Divorce court orders dictate parents' behavior

By Amy Davis, Investigative Reporter/Consumer Expert, adavis@kprc.com
Published On: Jul 18 2012 03:32:34 PM CDT
Updated On: Jul 18 2012 11:56:53 PM CDT

July 18, 2012: Local 2 investigates judges handing down orders some say are unfair, unreasonable and maybe even unconstitutional. Amy Davis reports.

HOUSTON -

Local 2 investigates judges handing down orders some say are unfair, unreasonable and maybe even unconstitutional.

"Most people in Montgomery probably have no clue that there's an order such as this," said Shannon Harris.

Harris said she couldn't believe it when she saw her friend's divorce paperwork containing a court order that is issued to every couple going through a divorce with children. More than a thousand couples have received the orders this year in Montgomery County so far.

"This really is kind of against our constitutional right," said Harris.

Two sections in the order got her attention. Section 1.6 explains that both parties are ordered to refrain from "consuming alcohol within the 24 hours before or during any period of possession of or access to the children."

"You may never have been drunk in your life, but you can't have a drink of alcohol, period," explained Harris.

In a nutshell, section 1.7 means you can't have anyone in your home that you are dating while your child is there between 9 p.m. and 8 a.m.

And remember, these rules are for everyone.

"I think they probably abridge people's freedoms," family law attorney Randy Wilhite said.

He said it is unusual for courts to impose orders or restrictions on people who've never shown any signs of a problem or the need for such rules.

"Issuing orders without hearing evidence in a setting where it doesn't necessarily apply raises some questions," Wilhite explained.  

We took those questions to every Montgomery County judge still in office who signed the order in 2009. All 10 of them refused to speak with Local 2. Most referred the station to Montgomery County's only family law judge, Tracy Gilbert.

After repeated calls and emails, Gilbert's assistant sent Local 2 an email that reads "It is the policy of the court to not reply to media inquiries."

"They're adults. They should be able to consume alcohol ... not overindulge," said one man outside the courthouse. 

Others said the rules are necessary.  

"It applies to my case," said one woman who explained that her ex-husband had a drinking problem. "I'm not saying it applies to everybody's case."

The standing order said people can contest the rules by submitting evidence that they should not apply to them. But that is not how it usually works.

"I think, the last time I heard, in America it's innocent until proven guilty," said Harris.  

"It puts the burden of proof on the litigants to thereafter come into the court and say, 'Hey listen, this doesn't apply to me. Remove this from my setting.' So it really reverses the natural order of the way things typically happen in court," explained Wilhite.

So what could happen if a person violates the order? Wilhite said they could be fined up to $500 or even get sentenced to six months in jail. We don't know if Gilbert or any other judge has ever imposed those penalties, but a woman who identified herself as Judge Fred Edwards' court coordinator said, "Actually judges can order you to do anything; and you pretty much have to do it. They have a lot of power."

A judge from another county told Local 2 the standing order is likely just out of convenience to save on paperwork. Since "no drinking" and "no dates at the house" is necessary in so many of their cases.

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