Which parent has the right to consent to COVID vaccine for child(ren)?

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In the next few months I will get the question, “I want to give our children the new COVID vaccine but the other parent won’t let me. Can I just give my kids the COVID vaccine without their father’s/mother’s consent?” Once vaccines roll out there is likely to be initial wariness about their safety and effectiveness until the full medical reviews are known. Concerned parents will want the experts to weigh in on the studies. They will want to know the consensus of the medical community on the various options.

If you have a Texas court order you should have specific rights and duties spelled out in the paperwork. In most Court papers those are in the first 5-10 pages. Look at your court orders to see what is specifically awarded to you and the other parent. If you have no court orders then the general law would apply.

Independent vs joint vs tiebreaker language

Texas Family Code 151.001 lists the usual rights and duties each parent is awarded. The one that would pertain this this question is the right to make invasive medical decisions. Court orders have this right spelled out specifically. Usually this right is an “independent” right, meaning the parent that has the child with them can make invasive medical decisions without the express consent of the other parent. They just have to inform the other parent afterwards. Sometimes the right to make invasive medical decisions must be “jointly” made by agreement of both parents. If this is how your Order reads then you must have the consent of the other parent. A more sophisticated Order will say these medical decisions must be jointly made, but if the parties cannot or will not agree then you follow the advice of the doctor. This would be “joint with tiebreaker” language. That would cover you if the doctor recommends something but the other parent will not consent.

If you are stuck and cannot get the other parent to agree then your option would be mediation or a court filing requesting the Judge give approval (or deny approval) for the vaccine. It will be a battle of the experts for the Judge to decide the best course of action. This could be an expensive and lengthy battle depending on your area’s court availability and the particulars of your case. It is best to consult with an attorney who is familiar with your local courts/judges and make a recommendation based on your specific facts.

Custody during COVID

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The Texas Supreme Court has issued a new Emergency Order, number 26, on September 18, 2020. It goes into effect October 1 and extends many of the provisions of prior orders. These Orders must be followed by all courts in Texas until they expire or are modified by another Order.

Specifically for Custody, the Texas Supreme Court’s order states:

“In determining a person’s right to possession of and access to a child under a court ordered possession schedule in a Suit Affecting the Patent-Child Relationship, the existing trial court order shall control in all instances. Possession of and access to a child shall not be affected by any shelter-in-place order or other other restricting movement issued by a government entity that arises from the pandemic. The original published school schedule shall also control, and possession and access shall not be affected by the school’s closure that arises from the pandemic. Nothing herein prevents parties from altering a possession schedule by agreement if allowed by their court order(s), or courts from modifying their orders on an emergency basis or otherwise…this Order expires December 1, 2020.”

This means that if you already have a court order in place then you need to follow that schedule. If your court order says visits start when “school begins” or when “school ends” then you need to follow the the published school schedule for when school starts and stops. Judges are undecided on those Fridays under an expended standard schedule. Should a non-primary parent have the ability to home-school at their house on the Friday instead of dropping off back to Primary parent’s house for the “school day” and picking back up from primary parent at the end of the “school day”? Your Order’s specific language is going to be key in this situation. Review it and see what says to make sure you are following it as best as possible.

Parents are strongly encouraged to cooperate and assist each other. The last lines of the Order says that. Judges in the central Texas counties have strongly stated that if one parent steps up and starts helping but then uses that as a reason for a future modification (or child support change) once COVID fears have subsided, the Judge will not look favorably on that parent. They want parents to help each other without fear of it being used against them later. For Example; if a Mom can’t stay home and has to go into work and Dad steps up and does the home schooling/virtual learning because his schedule can handle that, then Dad tries to later cancel child support or change custody based on the kids being with him every school day during the Fall, the Judge is not going to be impressed by that. This is an unprecedented pandemic and Judges are expecting parents to pitch in and help each other for the good of their children. We’re going to have to get to the other side of this and then take stock of what’s the new “normal” schedules for the kids before filing modifications.

