ARTICLES & AWARDS

The Law Office of Robert S. Hoffman has been recognized by numerous organizations for its excellence in the practice of family law. Also posted here are recent articles by Robert Hoffman published in Texas Lawyer and other media on various family law topics.

“How to Litigate and Otherwise Manage a Case of Parental Alienation”
Free Telephone Seminar 

This is a replay of a talk I gave for Family Access-Fighting for Children’s Rights, an excellent organization dedicated to educating and helping those parents and grandparents and children suffering from Parental Alienation. 

A description of the talk is as follows:

Among other things, Mr. Hoffman will address how targeted parents can avoid certain predictable pitfalls. Specific topics will include direct examination of experts for the targeted parents, cross-examination of experts for the alienating parents, and both direct and cross examinations of court-appointed experts including custody evaluators, psychological or psychiatric evaluators, guardians ad litem, visitation supervisors, parenting coordinators, and others. Another key theme will be how to distinguish between science and pseudoscience in the courtroom. Because Mr. Hoffman will focus on basic principles – including practical considerations for dealing with alienating parents and also court-appointed professionals – this is likely to be extraordinarily helpful not only to litigating parents and their attorneys, but to alienated parents and grandparents in general.

Robert Hoffman is Board certified in family law by the Texas Board of Legal Specialization. He is also a member of the American Academy of Matrimonial Lawyers. Robert has been practicing family law for 33 years. He has been successful in handling as lead counsel numerous bench and jury trials and negotiating highly contested child custody battles, high net worth divorces, complex financial disputes and cases involving parental alienation. He successfully represented Kelly Jones against Alex Jones (Infowars fame) in a jury trial in Austin, Texas in 2016. He is well-known and specializes in trying complex cases. Robert enjoys working closely with and advocating for people at a critical time in their lives. Robert has been consistently included in Texas Super Lawyers 2003-2019 and Best Lawyers US 2008-2020. 

Guest Speaker: Robert S. Hoffman

When: Sunday July 19, 2020 from 7-8PM CST

To register for the call please email: familyaccessinnc@aol.com

How Does the COVID-19 Quarantine Affect Child Custody Orders In Texas? 

The current Texas and Harris County stay at home orders present a conundrum for some parents who are “essential workers” such as physicians and other healthcare workers, as well as first responders including police, firefighters and paramedics. People in these kinds of positions absolutely have to go to work -- but still need to care for their children who are at home.  Further, these essential workers are in the line of exposure to the coronavirus, thereby increasing their children’s chances of exposure to the virus. If children are subject to a possession order and go between their parent’s respective homes, this means that if they are exposed to the virus at one parent’s home, they potentially bring that exposure to the other parent’s home.

Because this is such a new and unusual situation, there is no precedent. So how do you work with a visitation schedule under these circumstances? We’ll try to answer some of your questions here. 

How Does A Shelter-In-Place Order Affect Possession Schedules? 

In short, it doesn’t. Visitation is an essential function, and parents still need to give their children time with their other parent. You would not be violating any shelter-in-place orders when following your current possession order. 

On March 24th 2020, the Texas Supreme Court issued an order stating in effect until May 8, 2020, that existing court orders are to be used for all determinations of an individual’s right to possession of and access to a child under a court-ordered possession schedule.

Should I Stick with my Current Possession Schedule? 

If you are a parent subject to a Court ordered possession schedule, you must continue to follow the schedule, unless you and your ex agree otherwise. You’ll still need to follow current CDC health recommendations to prevent the spread of COVID-19, which may involve six feet of distance between you and your ex during handoff.  You may find yourself and your child(ren) in circumstances where your current possession order is unworkable due to the coronavirus and where you and your ex are not able to reach an agreement as to your child’s best interest, and in such an instance you should seek legal advice. No two sets of circumstances are the same, and you may need to seek the emergency assistance of the Court to protect your child’s health and well-being. 

If you have a good co-parenting relationship with your ex, you may be able to make workable contingency plans to keep your child(ren) safe. This is especially true if one or more of your children has asthma or another condition that essentially turns anyone into high-risk with COVID-19. 

Discuss temporarily postponing in-person possession with more phone calls and online communication (FaceTime, Skype, Zoom, WhatsApp, etc.) with the option of adding more in-person communication later, such as additional weekends. Include both parties in the scenario, and which would have the children under various scenarios. Should isolation become necessary, you’ll already have your plan in place to implement. 

Unless you and your ex agree to an alternative arrangement or have a modification order from a judge, you must continue to follow your existing possession schedule.  Failure to adhere to a court order could result in being held in contempt and facing a fine or even confinement to jail. If you and your ex agree to modify your possession schedule as our community weathers the coronavirus pandemic, you should get such agreement in writing.  While such written agreement would not replace the court order, it would certainly reflect that an agreement was at one time made and would offer some protection from contempt.

