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Texas Custody Schedule Changed Due to School Absences

Originally published by Robert Epstein.

iStock-1252096710A parent’s behavior may affect their rights to access and possession of their child in a Texas custody case.  In a recent case, the trial court’s order provided that the schedule would change if the child had a certain number of unexcused absences or instances of tardiness while in the mother’s care.

According to the appeals court’s opinion, the trial court entered a custom possession order (CPO) as part of a modification order at the end of January 2020.  Pursuant to the CPO, the father had the right to possession of the child from Wednesday morning to Friday morning each week and from Friday morning to Monday morning every other weekend, and the parents alternated holidays and school breaks.  The CPO also provided that the mother’s possession schedule would change to the Standard Possession Schedule if the child had a total of any combination of five unexcused absences and “tardies” from school, as determined by the school, while in the mother’s possession.

Father Moves to Impose Standard Possession Order

The father moved to confirm and clarify the order and requested an injunction in April 2020.  He alleged the child had been tardy five days and absent two days during the fall semester of 2019.  He asked the court to confirm and clarify that the standard possession schedule was in effect and to grant an injunction.

 

He testified the child’s official school record showed the five tardy days and two unexcused absences and that the mother was responsible for getting the child to school on those days.  He presented a business records affidavit of the school’s records custodian dated January 30 and the child’s attendance records.  The records showed the child had four unexcused absences and five tardy days, including the specific days identified by the father.  He also testified that his attorney had attempted to resolve the issue without going to court.

The mother presented a business records affidavit dated June 16.  The attached records did not show the child was tardy on three of the dates on which he was shown tardy in the records introduced by the father.

The child’s kindergarten teacher testified she would rely on the records dated June 16.  She testified children are sometimes sent to the office when they arrive late, and that she and the office personnel can both input tardies.  She also testified that the system she uses and the system used by the office are different and that the two sets of records were from two different systems.

The mother testified she did not know if she was responsible for getting the child to school on three of the dates, which were on the days the parents alternated possession.

The trial court ordered the parties to use the standard possession and access schedule and awarded the father attorney fees.

Mother Appeals Trial Court’s Confirmation of Standard Possession Order

The mother appealed, arguing the trial court abused its discretion because it did not have sufficient evidence to support the order.  She argued the kindergarten teacher was an expert, and the trial court should have relied on the June records because the teacher testified she would rely on them and because they were more recent.

The appeals court noted the trial court had recognized the teacher as an expert in teaching, but not in education administration.  She had testified she was unfamiliar with generation and interpretation of school attendance records.  Although she acknowledged the discrepancy in the records, she could not explain it.  The appeals court further noted the trial court could have found she would rely on the June records because she was familiar with that report and not the one the father submitted.  The trial court had the discretion to discount her testimony.

Appellate Court Finds that Trial Court Properly Considered Conflicting Evidence

The appeals court noted that the trial court could also have found the January attendance records were more reliable than the June attendance records.  The June records contained a summary of absences and tardiness on a single page, which the appeals court noted was blurry and hard to read.  The January records included a “detailed accounting of the daily reports of attendance, absences, and tardies. . .”

Additionally, the court could have believed the father’s testimony that the mother was responsible for getting the child to school on the identified tardy and absent days.  The mother had admitted she was responsible on some of the days and did not remember who was responsible on the other days.

The appeals court found the trial court did not abuse its discretion in deciding to apply the standard schedule because there was substantial and probative evidence supporting it.

The appeals court found there was insufficient evidence supporting the award of attorney fees and remanded the case to the trial court on that issue, but otherwise affirmed the trial court’s order.

Walk into Court Prepared: Call McClure Law Group Today

A significant issue in this case is the conflicting evidence presented by the parties. Although the mother presented a witness to testify about the records, that witness was unable to explain the discrepancy.  If you are experiencing a custody dispute, a skilled Texas custody attorney can work with you to identify the evidence to best support your case.  Please contact McClure Law Group at 214.692.8200 to set up a consultation.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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What should parents do about exchanging their children under a Texas standard possession order when school is not in session due to COVID-19?

What should parents do about exchanging their children under a Texas standard possession order when school is not in session due to COVID-19?

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

This is a question that the family law attorneys with the Law Office of Bryan Fagan have been receiving with great frequency since the middle of March. Most family court orders in Texas determine possession and visitation based on the school year calendar for the school district or school that your child attends. Without that reference point many parents were left scratching their heads as to how to proceed. With there being some question as to what will happen with school starting up (or not) in the Fall, we figured it was a good idea to continue to provide answers to these questions as we head into the summer months.

