Whitten Legal

Update to the Birthright Citizenship Executive Order Case(s)

Rollen Quicoy — Thu, 10 Jul 2025 17:32:42 +0000

There have been more Executive Orders signed by President Trump which have diverted some of the attention away from the Executive Order entitled Protecting the Meaning and Value of American Citizenship (i.e., the EO which ends birthright citizenship for certain categories of persons.

You will recall that the EO stated there would be no birthright citizenship for a child born to a mother who is “unlawfully present” or “lawfully present but temporary”, and whose father is not a US citizen or lawful permanent resident. Two weeks ago, a judge in Washington (a Ronald Reagan appointee) called it “blatantly unconstitutional”, issued a nationwide Temporary Restraining Order (“TRO”) against implementation, and scheduled the case for hearing on whether to extend the TRO into a Preliminary Injunction (which would typically stay in effect through final trial or until an appellate court ordered otherwise).

That Preliminary Injunction hearing occurred today, and in less than 20 minutes the court granted a nationwide Preliminary Injunction against implementation of the EO.

As a preliminary matter we should understand the legal grounds on which a trial court can grant a Preliminary Injunction. The basic requirements for a Movant to get a Preliminary Injunction include establishing that:

The Movant is likely to succeed on the merits at final trial;
Irreparable harm is likely to occur unless the preliminary injunction is granted;
The balance of equities tips in favor of the movants; and
The preliminary injunction is in the public interest.

Here, the trial court completely rejected the Government’s tortious arguments that the “subject to the jurisdiction” clause in the 14th Amendment somehow means something other than what its plainly states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

The Government’s argument goes something like this: a person here illegally is not subject to the jurisdiction of the United States because her permanent domicile is not here (after all, she is subject to deportation), and her allegiance is to another country (because she is a citizen of another country).

Respectfully, this is much less than good faith legal reasoning. “Jurisdiction” is a legal term and concept that goes way back to when we turned Boston Harbor into a lightly caffeinated body of water. As has been a truism in the law since before our country was founded, a government has “jurisdiction” over all the land and persons within its geographic borders except persons with diplomatic immunity. The last time I checked, undocumented migrants are certainly subject to our laws, can be arrested, hauled into our courts, prosecuted, fined, imprisoned, deported, etc.

The Government makes additional arguments in favor of what it wants “jurisdiction” to mean, including that a person must be permanently domiciled in the United States for her child to enjoy citizenship at birth and not owe allegiance to any other country. However, no variation of the word “domicile” or “allegiance” is anywhere in the 14th Amendment.

Some of the court’s most clearly stated reasoning to reject grafting new words, meanings, and requirements onto what is a simple sentence which uses simple words that conveyed (and still convey) a simple meaning when they were written, is the following:

In interpreting the text of the Constitution, courts are “guided by the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.’

In other words, you shouldn’t have to be a creative lawyer to understand the Constitution. This principle of Constitutional interpretation was stated as recently as by the “conservative” Supreme Court in 2008, and back to another Supreme Court decision in 1931.

The trial court also notes that the Government’s interpretation of the Citizenship Clause contravenes long-standing Supreme Court precedent going back to 1898.

The full analysis by the trial judge is deeper than my brief summary, but it is still a quick and easy read (the entire Order is only 13 pages) and can be accessed here.

I have no doubt that this decision will be appealed to the 9th Circuit Court of Appeals, and then to the United States Supreme Court (along with other cases on this issue, including one in Massachusetts which also granted an injunction against the EO).

While many of my friends, acquaintances, and colleagues disagree with me on this (those on the “right” and on the “left”), I predict that the United States Supreme Court will strike this EO down in a 9-0 or 8-1 decision. This is just too easy of a call for it to not go at least 8-1. (If I’m wrong, feel free to heckle me).

Now, my more “unvarnished” opinions:

We have an immigration and border crisis. We may disagree about the extent, cause, proper solutions, who is at fault, etc., but I think virtually everyone in the country agrees we have a real problem.
A real problem deserves a real solution, not a “head fake” to cause cheers, jeers, or panic. This EO is just that and has as much chance of “fixing” (all or part) of the immigration / border problems as I have in qualifying for the Olympics in speed skating. Why? Because it will be struck down as unconstitutional by the Supreme Court. And anything proposed as a solution which has no chance of being implemented because of its unconstitutionality is a waste of time, paper, ink, hope, effort, and political capital.
Even worse, this EO has caused absolute panic in some of our most vulnerable communities among our most vulnerable neighbors. Perhaps one is not bothered by that because “those” people “shouldn’t be here anyway and it serves them right”. . . .. (which I’ve heard more than once).