What Happens If One of Us Becomes Ill And Is Subjected To Quarantine?  

Have this discussion with your ex as soon as possible, because either one of you could find yourselves ill with other illnesses besides COVID-19. Agree on a contingency plan now, to be used only if necessary, including virtual visits to prevent your child(ren) from becoming ill and make sure that they will be looked after no matter what. 

If you or the other parent believe that you’ve been exposed to COVID-19, or your child may have been exposed, you must disclose it to the other parent immediately, and discuss what to do going forward, and how to keep your child(ren) safe.  

This discussion is especially important if you or your ex is a first-responder or other essential personnel (doctor, nurse, etc.), who is in daily contact with those who may have COVID-19. You may need to begin alternative visitation arrangements until they are no longer in contact with the ill patients and have completed a post-exposure 14-day isolation to ensure that the children aren’t exposed.

What Happens When My Ex Refuses to Return Our Children Due to COVID-19?

Again, shelter-in-place rules do not affect visitation schedules for either parent. He or she could be charged with contempt of court for violating a court order because they failed to return a child for any reason. You will need to file a Petition For Writ Of Habeas Corpus with the court, and if granted, they must return to court with the child or children. 

You may also need to ask the court to sign a Writ of Attachment, authorizing a sheriff’s deputy or constable to pick up the child immediately. You’ll be required to show that the person who has possession will ignore the Writ of Habeas Corpus and refuse to return the child. 

Should your ex refuse to return your children, contact our office immediately. We’re available by phone and email for consultations and to help with situations that are out of your control.

My Child’s School Is Closed for An Extended Period. How Does This Affect Visitation? 

It doesn’t. The aforementioned court order requires parents to use the previously published school year calendar in conjunction with their court-ordered visitation schedule. 

Make sure you keep current on the school’s schedules as well as county activities related to this current situation. 

Most standard Texas possession orders allow parents to make temporary arrangements to allow for situations like these if both parties are in agreement. However, you may consider asking the court to make a modification to your order if the arrangements need to be longer-term. 

Help with Texas Child Custody Cases 

These are challenging times for everyone, and parents need to be aware of abrupt changes and be able to react quickly. 

Whether you’re having difficulty with a former spouse over needed changes in custody now, or on a regular basis, don’t take any action without speaking to a family law attorney. We can help with mediation, and work with you for any needed modifications to your current visitation schedule. 

Since 2009, Hoffman Law has helped hundreds of Houstonians navigate the complexities of family law in the State of Texas. If you have questions, or seeking help, please contact us at 713-333-8353.

Texas Medical Association’s Texas Medicine interviews Robert Hoffman on challenges faced by physicians in family law cases.

Testifying as a physician in a divorce case might not be as high-stakes as testifying in a medical negligence case. But one divorce case that Houston pediatrician James Allison, MD, participated in several years ago showed him you just never know what’s going to happen.

Dr. Allison knew going into the deposition that the divorcing parents disagreed on whether to vaccinate their child; the father was in favor, the mother was not. What he couldn’t anticipate was how that dispute would play out during his testimony.

“The mother’s attorney insisted on reading from the Physician’s Desk Reference (PDR) every adverse reaction that could happen for each and every vaccine. Then he would ask me to say whether I agreed or disagreed with each,” he recalled.

That line of questioning went on for four hours.

“After the deposition was over, I told that lawyer, ‘I think this is the biggest abuse of process I have ever seen and the most ridiculous hearing I’ve ever been involved in.’ The PDR is the PDR, and it says what it says, and we all read it. But to read a list of potential adverse reactions to vaccines, implying that they should not be given, is both preposterous and a waste of everyone’s time.”

Physicians subpoenaed to participate in a divorce case, whether to testify or simply to supply medical records to the court, likely won’t find themselves at the center of a circus like that one. But there are certain things they should know if they get called into the middle of what could be an acrimonious split.

“Oftentimes I’m working with a physician that’s maybe never confronted this situation before, and is a little bit uncertain about the legalities,” said Robert Hoffman, a Houston divorce attorney. “They want to do the right thing, but they don’t want to violate any rules or lean unfairly towards one party or the other in a contested matter.”

Susan Myres, also a Houston divorce attorney, adds physicians often can play a key role in helping courts thoroughly examine a divorce. Courts look to them for information a judge or jury might need to reach a fair resolution.

Short notice

Physicians can be called on in any type of divorce case, including those involving a child — where the fitness of one or both parents may be under scrutiny — or a split where spousal abuse is at issue. Ms. Myres says there’s even a rising trend in divorces between elderly people, with “people that have been married 40 years coming into our offices going, ‘I am not dying next to him.’” She predicts that particular wave of divorces will bring new challenges to the parties’ mental competence, which means how older patients present in their doctor’s office could become an issue in the courts.

