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.