But does it really “serve them right”?

If I am correct and this EO is never going to be implemented because of its unconstitutionality, why try (and succeed) to cause abject terror to people who went through abject hell to get here for a better life?

Should “they” be deported? Should there be exceptions? Should there be a path to citizenship? Those are questions that need to be debated, and whatever the result, so be it, as long as it is a legal and constitutional result.

But as a country how should we feel about ourselves if the “real purpose” is just to cause the highest levels of worry, stress, anxiety, and fear to people? That, from the most powerful and wealthiest country in the world, I believe is immoral.

Child Support and Retirement Plans

Rollen Quicoy — Tue, 04 Feb 2025 09:05:37 +0000

On behalf of the Law Office of Greg Whitten on Tuesday, February 4, 2025.

Is this familiar? In your divorce or custody case, your Ex was ordered to pay for child support and is way behind but has a large 401(k) or other retirement plan providing your Ex with a comfortable living, nice vacations, a luxury car, etc.

Can the Court Order Child Support Paid Directly by Retirement Plan?

It’s true. A child support domestic relations order can be issued by the court, which orders a portion of the retirement plan (whether defined benefit, such as a traditional pension, or a defined contribution, such as a 401(k)) to be paid directly to you as the child support obligee. However, the retirement plan cannot be ordered to distribute funds pursuant to a domestic relations order before the date the owner/beneficiary of the plan would otherwise be eligible to withdraw funds.If this is your situation, please call us, and we will see if we can help.

What is a Guardian Ad Litem in Texas Family Court?

Rollen Quicoy — Tue, 04 Feb 2025 08:57:00 +0000

In CPS removal cases and some contested child custody cases, the judge may appoint a guardian ad litem to represent the child’s best interests (this is different than representing the child, which is what an attorney ad litem does). This person may be a volunteer from specific organizations, a professional with relevant licenses and training, an adult having the competence, training, and expertise determined by the court to be sufficient to represent the best interests of the child, or an attorney ad litem appointed to serve in the dual role in cases brought by a governmental entity (i.e., Child Protective Services).

What is the Authority of the Guardian Ad Litem?

The guardian ad litem will investigate to the extent she believes necessary to determine the child’s best interests and obtain and review copies of the child’s relevant medical, psychological, and school records.

She will also interview:

The child
Each person with significant knowledge of the child’s history and condition, such as educators, child welfare service providers, and foster parents
All the parties to the lawsuit

Through this work, she will try to determine and consider the child’s expressed objections, opinions, concerns, and any other task as directed by the judge.

What Court Actions Can the Guardian Ad Litem Perform?

The guardian ad litem will receive all papers filed in the case and all hearings. She will attend the hearings and (in certain cases) can call and cross-examine witnesses. Suppose there is a question about the child’s removal and/or placement. In that case, she will be consulted about her opinions and evaluate whether child welfare service providers protect the child’s best interests. She can also be expected to attend meetings related to the child’s service plan, etc.

The guardian ad litem can also testify and submit a report regarding her recommendations on the best interests of the child and the basis for those recommendations. This is a major difference between what the guardian ad litem can do in court and what an amicus attorney and/or an attorney ad litem can do.

Most cases involving a guardian ad litem are child welfare cases brought by child protective services, as opposed to divorce or custody modification cases brought by the mother, father, or non-parent conservator.

Who Pays the Fee for the Guardian Ad Litem?

If it is a removal case filed by CPS, typically, the county will pay the fees of the guardian ad litem. However, if appointed in a case brought by one parent directly against the other parent, the Court will typically order the parties to pay the guardian ad litem’s fees.

Small Business and Divorce

Rollen Quicoy — Tue, 04 Feb 2025 08:55:03 +0000

On behalf of the Law Office of Greg Whitten on Tuesday, February 4, 2025.

If you are going through (or anticipating) a divorce, what happens to a business owned by one or the other of you? What about the money in the business bank accounts? The furniture and fixtures? The ownership interests?The answers to these questions and more are critical so that you can plan and we can creatively solve potential problems in the divorce. While there is enough information to write a book, here are some of the first questions:

What Type of Business is it? LLC, Chapter C, Sub-Chapter S, D/B/A, General Partnership, Other

Was it formed before or during the marriage?
Who owns the shares/member interests, and in what percentages?
Has any ownership interest been given or assigned to anyone (including the spouse), and did that occur before or during the marriage?
Would the business still be viable if the spouse operating it ended his / her involvement?
How much money would be left over if the business was shut down, assets liquidated, and all debts paid off?
Are there personal guarantees of any business debts or contracts?

