

Remember, being a good parent sometimes means taking care of yourself first.