Reimbursement Claims in Divorce

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Texas Family Code 3.401 – 3.410 deal with reimbursement claims. Reimbursement claims come up in Texas Divorces when a spouse owns property before marriage and still own it when the divorce happens. Yes, you can trace sold property into other purchases, but that’s a tracing issue and beyond the score of this article. The separate property owned before marriage is likely to stay “separate property” and so not divided as party of the Community Estate. However, the separate property may have been enriched by the community estate, and so, a spouse can ask for the separate property to repay the community estate.

The increase in the separate property is not a market value increase. It is only the difference in the secured debt attached to that property. The decrease in the value of the debt (reduction in principal) and increase in value any improvements (increase in market value to the property not out of pocket cost of improvements made).

DECREASE IN SECURED DEBT

How this usually plays out in a divorce is: a house owned prior to marriage, a few years go by, and now a divorce happens. Community funds were used to pay down the mortgage all those years. That’s a valid reimbursement claim, the reduction in the mortgage during marriage. That’s NOT the value of every mortgage payment! Mortgage payments are payments of principal, interest, and usually escrow/insurance all rolled into one. Reimbursement is JUST the different in the old mortgage amount at the time of marriage to what the balance is now, at the time of divorce. Vehicles owned before marriage, but paid down during the marriage, follow the same idea; value of loan at time of marriage vs. value of loan at time of divorce, difference is reimbursement claim.

INCREASE IN VALUE

Increases in the market value of the house are not considered in reimbursement claims unless the increase is based on improvements made (with community funds) during marriage. New pools, remodeled kitchens, large improvements, not paint and curtains. Even then, the reimbursement is based on how much the house’s value changed based on just the improvements. Usually an appraiser or realtor is called to give two values, one with the improvements and one if the improvements had not been done. That’s the number used for reimbursement claims not how much was actually spent in materials and labor on the projects. One person’s home makeover masterpiece is another person’s design fail. Beauty (value) is in the eye of the buyer.

Spouses can ask for offsets to reimbursement claims, but “use and enjoyment” is not an allowable offset if it relates to the primary or secondary residence. You can’t say a reimbursement claim is bogus because the spouse “would’ve been paying rent somewhere else so it should be even!” Family Code 3.402(c) forbids that.

Reimbursement claims are tricky, so it’s important to consult with a local attorney to know how to value the claims as well as how they ultimately affect division of the remaining community estate.

Custody when schools go virtual

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What happens to the visitation schedule when or if schools switch to a virtual learning schedule? Do children still follow the same schedule? Where do pickups and drop offs happen if not at school? Where would the child be if they’re not “in school?”

In most family law cases there is a court order the specifies the times and locations of pickups and drop offs. Texas cases have very detailed exchange days, times, and locations. If you have an existing court order, review it and make sure the answers are not already there.

Where the children will have virtual “school” time is not as clear. Some court orders provide that a parent’s time ends when they drop the child off for school in the morning, but the other parent’s time does not “start” until school is dismissed. Judges have not weighed in on whether the dropping off parent can keep the child at their house or if they need to go to the other parent’s house for “school” that day. Some parents may fight and want school only at one house. Others may not be able to work from home and so neither can have the young child alone at their house during school hours. Find a solution where school responsibilities are shared. Adjust the schedule as necessary to find the best fit as the schools and teachers work out the bugs in the system. Change is the only certainty. Expect modifications as the school year gets closer.

Parents are encouraged to think of creative solutions to their unique problems. Other family members, daycares, neighborhood resources/friends, all can be coordinated to assist those parents struggling to find coverage. The parent(s) who are solution oriented will avoid costly litigation and court. Do not think of it as you against the other parent. Think of it as both of you, as parents, against the problem. Solve it together.

Be fair, be equal, and work together. You don’t want the Judge, a stranger to your family and your children, at the courthouse deciding what’s best for your child(ren).

Ransomware Hack Disables Texas Appellate Courts

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Over last week and weekend (May 8 – 15) the Texas Appellate Courts and Texas Supreme Court have been the target of a ransomware hack that disabled their systems. See article on Law.com

The Appellate Courts have setup a temporary site at www.txcourts.net to assist litigants and maintain functionality while they sort out the issue. The courts have assured the legal community that trial courts were not affected, just the appellate courts. The appellate courts and staff are continuing to work on cases and conduct court business while the IT staff handle the issue.