The answers to these initial questions will determine whether the business is the separate property of one or both spouses or community property. This is important because the court can only divide/award community property and can only confirm ownership of separate property.It is also essential to know that if the business is a legal entity, neither spouse owns anything “in” the business: not the accounts, receivables, equipment, furniture, etc. Rather, it is the business that owns these items. Accordingly, the court cannot award any of the business’s money or property to either spouse. However, if the business is community property, the court can award all or part of the ownership of the business to either / both spouses.

The liquidation value and value as a going concern (irrespective of either spouse’s ongoing involvement) is essential, as the business may not be worth anything to one spouse (or anyone else). Still, it may provide the livelihood of the spouse operating the business.

When we have a divorce with a business, we will explore these and more questions to be able to strategize for your best outcome.

Is Trump Changing Tax Rules So that the Parent Paying Child Support Gets the Tax Benefits / Deductions?

Rollen Quicoy — Wed, 29 Jan 2025 09:12:17 +0000

On behalf of the Law Office of Greg Whitten on Wednesday, January 29, 2025.

A rumor exploded on social media that Trump said (some say already signed an Executive Order) that women who receive child support would no longer be able to claim the child as a dependent on their taxes and would not receive a federal child tax credit.

One post I saw says this:

“Trump just tweeted, if you put your baby father on child support, you can’t claim income taxes. . . .. If he paying child support, you can’t claim the kids, only he can.”

Did Trump say this? No. Trump did not say, tweet, or sign an Executive Order as to this. However, the rumors pose other questions, such as: Could the President do this?

Yes, it could happen. However, whether it could happen is a very low bar since almost everything falls in the could happen universe.

Who can “claim” the children on your tax return is a matter of IRS Rules and Regulations, so for this to happen would require a radical change in existing IRS Rules / Regulations. The IRS is part of the Executive Branch and the President is the Chief Executive. However, the process to change Rules / Regulations is lengthy (and includes public notice and comment periods).

What is the Likelihood of this Happening? – To quote my father when I asked him long ago what were my chances of getting a raise in my allowance. His response? Slim to none. That is the same answer here: slim to none. This is simply not something to worry about.

Parental Alienation and Family Court

Rollen Quicoy — Thu, 16 Jan 2025 09:21:58 +0000

On behalf of the Law Office of Greg Whitten on Thursday, January 16, 2025.

In many of our cases we see children “weaponized” against the other parent by the use of psychologically abusive and/or controlling conduct and communications. The common term for this is “Parental Alienation.” However, this term is incredibly overused in family courts.

If this describes your situation, I encourage you to not use this term. It is not a diagnosis but a description and/or conclusion of abusive and controlling conduct, behavior, and communications to turn children away from the other parent. It is a form of psychological abuse.

A judge does not make a finding of “parental alienation.” Instead, in determining what is in the “best interest of the child,” the judge can make a finding of abuse or neglect in order to award one parent “Sole Managing Conservatorship” and/or to put limitations on a parent’s rights of possession and access.

The key to convincing a judge that this abuse or neglect has occurred is first to not say “parental alienation.” Instead, focus your efforts on gathering and presenting the evidence of the abusive and controlling behavior, manufactured events, improper communications, etc. to show that it arises to abuse or neglect.

Did the Attorneys (and Their Client) that Dallas Cowboys Quarterback Dak Prescott Sued, Blow Their Chance at a “Win”?

Rollen Quicoy — Wed, 03 Apr 2024 09:27:39 +0000

On behalf of the Law Office of Greg Whitten on Wednesday, April 3, 2024.

I recently posted an article about the lawsuit Dallas Cowboys quarterback, Dak Prescott, filed against two lawyers (“Zehaie” and “Zehaie”) and their client Victoria Shores (“Shores”), alleging extortion, defamation, and other claims, based on a demand that Dak pay her $100 million dollars to settle her claims arising from an alleged sexual assault in 2017. If you haven’t read that article, read it here before you read the rest of this article.

Fortunately for Dak, Shores and her attorneys did exactly the worst thing, strategically, that they could possibly do: they went ahead and filed a lawsuit against Dak alleging the sexual assault in February, 2017.

Why is this a BIG mistake on their part?

First, it is a huge mistake to have filed the lawsuit because they cannot win it. The statute of limitations for a sexual assault is 5 years, and the assault Shores claims occurred was 7 years ago. (Whether the sexual assault happened or not, I have no idea. Assuming it did happen, then it is a shame Shores did not sue Dak within the 5-year time limit.).

