ASSISTANT ATTORNEY GENERAL VI MICHAEL ABRAMS UNCONSCIONABLY DEFENDS CPS – PART 2 of 4
MICHAEL ABRAMS – ASSISTANT ATTORNEY GENERAL VI FOR THE STATE OF TEXAS – UNCONSCIONABLY DEFENDS CPS …
source
Posts
CPS: A CHILD KIDNAPPING AND CHILD TRAFFICKING RING? An interview with Amanda Burnett
On November 2, 2021, I interviewed Amanda Burnett about the abusiveness of Children’s Protective Services (CPS), and how …
source
THE LEFT IS COMING FOR YOUR FAMILY – DON HUFFINES WILL BE YOUR 1ST LINE OF DEFENSE AGAINST THE LEFT
During this panel discussion with several strong conservative activists, I mentioned that the state of Texas has 1500000 being …
source
BE PART OF THE SOLUTION. DO SOMETHING. Jeff Morgan
On August 7, 2021, I participated in an Equal Parenting Awareness Rally at Mountain View College in Dallas, Texas. This second …
source
WE SUPPORT PEOPLE AND TEACH THEM HOW TO ASSERT THEIR RIGHTS – MARK ESQUIBEL
In this third of six videos, Mark Esquibel began to talk about the various ways he and the like-minded people that he works with …
source
JUDICIAL ABUSE IN TEXAS: THE COURTS PROHIBITED ME FROM TEACHING MY SON THAT HE WAS A BOY
Texas Gubernatorial Candidate Chad Prather interviews Jeff Younger. In this second segment, Jeff tells Chad about the judicial …
source
BRAD NAMDAR: A NEW GENERATION REPUBLICAN DEDICATED TO A MORE PERFECT UNION
Dad Talk Today interviewed Brad Namdar, a “new generation republican dedicated to a more perfect union,” about a variety of …
source
Texas Custody Schedule Changed Due to School Absences
Originally published by Robert Epstein.
A 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.
Texas appeals court asked to reconsider same-sex divorce case
Originally published by On behalf of Laura Dale.
The battle for equal rights for same-sex couples didn’t end when the Supreme Court quashed the Defense of Marriage Act in 2015. New sorts of battles — many of them related to the way that same-sex couples were treated in the past — were just beginning.
One of those battles is determining what exactly makes a marriage when your marriage isn’t recognized under the laws of your state. Same-sex couples who were in long-term, committed relationships that fall technically short of the definition of marriage only because the parties were of the same gender find themselves facing this question often when such a marriage comes to an end.
Why does the date of a same-sex marriage matter if the couple is splitting? It’s simply because the start and end of a marriage is both a social and a financial contract. The date of a marriage often informs issues like how much spousal support a dependent spouse is due or what assets are really marital assets and subject to division in a divorce.
Now, the Texas Fifth District Court of Appeals is being asked to grant a new divorce trial to a man who split from his partner of 15 years just prior to the Obergefell v. Hodges decision that made same-sex marriage legal throughout the country. A lower court said that no marriage existed because there was no legal same-sex marriage in Texas.
The plaintiff and his attorneys argue that the couple did everything short of legally marry. They say that since they were prevented from doing so by a law that is now considered unconstitutional, that shouldn’t prevent the court from treating their relationship as a marriage.
Cases like this will, unfortunately, continue to come up for a long time into the future. That’s why same-sex couples seeking a divorce are wise to look for attorneys who understand their unique concerns.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Special Needs Trusts: What they are and how they can impact your Texas divorce
Originally published by The Law Office of Bryan Fagan, PLLC Blog.
Special needs trusts are designed to hold onto assets of a person who is receiving governmental benefits like Supplemental Security Income (SSI) and Medicaid. Whatever assets are held in the trust would be available to augment and add to the level of care that a disabled needs. The main force of the special needs trust is that the person would still be eligible to receive the government benefits that they need due to those assets being held inside of the trust, rather than at their ready disposal or usage.
There are two varieties of special needs trusts. For example, you could create a special needs trust for a child of yours who has a special need or a disability. That special needs trusts may be created by you, your spouse or by both of you under estate planning provisions. The other type of special needs trust is one where the trust is created out of the special needs’ person’s assets or money. These trusts will reimburse Medicaid for any funds spent on the special needs’ person’s behalf.
What impact will a special needs trust have on your divorce
If your child or you are receiving benefits from Social Security or Medicaid, those agencies provide only limited guidance for you and your spouse in a divorce setting. Special needs trusts can play an important role in the negotiation and settlement process in divorces because they allow for you and your spouse to plan on how finances will be handled immediately after a divorce. This is critically important when one of the parties or your children have a special need and rely in part on government assistance to receive medical care, pay bills or both. Spousal maintenance, child support, and other court-ordered payments can be held in these trusts.
Think about this example to better illustrate my point. Suppose that you have a fifteen-year-old son who receives $500 per month in SSI benefits as well as Medicaid. Within your final decree of divorce, your ex-spouse is ordered to pay you $750 per month in child support which is paid directly to you.
Under the rules of Social Security, 1/3 of the child support that you receive is excluded from income limits that go towards determining eligibility, only $500 goes toward the government’s calculation of income and assets to determine whether or not your child is eligible to receive SSI benefits and Medicaid. Even still, the $500 of support that counts towards the calculation will wipe out the $500 of potential benefits ($500-$500 = $0). That means no SSI benefit every month and no Medicaid to help pay for necessary medical treatment. You may have been planning the entire divorce to live in part on the child support and SSI payments. Now you are in a position where you have only one of those sums to count on for survival.