Visitation and Custody with COVID/Corona concerns

Parents sharing custody have questions about how Corona Virus/COVID-19 affects their possession and access (custody) order. If there is a shelter-in-place order do the child(ren) still have to go with the other parent or should they stay in one parent’s house? If a school district “extends” spring break, or cancels the school year and now deems it “Summer break” for the students, does that mean a parent’s spring break holiday possession is also extended?

Shelter in place orders being issued by the larger Cities and Counties should not be used to deny custody to one parent. The Texas Supreme Court has issued an Opinion , their seventh opinion during the Corona/Covid crisis, specifically saying any shelter in place order shall not affect a Court-Order possession and access schedule. Parents are free to alter the possession schedule of both parents are in agreement.

Extensions of Spring Break, or cancellation of the school year, by a school district shall not mean a parent who has possession over the holiday then has an extended possession time with the children. Parents should continue to follow the same schedule as before. The Texas Supreme Court has issued a Opinion, their second opinion during the Corona/Covid crisis, specifically saying the school’s original published school schedule shall control. Possession and access shall not be affected by the school’s closure or change in holiday schedule due to the COVID-19 pandemic. Parents are still free to agree to an alternative schedule.

In short, do not deny a parent their time with the children using any COVID-19 or Corona panic. Do not deny a parent their time with the children because of a convenient school schedule change. Follow the same schedule as before. Naturally, on a case-by-case basis, if a confirmed COVID diagnosis has occurred in one parent’s house then denial of custody may be warranted. Fear of “possible” exposure or one parents perception of the other parent’s poor social distancing standards is not enough.

Emergency Motions can be filed requesting changes to the custody schedule, but extreme caution should be taken as Courts have limited availability during this time period. A consultation with a local family law attorney in your area will help you make the determination on whether a visitation schedule change may be warranted in your case.

Stalking and Harassment in Custody/Divorce cases

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What constitutes Stalking and/or Harassment in divorce or custody cases? Stalking and Harassment are both criminal acts, defined in the Texas Penal Code sections 42.07 and 42.072. B

Stalking is defined as when a person, on more than one occasion, knowingly engages in conduct that they know the other party will regard as threatening injury to the person or a member of their family, household, pets, or property. A reasonable person standard is applied, meaning that a reasonable person would need to feel harassed, annoyed, alarmed, embarrassed, or offended.

Harassment is defined as when a person, with the intent to harass, annoy, alarm, torment, or embarrass another, they: made obscene comments; threats of violence; give false details to another of the party’s serious injury; repeated calls/texts/messages that are harassing or annoying; or directs others to repeatedly call/text/message in a harassing or annoying manner. Intent of the perpetrator is the focus, and it can be inferred from their actions alone.

Note: Courts have found social media posts, even though not addressed directly at the other party, to be sufficient to violate these statutes.

Engaging in these activities is usually enough to warrant a police report, possible criminal punishments, and/or protective orders. Those who feel they might be receiving such communications should first warn the offending party that you will report their actions to police. If that does not end the harassing behavior then police, County Attorney’s office, or other law enforcement should be contacted to file a report. These crimes are some of the harder ones to prosecute, so unfortunately it takes a lot or actions that are particularly egregious to warrant more than a report being taken. Document as much as possible, and report as much as possible so the activities will eventually be seen as going to far with local law enforcement. A private Protective Order can also be requested through a private attorney if you feel law enforcement officers are not handling the problem. A Judge may feel a Protective Order is justified, and if that is violated much harsher punishments are levied against the perpetrator.

Does child support have to go through the attorney general?

A lot of clients and potential clients do not want to send child support through the attorney general’s office. The reasons vary from personal preference, wariness of government oversight, and a desire to maintain control over child support payments going to the other parent.

In Texas, child support must be paid through the Attorney General’s State Disbursement Unit. See Texas Family Code 154.003. A Judge must require the child support to be paid in this manner. Withholding orders taking the funds directly from a paycheck is also required. Depending on the Judge in your case, they may allow parties to agree to no formal “child support” but instead for the parties to share specific child related costs, i.e., daycare, after school care, or extracurricular activities. Some Judges have a distrust of such arrangements. Oversight is less stringent and proof of payment, or lack of payment, is much harder. This is especially true if the parent who would be paying child support is a high earner and the one receiving is a low earner. Such requests make the Judge suspect one side is just trying to get out of paying child support and taking advantage of the lower earning spouse.