If you have been keeping your child on a set schedule with at home learning then you and your family will be ahead of the game at least when it comes to maintaining a structured environment. Many children, however, are left to fend for themselves due to a range of circumstances. Talking to your children about these abnormal times can help them to process these changes instead of just reacting to them without any context about how or why they are occurring in the first place.

Since your child lives apart from both parents you can utilize this time as a great opportunity to begin to focus on co-parenting and working together to coordinate your messages to your children, child care during the summer and what you all will plan to do during the fall if school does not start up on time at the end of summer. As unpleasant as it can be to work directly with your ex-spouse on situations like this I can tell you from experiences working with many parents in our community that it is best for your children.

What are family law attorneys advising their clients during this time?

It is beneficial to have an attorney in your corner who not only knows the law but can guide you as far as what to do in the event that a problem comes up associated with possession or visitation. If you have an ex-spouse who is not honoring your court orders or has decided to not be flexible with you during this difficult time then you may need to hire an attorney to help you sort of your options.

Without knowing your particular situation, it is tough to give specific advice. If you do want to talk with experienced family law attorneys then you should contact our office today. We can schedule you for a no strings attached, free of charge consultation via phone or video. It’s in these conversations where your specific questions can be answered. Otherwise, we will do our best in today’s blog post to provide general advice that you can apply to your life.

I think one piece of advice that is not legal in nature is that you and your family should focus on one thing above all else right now: your health. This means that you should be aware of what the government is advising you to do as far as staying healthy. However, that does not mean that you should not work with your doctor and the pediatrician for your children as well. Common sense (which isn’t so common anymore) cannot be ignored during this time, either.

Showing your child how to act in a tough circumstance can be a lesson that sticks with your child for the rest of your life. More in caught than taught with children, in my opinion. I know that with my kids they will often “forget” something that I tell them, but they will remember vividly the things I do. The habits that you display for your children as far as your health and how to take care of yourself are incredibly important for your children during this time.

Simple things that we take for granted are habits that need to be ingrained into your child starting now. This means handwashing before and after meals and making sure that the surfaces in your home are regularly cleaned seem like little things in the grand scheme of things. However, I think we can all attest to the fact that little things can make a big difference in the lives of our families right now.

Social distancing a concept that we are all undoubtedly familiar with at this stage of the game. The idea of distancing yourself from people who may or may not be ill makes sense and in theory should have been something that we did even before COVID-19 or the coronavirus became parts of our vocabulary. We should all be making sure that our kids understand why we are behaving like we are and that they begin to keep in mind how to protect themselves from sickness.

Finally, staying healthy means keeping up with the news at events warrant it. I am not saying that keeping the cable news networks on your phone or television all day long is a smart thing to do. In fact, doing that may actually do more harm than good. However, you should find a reputable news source and refer back to it when updates occur in our area. For example, as the governor begins to roll out various openings for businesses you should know when and if those changes impact you and your family.

Help your child to keep things in perspective

Your child may be one, seven or seventeen years old. Depending on the age of your child you need to be able to help him or her be aware of the changes that are ongoing as we begin to live our lives in the age of COVID-19. Eventually there will be a vaccine for this virus. Eventually we will be able to live our lives more normally than we have the past seven weeks. However, we are not there quite yet. As a result, we need to help guide our kids through this time.

That does not mean that our kids need to live in constant fear of becoming ill, getting others sick or seeing family members get sick. Someone they know may get sick, but you should help your child to understand that we all have a responsibility to keep ourselves healthy. That is how we can show responsibility to others, as well. Striking a balance between staying healthy, distancing ourselves in public when need be and educating our children on steps they can take in the meantime to keep a proper perspective on this virus.

Look to your court orders when deciding how to proceed with possession and visitation

Unless you and your child’s other parent are able to come to a mutual understanding and agreement on alternative set ups for visitation and possession, you will need to abide by your court orders. Dig out a copy and make sure that you understand what is expected of you. Those orders are not optional and do not stop working in case of pandemic. They are still the rules and you need to follow them until told otherwise by the judge from your court.

The tough part about that is your schedule and ability to care for your children during this time may have changed a great deal. For instance, if you are ill, live with a person who is ill or are a member of the “at risk” population, then you may want to allow your child’s other parent to care for your child at least for the next few weeks. Again, getting the coronavirus does not mean that you will get ill. It does not mean that worse will happen to you. However, if we are aware of the virus being passed from person to person there is no use risking your health or that of your child’s.

It would make a ton of sense for you and your child’s other parent to work out between yourselves how you would handle a situation where one of you get sick. Hopefully that never happens but you want to be prepared. Until that would occur I think it would generally be best for little to change in regard to your court orders. For one, changing court orders between yourselves will become difficult to enforce. Secondly, it will be good for your child to live their life as consistently as possible in these days where there is no school.