Of course, there is an exception to the 5-year statute of limitations (but it isn’t going to save Shores’ lawsuit): If Shores can prove that Dak has been physically outside of Texas for 2 years out of the last 7 years, then the statute of limitations defense would not bar the lawsuit. But think about it . . . how are they going to prove he has been outside of Texas for 2 out of the last 7 years? They can conduct written discovery (requesting his travel records from him, from the Cowboys, request his phone and text records, credit card and bank statements, etc., etc.) and they can take depositions of Dak, the Cowboy’s travel office personnel, and others. They will have to do all that and more to have a chance to identify every day over the last 7 years that Dak was not physically in Texas.

But . . . What is all that discovery and all those depositions going to cost in attorney’s fees and expenses? Since Dak has plenty of money to pay his attorneys, you can bet every objection, delay tactic, motion, legal maneuver, etc. will be used to delay, obstruct, and otherwise prevent the discovery from happening. By the time all the legal maneuvering is over, it could easily have cost Shores $100,000 or more in legal fees and expenses. And even if she can afford that, what are the chances of proving Dak was out of state for 2 out of 7 years? My guess is slim to none.

The second reason this lawsuit is a big mistake is that the whole premise of the Anti-SLAPP Motion to Dismiss that I discussed in my previous article is that Dak’s lawsuit was filed to prevent Shores from exercising her rights of free speech, association, and to petition for redress of grievances (i.e., file a lawsuit). It is a “little” harder to argue that Dak’s lawsuit was to prevent her from filing her own lawsuit, when her attorneys went ahead and filed the lawsuit against Dak!

The third reason it is a mistake for Shores to have filed the lawsuit against Da, is that when it is all over and she loses the lawsuit on Dak’s statute of limitations defense, she is going to feel victimized all over again. And, it could be worse than that, as Dak could seek sanctions against her for filing a frivolous lawsuit that is doomed to be lost from the beginning. It is foreseeable that she could be ordered to reimburse to Dak all of his attorney’s fees and expenses ($100,000? More?).

The lawsuit Shores filed against Dak can be downloaded here. Check back with me from time to time as I will follow this case and update developments.

If you, or a loved one has been the victim of assault, family violence, or dating violence, please call us. We can help!

Dallas Cowboys Quarterback, Dak Prescott, Files Defamation Case

Rollen Quicoy — Thu, 14 Mar 2024 09:37:43 +0000

On behalf of the Law Office of Greg Whitten on Thursday, March 14, 2024.

Is This a Game Winner or Game Loser?

A very interesting case was recently filed in Collin County, Texas.Victoria Shores (“Shores”) hired two attorneys (“Zehaie” and “Zehaie”) to send a demand letter to Dallas Cowboys quarterback, Dak Prescott, alleging that he committed sexual assault against her in 2017. Dak Prescott denies the allegation.

If Dak pays her $100 million, Shores will settle and “forego pursuing criminal charges, along with disclosing this information to the public.” This is certainly a bold demand, since the statute of limitations for Shores to sue Dak in civil court expired two years ago, and any lawsuit she filed would likely be dismissed by summary judgment.

Dak Prescott did not wait to be sued. Instead, his attorneys blitzed – they filed a lawsuit against Shores and her attorneys, asserting various causes of action for defamation, civil extortion / duress, civil conspiracy, and others. While it is reasonable to question the strength of the claims behind Shores’ demand, that is not what is interesting to me. To me what is interesting is:

Did Dak Prescott just expose himself to payment of the other side’s attorney’s fees, plus potentially high monetary sanctions, by filing this lawsuit?

Texas has the Texas Citizen Participation Act (TCPA), also known as the Texas Anti-SLAPP Statute (SLAPP stands for “Strategic Lawsuits Against Public Participation”). In short, this law protects the ability of a person to exercise her constitutional rights of freedom of speech, freedom of association, and freedom to petition the government for redress of grievances. Basically, whether our motives are pure or not, and whether our facts are true or not, if we are sued because of the exercise of one of these rights, Anti-SLAPP comes into play. The public policy for the statute is that we cannot allow someone to use the court system to bully someone else into not being able to freely exercise their rights to freedom of speech, association, and to petition.

In other words, if Dak Prescott’s lawsuit is based on Shores’ and her attorneys’ exercise of the freedom of speech, the freedom of association, and/or the freedom to petition the government for redress of grievances (and it certainly is, at least in large part), then they can respond with an Anti-SLAPP Motion to Dismiss against Dak.

