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.


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.

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