If you and your child’s other parent can come to an agreement on an alternative scenario for possession or visitation this week, your circumstances may change next week and one of you would simply need to change their mind for the agreed to scenario to go up in smoke. This will cause anger, frustration and a disruption to your child’s schedule. It also promotes (in my opinion) a constant degree of negotiating and back and forth between you all when it comes to modifying the orders on the fly.

The whole point of going to court, hiring attorneys and submitting them to a judge for approval was to avoid being in a situation where those orders stop working right away or are able to be changed without a great deal of thought. Coming up with new orders on the fly with your ex-spouse may work for a short period of time but in the long run may cause more problems than it solves. Talk to your ex-spouse as soon as you can about how you want to handle future periods of possession/visitation that are disrupted by this virus.

Do not try to hide your being ill if you do get sick

At this point, I’m going to guess that a lot of us know a person who has gotten sick with COVID-19. Whether or not the person got gravely ill or was just under the weather, the sickness has spread to the point of most of us having come into contact with it previously. You may have even considered what you would do if you do get sick and have a visitation time period coming up with your child. You wouldn’t want to get him sick but you also do not want to miss out on a period of visitation.

What you should do is be completely honest with your child’s other parent about your situation. If you think that you have the virus or are just sick generally speaking, then it is not wise to be with your child right now if you can avoid it. This is when working directly with your ex-spouse on coming up with visitation arrangements is a good thing to do. Our lives have all changed as a result of this virus- at least temporarily. It would make sense that visitation and possession would change as well.

You should make sure that your ex-spouse has a plan (and that you do, too) if the other one gets sick. Alternative child-care, transportation logistics, extended family who can help, etc. all need to be worked out before either one of you falls ill. This is no longer a situation where you can just say that you got sick out of the blue. We are all aware of what can happen as a result of this virus. Now it is up to us as parents to help keep our children safe.

Questions about possession and visitation in the age of COVID-19? Contact the Law Office of Bryan Fagan

The attorneys with the Law Office of Bryan Fagan appreciate the time that you spent with us on our blog today. We post unique content here every day so we encourage you to return tomorrow, as well. In the meantime, if you have any questions about the material that we have discussed in this blog post please do not hesitate to contact our office. We can schedule a free of charge consultation for you with one of our licensed family law attorneys. These consultations can occur over the phone or via video to better suit your needs as we hopefully transition back into a more normal, and virus-free, routine.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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parenting time

Can I make up lost parenting time due to quarantine during the COVID-19 pandemic?

parenting time

Question:

Can I make up lost parenting time due to quarantine during the COVID-19 pandemic?

Answer:

I practice law in the state Ohio. Unless you live there, I
cannot inform you as to the specific laws of your state, but I can provide you
with general tips in divorce and child custody, as it relates to the COVID-19
pandemic.

Ohio courts have been very clear on this point. They have
indicated that all parenting exchanges and schedules continue to be in full
force and effect. If your child has not been on spring break yet, any time off
due to the pandemic would be deemed regular parenting time, and the scheduled
spring break would still be treated separately under the holiday schedule of
your county or orders governing your parenting time currently in effect.

However, if parenting time is missed, the courts will most
likely grant make-up time after restrictions have been relaxed. I have been
recommending agreement on the make-up time before forgoing the parenting time
itself to all my clients.

While it is clear the courts will still expect people to
follow the current orders, it is unclear whether such denials of parenting time
will result in findings of contempt. Under Ohio law, if there is a finding of
contempt, you can be entitled to receive a portion or even all your attorney
fees spent to prosecute the action.

However, the court has a lot of discretion in making those
awards. As such, I have concerns that the courts will likely find the denial of
parenting time during the pandemic a reasonable reaction, and thus, not
egregious enough to result in an attorney fee award. While this assessment may
be incorrect, it has been my experience that you only receive a portion of
attorney fees, never the whole amount even in the strongest of cases.
Therefore, I suggest establishing the make-up parenting time dates prior to
conceding parenting time.

I want to stress that this is in relation to the Ohio laws
and orders currently in effect. These health measures change almost daily, so
you need to be sure you are following up with the numerous resources offered
through your state to check and see what the current orders are. Many states
that have taken such measures still have carved out exceptions that include
parenting time exchanges, so again, be sure to carefully read the current
orders in effect.

Finally, if there is a lockdown and parenting exchanges
are not excluded, I would still expect courts to grant make-up parenting time
for any time missed during the pandemic.

To arrange an initial consultation to discuss divorce rights for
men with a Cordell & Cordell attorney, including 
Ohio divorce lawyer Daniel
White, 
contact Cordell
& Cordell
.

The post Can I make up lost parenting time due to quarantine during the COVID-19 pandemic? appeared first on Dads Divorce.