A subpoena for testimony can come without warning, Dr. Allison says. Any legal request gets doctors’ attention and makes them anxious, he says, and when they see how quickly the court asks them to appear, it’s disconcerting.

“Out of the blue, you receive a subpoena to appear in court tomorrow at 9 am, or the day after tomorrow. [You’ll think], ‘Oh my, I have a schedule full of patients tomorrow. I can’t do this,’” he said.

But one thing he’s learned — as Ms. Myres confirms — is that a subpoena with a short turnaround doesn’t have to upend your practice. She says you can file paperwork objecting to the requested time and place, and the physician’s office often can work with attorneys in the case to make other arrangements.

“If a doctor can say, ‘Look, I cannot be there on Wednesday, I have three surgeries lined up, and I’ve got hospital duty. … But I could come testify on Thursday afternoon anytime after 2.’ That kind of courtesy goes a long way not just with the lawyers, but with the judge,” said Ms. Myres, president-elect of the American Academy of Matrimonial Lawyers.

Like a request to testify, a subpoena for records also can come on extremely short notice — and before you’ve had a chance, per HIPAA, to get the proper consent from your patients to make their records part of the case.

Again, there’s no reason to fret; Ms. Myres says you can claim physician-patient confidentiality and file an objection to the place and time, which will give you time to try to obtain the proper privacy release. An attorney can help you draft those form templates so they’re ready to go when you get a court order, Ms. Myres says. Sometimes, if the request originates with attorneys who handle divorce cases a lot, the physician will receive a HIPAA form attached with the request for documents.

“You have a right to go, ‘Look, you can’t give me three days’ notice.’ Because under normal circumstances, you’re entitled to maybe 15 days if it’s [a request] from a patient,” she said.

Stay composed, stay impartial

Prior to testifying, it’s beneficial to consult with an attorney who can walk physicians through the basics, Mr. Hoffman says. That might be the attorney who’s called you to testify or one whom you know. A family law attorney can take a physician through the general rules of testifying, facts of the case, and questions you might hear.

Mr. Hoffman says he’s seen physicians on the stand “squirming a bit about whether this course of treatment was taken versus another, or how the mom and the dad related to [that] decisionmaking. It can be an uncomfortable situation.”

Plus, caught unaware, physicians’ style of medical note-taking in the office also can make their testimony awkward once those notes become part of an open court proceeding.

“I’ve seen doctors … really put between the crosshairs in terms of the contents of what’s in the notes, and something might be said that they never dreamed would show up in the light of day,” Mr. Hoffman said. For example, if a physician’s notes have documentation of a parent’s behavior or demeanor when he or she brought the child in for an exam, the parent might get “quite mad and angry that there was such a notation in the notes.”

Some basic rules for taking the stand: Make sure you understand the question, answer that question only, and don’t volunteer information you’re not asked about, Mr. Hoffman says.

And when the medical care of a child is at issue, Dr. Allison advises physicians stick to reading and explaining what’s in their records. The physician shouldn’t become a partisan in a dispute that the parents are having, “unless you truly feel that one parent would not be an appropriate custodian of the child,” he says.

“Sometimes one party will to try to enlist you in making the claim that the other spouse is not taking care of the child’s medical needs, not following through with medical recommendations, or not giving prescribed medicines,” Dr. Allison said. “Or they may come to your office and say, ‘Johnny came back from his father’s on Sunday night with this new bruise.’ Well, kids get bruises. It doesn’t mean his father is abusing him.

“Or an attorney may ask ‘How about this visit on this day?’ Again, read your notes, explain anything that needs explaining, answer any specific questions you are asked about the visit, then be quiet.”

A judge could also appoint a physician as a medical “tiebreaker” if the parents don’t agree on whether their child should undergo an invasive medical procedure, which Mr. Hoffman says can be typical in divorce agreements.

Lawyers can help

For physicians, participation in divorce cases comes down to hiring an attorney they can consult, not only for haggling deadlines for records submission or testimony, but also for possibly heading off harassment.

In one case Mr. Hoffman uses as an example, a father he represented was in favor of his child receiving attention deficit disorder medication. The mother disagreed. Mr. Hoffman says a psychiatrist was caught “so much in the middle” of the case that she engaged her own lawyer, who was instrumental in taking the heat off the psychiatrist as the mother worked to get the doctor kicked off the case.

“The mom was peppering the doctor left and right with emails, and wanting to have after-hour visits, and questioning the doctor’s integrity, and saying that she was improperly siding with my client, and was ignoring all sorts of alternatives that could have been explored prior to medication,” Mr. Hoffman said. “The lawyer helped negotiate the timing of when the doctor would testify in the proceeding — because the doctor, like most doctors, was busy and had a busy schedule — and was instrumental in keeping the doctor from being subpoenaed and having to come to court and just sit on the benches all day long and wait for her turn to be called.”

Tex Med. 2019;115(3):30-33

March 2019 Texas Medicine