Here is how you can structure your final decree of divorce to protect yourself and your child in the future. The final decree of divorce should require your ex-spouse to pay the child support directly to your child’s special needs trust. That will allow you to slip by the government’s income/assets test and receive both SSI and child support. This benefits you and your child and does not harm your ex-spouse in any way. It is a win-win all the way around.
Yes, there are costs associated with creating a special needs trust. You may even have to hire an estate planning attorney to at least give guidance on the subject if not create the whole thing for you and your family. However, the short-term investment than hiring an attorney and creating the trust entails will be quickly canceled out by the increase in benefits and child support that you are fully able to take advantage of. Medicaid eligibility is a huge part of the equation, one that you may not be able to accurately project how much money you will save throughout your special needs child’s life.
The bottom line is that you can have your child support payments ordered to be put into a Special Needs Trust. The cash payments by your ex-spouse which instead be converted into distributions by the Trust whenever they are needed.
Take care of these issues before your divorce is over with
Another important point that I want to stress to all of you today is that you should do whatever it takes to have the issues settled before your divorce concludes. If you do not, you run the risk of having the SSI payments reduced by the child support (as we saw above) or lost completely due to your receiving child support payments.
Whenever a child support figure is set, whether by agreement or order from a judge, I would recommend that the attorneys in your case agree to hire an attorney who has experience creating special needs trusts. There are details that this attorney must be able to sort out and it is not common to find a family law attorney who is also a competent builder of a special needs trust.
As far as your final decree of divorce is concerned, it should order that your ex-spouse make a payment for your child’s special needs to the Trustee of the Special Needs Trust each month. The resources and programs that are available to you and your child should be considered when negotiating child support. A judge will do so, and it makes sense for you to consider that when making a settlement offer for child support. Also, you need to think ahead to the future to determine if your child will need either more or less care and therefore monetary support as he or she ages.
I know of some people who would tie the amount of child support paid to the amount of SSI benefits that are paid. They would take the amount of SSI benefits and subtract that amount from the amount of child support that would otherwise be agreed to. That reduced amount would be the child support figure that is agreed to. Here is why I think that is a bad idea and why I would advise a client against doing so.
If your daughter is disabled and your divorce decree states that there will be an offset of the child support obligation for each dollar received in SSI benefits, this does not take into consideration that your child’s needs may increase. You can try to go back to court in the future to have the child support orders modified based on a substantial change in the circumstances of your case and probably win on that basis. The increase would need to be reported to the Social Security Administration. This will cause a substantial decrease in the amount of SSI that your child can receive.
There is a chain reaction that follows this decrease in SSI benefits due to your divorce decree tying the amount of child support that your ex-spouse has to pay to the amount of SSI benefits that your child receives from the government. The lesser amount of SSI increases the child support obligation, so on and so forth. What you have done is set yourself up for a roller coaster ride of increases and decreases in the number of benefits you receive and child support that your ex-husband has been ordered to pay you. This will go on and on until the SSI benefits completely go away.
As far as I can tell, you should just agree to a specific dollar value for child support. Do not tie child support to the SSI benefits that are also received. Do not have the child support payments go to you directly, but rather into a special needs trust. Your case will not look exactly like any of these examples that I have provided you with today. With that said, I think these examples can paint a clearer picture of the circumstances that you need to be aware of. Along with your attorney, look into your options and you can plan a course for your case that benefits you and your child.
How will a judge determine that your child is disabled?
The definition of “disabled” changes depending on who or what group you are asking. The DMV may find your grandmother to be disabled just based on a note sent by her doctor. The military may declare you to be disabled when you are not able to pass several mental or physical tests. Social Security makes disability determinations based on the ability to work and earn a sufficient income for yourself to live on.
Your family court judge has their criteria to look to when determining whether or not your child suffers from a disability. Whether your child requires substantial care and personal supervision because of mental or physical impairment is an important part of the judge’s analysis. Those impairments must also render your child unable to care for himself or to provide a basic level of self-support. These impairments must be in place before your child’s 18thbirthday, as well.
If you are trying to establish in your divorce that your child is disabled, you are likely trying to do the same through Social Security to establish SSI benefits for him or her. The impairment must be expected to last for at least 12 months or result in the death of your child to be approved for SSI. AS I mentioned earlier, it is a job-based analysis that Social Security will undertake. If your child is not expected to be able to work on a full time, sustained basis.
It is likely that if your child has already been approved for SSI benefits, he or she would also meet the first part of the disabled test for Texas family courts. That is, your child would be unable to support him or herself absent monetary support from one of their parents (or both). Requiring constant supervision and care is not necessarily a part of the SSI analysis, but it would follow that requiring constant and around the clock, care would mean that your child is also unable to perform substantial gainful activities in the workplace.
If your child has not yet been examined by Social Security for benefits, then your child’s doctor’s will need to act as witnesses in a trial or hearing to help establish their disability. Often teachers will work closely with special needs children and are therefore great at testifying as to their limitations currently and their prognosis in the future. These folks have direct experiences with your child and are oftentimes stronger witnesses than medical experts who know nothing of your child beyond the medical records provided to them.
You may want to consider videotaping your child throughout a day just to give the judge an idea of what a typical day looks like for your child. What special needs does your child have? Do you have to go to great lengths to feed, bathe or care for your child? This can be especially powerful evidence if your ex-spouse testifies that your child’s condition is not that severe and that child support after adulthood is reached would not be necessary.
More on child support for disabled children in tomorrow’s blog post
Thank you for choosing to spend part of your day with us here on our blog. We enjoy sharing relevant information with you and helping the people in our community. If you have any questions about today’s blog please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week. These consultations are a great opportunity to learn more about family law, to ask questions of an experienced family law attorney and to receive feedback about your particular circumstances.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.