One couple has learned that the old saying "you can't un-break an egg" can apply to divorces as well. Eight months after their divorce was finalized, a couple in New Hampshire decided that their differences weren't as irreconcilable as they thought. They have been trying to have their divorce reversed, but earlier this month the New Hampshire Supreme Court ruled that the all the government's horses and all the government's men can't put that "Humpty" together again.
In an unanimous ruling on December 8, the justices said that although the laws of New Hampshire grants the state the power to grant divorces- it lacks the authority to undo a divorce once it is final.
Although a few states allow divorces to be vacated under some specific circumstances, most states, have no statutory authority to "undo" a divorce.
Although it is nice to see a couple patch things up, divorces are considered a one way street. The finality of a divorce is generally good for the parties and sound policy for the public. We want people and the rest of society to know that the divorce is final and irreversible. We don't want to be creating a mess with inheritances, new marriages, child support and all the other issues that depend on the marriage status being very clear. This policy may not be romantic, but it is highly practical.
In Texas, there is no going back after a certain point. If thirty days has expired since entry of the final decree, then you are out of luck. After that, the court generally loses any power over your divorce case (if you have children- that is a different case and they keep power over your kids), But if you are within the thirty day period, you could file a Joint Motion for New Trial. If that is granted then you both can dismiss the divorce case. Aside from that, if you want to be husband and wife, you will have to remarry.
Recently, I was asked how much a mother has to cooperate in getting her children to go to visit with their dad. She said that even though her divorce decree gives the father the right to see the children, they do not want to go with him for visitations and she doesn't want to push them to go.
Each case is different based on the facts of the case. The age of the children, and the recent events that affect their relationship with the father would change the specific answer I would give. But generally, I would say that even though the mother's legal obligation may be limited, her moral and ethical obligation to the kids means she should do more than the minimum demanded by law. The mother's very question is subject to scrutiny and even a little suspicion. The natural state is that children love their parents and want to be with both of them. If this is not the case, then something is very wrong and social science has shown that a broken relationship with the father will have long term negative consequences for the children. The fact that the mother seems unconcerned that the children don't want to see their father- and is more focused on her own legal obligations suggests that she may be engaging in some passive parental alienation.
As far as her legal obligations goes, the Texas Penal Code sets out the offence of Interference with child custody:
(a) A person commits an offense if the person takes or retains a child younger than 18 years when the person: (1) knows that the person’s taking or retention violates the express terms of a judgment or order of a court disposing of the child’s custody; or (2) has not been awarded custody of the child by a court of competent jurisdiction, knows that a suit for divorce or a civil suit or application for habeas corpus to dispose of the child’s custody has been filed, and takes the child out to the geographic area of the counties composing the judicial district if the court is a district court of the county if the court is a statutory county court, without the permission of the court and with the intend to deprive the court of authority over the child.
(b) A noncustodial parent commits an offense if, with the intent to interfere with the lawful custody of a child younger than 18 years, the noncustodial parent knowingly entices or persuades the children to leave the custody of the custodial parent, guardian, or person standing in the stead of the custodial parent or guardian of the child.
(c) It is a defense to prosecution under Subsection (a)(2) that the actor returned the child to the geographic area of the counties composing the judicial district if the court is a district court of if the court is statutory county court, within three days after the date of the commission of the offense.
(d) An offense under this section is a state jail felony.
[Tex. Penal Code 25.03]
There if very little case law on this subject but one court attempted to set out some guidelines: In Ex parte Morgan, 886 S.W. 2d (Tex. App—Amarillo 1994, no writ), this court ruled that a parent could not be held in contempt where she passively failed to insist that her children visit their father, but not seek to impede the visitation or encourage the children to resist it. The court stated that if “a parent has encourage minor children to resist court ordered visitation with the other parent, the line has been crossed between passivity, which is punishable by contempt, and overt conduct, which would be punishable. Again, the well-being of the children is served by both parents’ encouragement to the children to love and respect the other parent.”
Within the spectrum of visitation disputes, there may be instances in which: (1) a parent actively discourage or impedes visitation; (2) a parent passively fails to insist that a child comply with visitation; or (3) a parent is legitimately unable to compel a child to comply with visitation. The courts have held that the defense of involuntary inability to comply applies only to the third alternative, and not to the first two. Ex parte Rosser, 889 S.W. 2d 382, 386 (Tex. App.-Houston[14th Dist.], 1995, no writ).
While I see nothing in the law that says the mother is required to drag a child to his father’s car and put him in the front seat, the mother should do everything to encourage the visitation within reason as this is best for the child and make the child available at your front door at the designated time. The mother has an obligation to put her own feelings aside and do truly EVERYTHING as a parent she can to foster a positive relationship and get the children to go with the dad. The Court in the Ex Parte Morgan case clearly stated this obligation: "It is imperative that both parents recognize that their personal feelings must be submerged in cary8ing out their responsibility to obey the law and, by doing so, demonstrate to their children that they should do so as well." ( 831).
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Attorney Sean Y. Palmer has over 20 years of legal experience as a Texas Attorney and over 25 years as a Qualified Mediator in civil, family and CPS cases. Palmer practices exclusively in the area Family Law and handles Divorce, Child Custody, Child Support, Adoptions, and other Family Law Litigation cases. He represents clients throughout the greater Houston Galveston area, including: Clear Lake, NASA, Webster, Friendswood, Seabrook, League City, Galveston, Texas City, Dickinson, La Porte, La Marque, Clear Lake Shores, Bacliff, Kemah, Pasadena, Baytown, Deer Park, Harris County, and Galveston County, Texas.
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