Paying child support through the attorney general allows them to track the payments coming in, calculate past-due amounts, and track interest on the past-due amounts. It makes enforcements much easier to have a quick reference for how much is actually owed or not owed. Having formal child support also allows the funds to be automatically withheld from a paycheck through a withholding order, which solves a lot of non-payment problems.

In short, guideline child support is required to be cycled through the Attorney General’s child support office. There are ways around it, but Judges are wary of such games for fear that the custodial parent might be being taken advantage of by the more dominant parent.

Holiday Visitation; When it begins and ends

I receive many calls when the Holiday season arrives. There is usually confusion when a parent’s holiday visitation starts and ends. Does it start on the day of the Holiday, the day before, the weekend before, the Monday before? There’s no end to the interpretations I hear.

In Texas, the custody and possession orders will define “school” to be the actual campus where the child attends for education. If the child is not of typical school age, i.e., Pre-K or younger, then the visitation schedule follows the holiday calendar of the local school district where the child resides.

Daycare schedules DO NOT dictate the holiday visitation schedule. Yes, a parent can use the daycare while they are at work, but pickups and drop offs would be at the discretion of the parent who has the child with them over the holiday. Most daycares do not have the same attendance requirements as schools.

It is important to check your specific Order and make sure of the terms used. If a holiday starts “when school is dismissed” for the holiday and the holiday ends “at 6:00pm the evening before school resumes,” then you check the school’s calendar to see when school lets out for the holiday and when it resumes. If school lets out on Friday and the following week is a holiday then that’s when the holiday visitation starts, when school is dismissed on Friday, not the following Monday. If school resumes on a Tuesday after the holiday then the holiday visit ends Monday evening.

It is important to review your Court Order, find the holiday visitation section, then review the school calendar for where the child(ren) attend school. Those give you all the information you need to determine you holiday visitation beginnings and ends.

De Novo Hearings from Associate Judge’s Court

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When you have a hearing in front of an Attorney General Judge that’s usually an “Associate Judge.” That’s a Judge who’s been hired by the local County to perform certain tasks to free up the main Court’s schedules for other types of cases. In larger Counties they may have multiple Associate Judges handling a variety of things from Attorney General cases, Protective Orders, or daily short matters like agreements or quick hearings like Temporary Orders.

When you have a hearing it’s important for you to find out whether your Judge was an Associate Judge or one of the usual, elected, County or District Judges. If it was an Associate Judge, and you get a bad outcome, you do have options for another hearing, but you need to act quickly.

In Texas, Family Code 201.1042 and 201.015 layout what steps you should take and the deadlines to take them.

You have “three working days” i.e., business days, to file a “de novo” hearing request. This is your request to have a do-over hearing on the same topics in front of the main Court and not the Associate Judge’s court. You have to file a specific Notice with the clerk and forward a copy of the filing to the other parties (and attorney general if they are involved). The request must specify the issue that will be presented to the referring court. This means the topics you think the Associate Judge got wrong any why. It doesn’t need to be a full scholarly legal article, just a general outline of what went wrong (in your mind) and what the Judge missed, like evidence that was excluded or you feel wasn’t given the proper weight in making the decisions.

Once the Notice is filed the referring court then has 30 days to hold the do novo hearing. This last step is usually where most unrepresented parties fail. It’s up to the party filing the request to get that hearing scheduled (don’t forget to coordinate the setting with the other parties) and get it properly setup.

Check your local rules in whatever County you’re in to make sure you set the hearing and give proper notice to everyone to make sure when you show up you are ready to go forward on the hearing. Don’t forget, this is a brand new hearing so be ready to start from the top and go through it all again with evidence, testimony, witness, etc.

Hiring an experienced local attorney will greatly help you through this process. If you tried to represent yourself the first time and things didn’t go well, it would be a good idea for you to hire someone to represent you and put your best case forward at the de novo rehearing.