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Closed Courts Due To Coronavirus?  How To Fast Track Your Divorce

closed courts due to coronavirus

 

With the world turned upside down, and Covid-19 disrupting every facet and sector of life as we have known it, one ongoing and soon to be a repetitive problem is how to try cases when the courtrooms are closed.

Every week (and possibly month that passes) compounds the problem because it will take even longer to resolve matters like spousal support, the division of assets, and custody arrangements when divorcing parents can’t agree.

So, now what? The longer the courts are closed, the longer the delay in having matters adjudicated.

Closed Courts Due To Coronavirus? How to Fast-Track Your Divorce

The courts could be backed up for not only weeks, but months, and possibly years.

Many attorneys are urging their clients to opt for audio and visual face-to-face platforms to resolve their issues. With the rapid advancements in technology these days, a virtual courtroom could possibly take the place of an actual courtroom, as we have known it.

The use of technology may also save divorcing couples money as they proceed with their divorce process with little or no interruption. And, with the advent of even more human connectability online, it is even easier to get the judicial job done in most cases.

The following are a few suggestions to help you fast-track your divorce process if your case is one that was headed for the courtroom. In many cases, these recommendations could save you from having to endure that uncomfortable and nerve-wracking public courtroom trial, which at best is unpredictable.

There are no guarantees that your case will be heard as scheduled, as you matter may be continued or delayed due to the court’s schedule. These suggestions might also help you get on with your new life much more quickly.

1. Mediation and Arbitration: You may have already tried mediation or arbitration, but if you haven’t gone that route yet, consider it. There are plenty of agencies that offer these services, and with the stressful times we are living in, this approach could hasten a resolution and help you get to the finish line.

Five of the major organizations that provide these services in the Los Angeles area include: ADR (Alternate Dispute Resolution); JAMS (Judicial Arbitration and Mediation Services); ARC (Alternative Resolution Centers); AAA (the American Arbitration Association); and the Signature Resolution Panel. The latter was founded by a retired judge.  Most retired judges are highly qualified and seasoned.

2. Consider reaching out to others: Your family therapist, a clergy person, a trusted advisor—someone you both respect and admire, or let your attorney and your soon-to-be ex’s, sit down at the table and see if they can resolve your case outside the courtroom in light of these trying times.

3. Don’t get caught up in the petty stuff: Sure, you’re mad, angry, sad and likely experiencing tremendous trauma and distress, but do you want to prolong your divorce and battle over little things? Is it really worth it to you? Do you want to wait for what might be months to have your case heard/resolved?

4. Consider the drastic changes and times we now live in: If you have been in litigation for months or even years, reassess your priorities and ask if waiting even longer than you anticipated will further impact your wallet or peace of mind. The Covid-19 virus has been a wake-up call for many. Perhaps you have a new perspective on getting through your divorce, now; maybe it’s not sensible to wait for a re-opened courtroom

5. Hire a retired judge: This is my highest recommendation. There are many seasoned judges since retired, who work for many couples to adjudicate —preside over divorce trials—who are more than capable to try your case.

While this is often the choice you hear about when celebrities want privacy in their divorce proceedings (they don’t want their trials going public), it can work for you as well. This choice will also save time, reduce emotional headaches, and afford you ultimate privacy. You may think that hiring a retired judge might cost a fortune, not so. In total, fees and costs may be less than what you might spend if you wait for your trial to be continued in these uncertain times.

As I mentioned, your place in line is likely to be further delayed. Not only might your case be delayed, it may take weeks for you to get a date from the court. In sum, allowing a private judge to preside over your trial might be the smartest and more prudent thing you can do. And, you can do this via video conferencing. An added bonus: You won’t have to be in the same room as your ex. Video conferencing creates a presence for all, but eliminates the close proximity of being in the same space as your ex.  This arrangement helps to subdue a sense of intimidation.

6. No choice but the courts, immediately: Naturally, there are caveats to everything, and needing a restraining order for events such a domestic violence incident, lack of child support, and a parent not returning the child to the other, are examples that will need to be heard immediately.

While the courts may not be in session inside the courthouse, they are still taking ex-party filings and hearing those emergency cases. If you’re in immediate danger (violation of restraining order(s) or domestic violence, your ex absconding with your child(ren)), you can always call your local police department or fire department. They are trained to handle emergency situations.

My final thoughts are these: The welfare and safety, and the recovery of economic losses due to Covid-19, is where the focus will be in the coming days, weeks and months. Your divorce will likely take a back seat in terms of priority for you and your ex.

Confer with your attorney. Ask him/her to further explain these options listed above.  Ultimately, together you and your attorney will need to choose the most sensible course of action according to the issues in your matter.

The post Closed Courts Due To Coronavirus?  How To Fast Track Your Divorce appeared first on Divorced Moms.

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