When Defendants file their Anti-SLAPP Motion to Dismiss, a hearing will be held in 60 – 90 days, at which time Dak Prescott will have to put forward sufficient evidence on each element of each challenged cause of action. If he fails to do so, then his case will be dismissed. And if it is dismissed, he will be ordered to pay Defendants’ attorney’s fees and expenses. In a case such as this, that could be $50,000 or more.

Even more significantly, the Court can enter a sanctions order against Dak, in an amount “the court determines sufficient to deter [him] from bringing similar actions” in the future. For someone with the wealth of Dak Prescott, how big would a sanctions order have to be to dissuade him from bringing a similar lawsuit in the future? $1 million? $10 million? $20 million? More?

By analogy, imagine a big game in which the Dallas Cowboys are winning by 5 points, with three seconds left, and all that Dak Prescott has to do is take a knee. Instead, Dak passes – will it be intercepted and returned against him for a game winning touchdown?

Anti-SLAPP situations can occur in many situations, and often are often found in family law cases when a claim of defamation is made against the other party (I have one of those now).The case is styled Rayne Dakota Prescott vs. Victoria Baileigh Shores, Bethel T. Zehaie, and Yoel T. Zehaie, and filed in the 493rd Judicial District Court, Collin County, Texas, The Honorable Christine Nowak Presiding.

You can download the lawsuit here and you can read an article about it here.

Believing These Custody Myths Can Harm Your Case

Rollen Quicoy — Wed, 10 Oct 2018 09:42:53 +0000

On behalf of the Law Office of Greg Whitten on Wednesday, October 10, 2018.

Navigating a Texas divorce can be hard, especially when it involves minor children. When it comes to child custody and support, the law encourages parents to prioritize the children’s well-being and to work to come up with an optimal arrangement.

Many people harbor misconceptions about the way custody works in Texas. Acting upon them can actively damage a case and lead to an outcome that benefits neither parents or children.

1. Informal agreements work as well as a court order.

People sometimes think that if the divorce is amicable, they can work out major issues such as custody on their own. Although collaborative solutions can yield many benefits and Texas law encourages them, it is important to stay within a formal legal framework. Parents need to draw up a written agreement and submit it to the judge for approval. This also holds true for a subsequent custody modification: Even if the parents agree on what changes to make, they still need to formally submit them to the court.

2. Mothers get custody automatically.

Although there was, indeed, a time when the law presumed young children were better off with their mothers, this is no longer the current approach. Instead, Texas courts begin deliberating custody matters from the point of view that it is in the children’s best interest to have their parents participate equally in all aspects of childrearing. Of course, in a particular case, circumstances might dictate a different approach, so each determination stems from a review of relevant factors.

3. It is appropriate to withhold support or visitation to punish the other parent.

Contrary to a popular misconception, visitation and child support are separate issues. One parent cannot penalize the other for nonpayment by withholding scheduled visitation. Conversely, if one parent fails to comply with the visitation schedule, the other cannot start withholding support payments. In either case, the proper recourse would be to file a motion with the court and ask it to enforce the parenting plan or the support order.

Splitting A 401(k) In A Divorce

Rollen Quicoy — Thu, 09 Aug 2018 09:47:07 +0000

On behalf of the Law Office of Greg Whitten on Thursday, August 9, 2018.

Divorce becomes complicated the more assets a couple shares. While most couples will focus on the division of property and child custody, there is one issue many people tend to overlook: the 401(k).

A 401(k) is marital property. The spouses contribute to it and similarly to buying a home together, it becomes open for division in the event of a divorce. Dividing a 401(k) can become messy, so it is important to prepare adequately and have an attorney assist you throughout the process.

A Three-Step Process

There are three steps to divide a retirement account. First, the initial divorce decrees must explicitly order the division. Next, you and your lawyer will need to create an additional legal document known as a qualified domestic relations order (QDRO). You will need to provide this document to the administrator of the retirement account, and the document must contain details about how to divide it so that it remains in compliance with the Employee Retirement Income Security Act.

From here, the judge will need to approve and sign the order. At the end of it all, the former spouse will receive the designation of “alternate payee,” which means that he or she can receive payments from the account.

Distributing the Funds

There are several different ways a former spouse can receive payments through the account. The spouse can take money as a cash payment right off the bat or elect to receive proceeds into his or her own retirement account. Additionally, it is possible to leave the 401(k) intact until the person who owns it retires, at which point payments can come through.

Working Out An Independent Agreement

It is possible for two divorcing spouses to reach an agreement on their own for various retirement accounts. However, it would work to both parties’ best interests to still consult with a financial advisor and attorney to ensure everyone receives a fair share.