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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’s your role in the school nativity?

What’s your role in the school nativity?

Your child has been chosen as Third Shepard in the school nativity. That sinking feeling you have isn’t because they didn’t get a starring role. It’s because you know you did. Turn up to the play (like you want to) and you’ll be cast as the Judas. Stay away and, well, you’ll be cast as the Judas. There’s no winning. You’re between a rock and a hard place.

But what if you cast yourself – as the grey rock?

What if for these few precious moments of Away in a Manger and little Johnny dropping baby Jesus you can be just a normal dad sat watching your little one play the best third shepherd that has ever been played?

As we prepare for the Christmas season the levels of control and opportunities for conflict hit fever pitch. With all your emotions to play with your ex will feel like all her Christmases have come at once. And I don’t want to speak for you here, but I don’t think she was on your Christmas list was she? So let’s not give her what she wants.

Just like the teachers have handed out all the roles and helped the children practice their lines. She’s been doing exactly the same. Telling all her friends the stories, probably the children too.

Now don’t feel rubbish about that.

You and thousands of others are going through the exact same thing right now. I promise you there is never a reason to actively try and destroy a healthy relationship between a father and their children. Even if you did say her sister looked hot in that top once.

Between personal experience and community groups I am still dumbfounded, shocked and devastated by the things I see guys go through to be with their children.

Let me say, my Dad wasn’t at one single school play, parents evening or awards ceremony. In fact until I was 12 it was my reality that he wasn’t at all interested and had abandoned us. Last year (aged 35) I put up Christmas decorations with my dad for the first time ever. It was and will always be one of my happiest childhood memories, even if it did come 30 years too late.

I tell you this now because I want you to know a child’s love for their father can beat this situation your’e in. Despite having no memories of my dad and only one single photograph of us together it was enough that I never gave up hope he might love me.

So how do you show up to the school play without taking centre stage?

  1. Choose your performance. By far the easiest option is to see if there is more than one performance planned. If so you can arrange to go to the opposite one to your ex-partner. It doesn’t absolutely guarantee you won’t need these next steps too but hopefully it will give you a fighting chance.
  2. Practice your lines. Know that there is a good chance someone will wind you up, your ex, a teacher, one of their friends. Now this may be a deliberate attempt to provoke a reaction or the simplest of comments that digs away at one of those hot buttons we all have. But either way, preparation is key. Understand what is likely to piss you off and what is likely to be water off a ducks back. Then have some stock answers for the things that will piss you off. Literally write out and practice your lines, role play, pretend you’re a grey rock in the play.
  3. Choose your state. Rushing from a stressful meeting at work, through crappy traffic worrying you’re going to be late and skipping lunch will not help the best you show up. So physically prime yourself. Allow yourself time to do something that makes you feel amazing just before you go in, gym, swim, walk the dog, anything that will physically make the endorphins happen. You’ve seen Braveheart and Gladiator – those dudes went at battle in the best possible physical and emotional state for a reason.
  4. Know you can leave at any point. If things do take a turn for the more theatrical then exit stage left. Take things as far away as possible from an audience and go home if that’s what it takes. At all costs avoid a public display of crazy. (saw one of those in town today – I think someone had been a very naughty boy!)
  5. Take a calming influence with you. There’s always that one mate who tries to be a diplomat and calm things down. The one who seems to take life horizontal in all ways. They are a great person to have by your side. Especially if they know your little one too. On that note, while of course your new partner has the right to see the little on in the play I would ask if this year is the most important time for that to happen?

If you’re wondering what a grey rock reply looks like, we’ve written up some lines to inspire you… These are designed to be non-confrontational and give little wiggle room for false accusations.  Naturally you’ll want to rehearse them in a ‘Hugh Grant in Love actually’ rather than a ‘Bruce Willis in Die Hard’ kind of character!

I understand.

Yes.

No.

Acknowledged.

Ok.

Thank you.

That does not work for me.

I will think about it.

I do not agree.

That information is wrong.

I intend to follow the court order exactly as it is written.

I do not agree with your version of reality/history and choose to disengage now.

I see things differently.

Received and noted.

Please comply with the court order/parenting plan.

I will be following the court order/parenting plan.

I will think about that and email you later.

Unless something has changed, my previous position has not.

I hope you find peace with whatever you are struggling with internally that causes you to respond in a negative manner continuously. I wish you the best.

I do not feel these misrepresentations warrant a response, I see no purpose to this exchange other than to increase / incite conflict. As such, I am noting my objection and your attempts to portray me in a negative light.

I will continue to comply with the court order/parenting plan as consistency is in the best interest of the children.

Just because you say something does not mean it is true. I will abide by ​the court order/parenting plan.

I am not going to participate in your perceived conflict.​ ​I will abide by ​the court order/parenting plan.

You will just need to make your best parenting decision.​ I will abide by ​the court order/parenting plan.

You’ll need to discuss that with your therapist or solicitor.

Your attempt to elicit a negative response from me has been noted.

I will not respond to false accusations and manipulations of events.

Wishing you all the best this festive season,

The Nurturing Coach Team

The post What’s your role in the school nativity? appeared first on The Nurturing Coach.

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